So what is due diligence?

So what is due diligence?

How do those buying antiquities protect themselves and the public?

Anyone buying items online needs to ensure that what they are paying for is genuine and that the seller has the right to sell them. That’s true for ordinary household goods and consumer wares, and especially true when it comes to the trade in antiquities.

The two trade associations supporting the Antiquities Forum, the UK-based Antiquities Dealers’ Association (ADA) and the International Association of Dealers in Ancient Art (IADAA), have long pioneered policy on this. Having a clear and effective crime-prevention policy is the best way of safeguarding their members and their members’ reputation, as well as boosting confidence in the trade among the public. It is also essential for preventing ancient artefacts being exploited by the unscrupulous.

In doing this, the two essential considerations are Provenance and Due Diligence. But what do they mean?

Provenance is the history of an object, tracing its ownership back as far as possible to ensure that it remains an item that can legitimately be traded. The ADA sets out a detailed summary of the different types of provenance an object can have, what that means and why it is important, on this website.

Due diligence, meanwhile, is the process which trade professionals undertake to ensure that the items they are handling are authentic and can be traded legitimately. It is important to remember that in the event of any legal dispute, the effectiveness of the due diligence undertaken by those responsible will be taken into account.

Effective due diligence is a vital part of protecting traders’ good reputations, which are essential for success in business.

What the associations have to say

The ADA sets out the process of due diligence for its members as follows:

Before offering property for sale, members must be satisfied that they have conducted the level of due diligence required to establish that the property they are handling is authentic and that there are no known legal obstacles to selling and passing title.

The ADA requires members to adhere to the relevant domestic and international laws that govern the markets for archaeological and ancient property and, in many respects, ADA standards go beyond the legal requirements.

If members are not certain as to the laws of a particular jurisdiction, or their application to a specific item, please consult the ADA Council for advice.

Members must act in good faith throughout all transactions.

Members should record each transaction with diligence and keep records for a minimum of 6 years.

Where a member is buying from another dealer or an auction house then the member should record the transaction and note the provenance as provided. Some items will have more detailed provenance than others.

Where a member is buying from a person other than a dealer or an auction house then the member should establish the identity of the vendor. Unless the vendor is well known to the dealer, where an item is worth over £3,000 then member should request photographic identification and if practical take and retain a copy of it. Members should obtain in writing:

  1. The name and address of the vendor;
  2. A warranty that the vendor has good title to the objects;
  3. Confirmation of where, when and how the vendor obtained the objects, as can be provided by the vendor;
  4. Where the vendor acquired the objects outside the United Kingdom, confirmation that the item has been exported or imported in conformity with local laws and where available evidence of that.

In addition, wherever possible members should arrange payment by a method that leaves an audit.

Lawful Trading

Members undertake to carry out due diligence, as set out under this Code, to ensure, as far as they are able, that objects in which they trade were not stolen from excavations, architectural monuments, public institutions or private property and are lawfully on the market for sale.

Members will make all reasonable enquiries to ascertain earlier ownership history of any object they are considering purchasing, mindful that the illicit removal of archaeological objects from their original context is damaging to our knowledge and understanding of the past.

Members have a duty to record and preserve relevant prior ownership history of an object along with any evidence supplied.

Stolen Art Databases 

“It is a condition of membership that all goods acquired at the purchase price of £3,000 or more be checked with an appropriate stolen art database, unless they have already been so checked.’

No system is perfect and many items have very little documented information establishing a detailed history going back decades or longer. This does not necessarily mean that there is anything wrong as there can be a number of valid reasons for this: for instance, paperwork may have been lost or not kept – in the past, such information was not deemed important, as it is today.

As can be seen from the due diligence requirements set out above, however, a higher level of checking is demanded for higher value items.

Market professionals also tend to have effective antennae for picking up ‘red flags’. Remember, just like anyone else, they do not want to hand over ready money for something that may later turn out to be a problem.

Additional things they look out for include items that are significantly under-priced, as this may point to someone handling stolen goods trying to offload them. Another thing to check is how credible the seller is as a source of the material being offered.

The ADA and IADAA have both been proactive in developing due diligence over the years. Indeed, UNESCO’s code of conduct in this field was based on the earlier code published by IADAA.

Both the ADA and IADAA provide further advice on their websites at www.theada.co.uk and www.iadaa.org

Italy rules in favour of private property rights for cultural heritage

Italy rules in favour of private property rights for cultural heritage

Ministry’s legal head reinforces ‘innocent until proven guilty’ principle in interpreting law

The Italian Ministry of Culture has issued a potentially ground-breaking statement, following a court ruling. It challenges current thinking on cultural heritage and patrimony and reinforces private property rights.

Essentially the statement addresses conflicting priorities between private property rights and the Italian state’s desire to protect its cultural heritage, and how this conflict addresses proof of ownership.

Recent years have seen a significant shift in attitudes among state authorities and law enforcement towards the idea of reversing the burden of proof regarding the legitimate ownership of antiquities and ancient coins. This is despite private property rights being enshrined in all fundamental clauses of international human rights conventions and in both common law and natural justice. Guilty until proved innocent has almost become the new normal.

Now, however, comes evidence of a fight back against this fundamentally undemocratic idea. This statement is one of them, and it has an additional welcome twist.

It arose after Italy’s Directorate-General of the Department of Archaeology, Fine Art and Landscape sought advice from the legal department on how to interpret Article 72 of the Cultural Property Act. As Coins Weekly notes: “This article governs the import of archaeological (numismatic) objects originally from Italy and demands extensive proof of origin.”

The legal department’s head, renowned professor of law Antonio Tarasco, came back with a surprising statement, acknowledging competing views. On the one hand, some lawyers argue that protecting Italian cultural heritage is a priority that renders significant objects as state property unless private ownership can be proved (reversal of the burden of proof); on the other are lawyers who argue that private ownership should take priority except in the most exceptional circumstances.

Law professor acknowledges Court of Cassation ruling as precedent

This dichotomy led the professor to look at the part documentation has played over the years in establishing ownership rights for coins in Italy. The first thing he noted was that as late as the 1980s, retaining proof of purchase was highly unusual. But he also noted that in 2009, his department insisted that “proper documