The European Union passed its proposals for the import licensing of cultural property on April 9, confirming the decision in its official statement and publication of the new regulations on April 17. What was eventually passed remains highly controversial and will undoubtedly cause problems. This is because despite more workable and reasonable measures being agreed on as recently as February following consultation with Member States and their legal advisers, the adopted version appears to have ignored their wishes and reverted to an earlier set of proposals instead.
What are the salient points of what has been adopted?
Importers of any archaeological artefacts aged over 250 years originating from outside of the EU will have to provide paperwork showing legal export from the source country under the laws of that country at the time of export regardless of the items’ value. It should be remembered that this does not just apply to artefacts from the Levant or North Africa, but also to Asian art, Islamic art and Tribal art of all types, from the Oceanic art of the Pacific to the native tribal art of North and South America, as well as Australia.
In many (if not most) cases it is likely to prove impossible to provide such proof because of how far back in time the original export might have taken place, the difficulty in identifying when that was, the likelihood that no information exists on what relevant laws applied at the time and the almost certain lack of paperwork. Where this is the case and either a valid export licence from the source country or other paperwork establishing legal export are not present, the regulations allow for a derogation in two very limited exceptional circumstances as long as it can be shown that an item was legally exported from the last country where it had been located for an unbroken period of more than five years. The first is where the source country cannot be reliably identified, while the second is where it can be shown that the item in question was exported from its source country before April 24, 1972, the original enforcement date of the UNESCO Convention. This latter condition ignores the fact that the accession dates of respective countries to the Convention were all years, if not decades, later, and so introduces more restrictive measures than the source countries themselves have ever agreed to. It is likely that most of these countries are not aware of this EU decision.
What this appears to mean, in effect, is that anything legally exported from source countries after April 24, 1972 would not be recognised as licit for the purposes of import to the EU unless it is actually accompanied by a valid export licence.
Take, for example, Egypt, which continued to export artefacts legally until 1983. Under the new regulations, an item legally exported from Egypt in 1978 accompanied by reasonable paperwork showing this, but not an actual export licence, might still be deemed illicit for the purposes of import to the EU because it was later than April 24, 1972.
Sting in the tail of importer statements
Paragraph 7 of the new regulations make it clear that the definition of cultural property they adopt are based on the 1970 UNESCO Convention and the 1995 UNIDROIT Convention. However, while the UNESCO Convention only addresses items of importance, the terms of the new EU regulations are far wider ranging, encompassing all archaeological artefacts regardless of value. This will render the import of many licit items uneconomic, while the extensive customs processing period of several months will also prove a problem for dealers standing at fairs or both dealers and auctioneers selling on to clients.
For everything else, from paintings and drawings to sculpture, historical items, flora and fauna and so on, importers will need to provide importer statements warranting legal export from the source country – backed by the relevant documentation – if the item in question originated outside the EU, is more than 200 years old and valued at more than €18,000. Again, this is likely to have implications for dealers, auctioneers and collectors for the reasons given above.
Importer statements may seem like a softer option, but the risk in using them could actually be greater. This is because the declarer takes on legal responsibility for the statement they issue and the status of the item being imported. This means that where an importer acts in good faith, providing the relevant paperwork to support the statement, they could still be held liable under the new regulations if it is later discovered that the item had been stolen or illegally exported at an earlier time, before it came into their possession. The authorities have made it clear that sanctions for those who breach the new regulations will be severe.
The stated purpose of these regulations is to prevent items that might have funded terrorism from entering the EU. Given that no member state, nor the European Commission’s own research for the purpose of drawing up these regulations has found any evidence at all of this happening, the measures fail to meet the EU’s own standards of proportionality when taking the possible ensuing damage to the international art market into account. Bearing in mind that existing stringent sanctions relating to Syria and Iraq already apply within the EU for this purpose, it would have been much simpler and cost-effective to extend them to cover Libya, Yemen and any other source country identified as being at risk.
Our fellow association, the International Association of Dealers in Ancient Art (IADAA), intends to continue working with stakeholders – including undertaking a legal review of the adopted terms – to ensure that the measures are adapted to a more workable formula prior to enforcement, which cannot take place until the European Commission has introduced a fully operational electronic system to manage the process, and this is not expected to happen for another five or six years. It will be at least two years before the EU confirms whether funding for the electronic system will even be in place. The money will only be forthcoming if it is deemed a priority in the EU’s 2021-27 budget.
The World Customs Organisation published its latest report into illicit trade in December.
The size of any problem can be assessed under four variables: the number of cases, the number of seizures, the volume of seized material and the value of that material. As the ADA and IADAA have always argued, by any of these variables, Cultural Heritage – of which Antiquities form only a part – barely registers as a problem area among the risk categories listed.
IADAA has conducted its own potted analysis of the 205-page WCO report as a user-friendly guide to the findings, which includes a direct link to the original report for verification purposes.
As the analysis and the original report show, at one end of the scale Drugs-related cases make up 47.7% of global trafficking; at the other, Cultural Heritage represents 0.2%. Likewise, when it comes to the number of seizures, Drugs accounts for 42.8%, while Cultural Heritage covers 0.2%. The next smallest category in each of these measures is Environmental Products, which accounts for 2.7% and 2.3% respectively. Even these figures are, respectively, 16 times and 14 times larger than the Cultural Heritage measures.
All of the above also needs to be taken in the context of a more proficient international Customs operation that is better able to cope with Cultural Heritage than ever before, according to the WCO, with twice as many countries submitting data as the previous year (25 compared with 13). Despite this, the number of cases has slightly fallen, while the number of seizures has only risen from 158 to 167. Compare that to over 40,000 cases and over 43,000 seizures involving Drugs.
An exact assessment of values is not possible because the information is simply not available – although the report estimates the global illicit trade in Environmental Products to be worth between $91 billion and $250 billion. What is clear, however, is that, Cultural Heritage aside, the value of material seized in every other category must be worth at least in the hundreds of millions of dollars if not more.
When it comes to Cultural Heritage, although the number of cases has fallen and the number of seizures has only risen slightly, the number of items seized has increased from 9,931 to 14,754. These include all types of items across the range of categories covered by Cultural Heritage, from books & manuscripts and paintings to household items, jewellery, weapons, engravings and lithographs, as well as film and sound archives, the last of which makes up a very large number of items seized (3,169, according to the WCO report).
Antiquities make up 8725 items, a rise from 8005 in 2016.
It is reasonable to assume that the WCO will include images of its most important seizures in the report. If so, then the quality of what has been seized is generally very low grade indeed. Bizarrely, they include a haul of long playing records seized in transit from the Netherlands to Turkey. As it is not illegal to export LPs from the Netherlands, it is not clear why they were seized.
The overwhelming majority of Antiquities items pictured are broken potsherds and coins – items that would not be covered by the UNESCO Convention.
As the IADAA analysis points out: “The only items of significant value pictured in the report have nothing to do with customs work, nor were they seized, but voluntarily returned when their owners/holders discovered that they might be tainted, so it is misleading for them to have been included”.
In summary, although this is not a scientific assessment, if the images used to illustrate the quality of antiquities seizures in the WCO report are anything to go by, a generous over-estimate of the value of items seized would be around $500,000. To put that in context, that is around 0.001% of the value of the next smallest category at most.
How Interpol are adding to the problem
If Customs are much more efficient and twice the number of countries – from all regions – are submitting data, where is the massive haul of cases and seizures one should expect if Cultural Heritage trafficking is the problem that anti-trade campaigners, politicians and others would have it? As the WCO itself concluded in its 2016 report: “As Customs officers become increasingly proficient in seizing both large and small shipments of cultural objects, the data can suggest that illicit trade is on the rise when, in reality, levels of trafficking may be holding constant or even decreasing.”
This also gives the lie to Interpol’s claim (as published on its Works of Art Crime home page) that “The black market in works of art is becoming as lucrative as those for drugs, weapons and counterfeit goods” – a claim it confusingly contradicts on the FAQs accessed via the same page. This is important because the European Commission and Parliament, among others, have used this headline claim by Interpol as evidence justifying the introduction of stringent new import licensing regulations in the EU.
IADAA was able to demonstrate during the consultation and negotiations over the import licensing proposals that even the European Commission’s own researches failed to find any problem at all, yet it insisted on pressing ahead with unnecessary and damaging legislation.
This summary analysis is being forwarded to those conducting the follow-up study commissioned by the European Commission after it expressed doubts about its original research. Hopefully these WCO statistics and other findings will make a difference.
The ADA has been working closely with IADAA to contribute important last-minute contributions to the Trilogue negotiations in Brussels on the import licensing issue.
The talks must settle on a proposal that compromises between proposals and amendments from the European Commission, Council of the European Union and committees within the European Parliament.
We still have significant concerns over compromise amendments being put forward for the final vote and so have joined with IADAA, CINOA and the European art Market Coalition (EAMC) to present a series of comments and objections for the art market to the office of Daniel Dalton MEP, rapporteur of the proposals, at his request, for consideration.
Key areas of concern included potential human rights breaches occasioned by proposals to restrict how owners may keep antiquities; further rights breaches based on proposals to reverse the burden of proof in showing an item to be untainted; inconsistencies with the application of the UNESCO Convention; value thresholds for qualifying works; delays in processing of licence applications and importer statements; and concerns over possible enforcement prior to a compulsory electronic system being fully operational.
A number of important questions remain on top of this, such as who will provide the necessary expertise for customs and how valuations will be conducted and confirmed. At present, the proposals are so complex and confusing that in places they contradict each other, which will not aid compliance. We have asked for any final proposals to be made simple, clear and user-friendly.
For some time now, anti-trade campaigners, NGOs, politicians and even international law enforcement agencies have stated that trafficked antiquities are the third largest source of terrorist financing after trafficked drugs and weapons. These claims have always been unsubstantiated and although Interpol quotes a similar claim on its Art Crime page (“The black market in works of art is becoming as lucrative as those for drugs, weapons and counterfeit goods”), it then contradicts this in detail in the Frequently Asked Questions on the same page.
Now, however, the World Customs Organisation has included figures for trafficked cultural property, including antiquities, in its annual report for the first time and this gives us a clearer picture of what the situation really is. In summary, this is what it says:
Number of Seizures
Weapons and ammunition: c.4500
Cultural property: 146
Of which antiquities (mostly coins, seals and jewels): c.70
So in terms of the number of seizures across these three areas, drugs account for 90.6% of seizures, weapons and ammunition 9.1%, cultural property 0.3%, of which antiquities account for 0.14%.
Although there is no direct correlation between the three areas in terms of volumes seized, summary totals give some indication of comparative scale:
Drugs: c.1.5 million kilos
Weapons and ammunition: c.2.5 million pieces
Cultural property: 8483 items
Of which Antiquities: c.6600 items (including coins)
- Drugs: 1 million kilos of cannabis, 180,773 kilos of cocaine, 99,000 kilos of khat, approx. 200,000 kilos of opiates, psychotropic and other substances. Total c.1.5 million kilos. Number of seizures: c.45,000.
- Weapons & ammunition: number of pieces seized c.2.5 million. Number of seizures: c.4500.
- Cultural Property: 8483 objects seized (Of which Antiquities c.6600). Number of seizures: 146. (Of which Antiquities c.70)
Also included in the report are figures for seizures linked to environmental (i.e. animal and plant) products. Again, exact comparisons are not easy, but the number of seized items alone rises towards the 750,000 mark, while the total number of seizures reported was 2225.
ADA adviser Ivan Macquisten has written a detailed analysis on the upcoming changes in data protection regulations for the EU for The Art Newspaper. This includes the Information Commissioner’s Office advice on what steps for businesses to take now. These changes will affect all businesses operating in the market to some degree. You can read Ivan’s article at this link.
The Committee For Cultural Policy has highlighted the devastating theft of Viking material from the University Museum of Bergen. The burglary took place on the weekend of August 11-13 when the thieves climbed scaffolding to a seventh-floor window, broke in and stole 400 artefacts that were in temporary storage.
Full details available from the Committee For Cultural Policy website.
Further theft alert
This Egyptian stele, pictured right has been stolen from the Musée de Marseille. It is 24cm x 17.5cm x 7cm. Please contact the police if you see it.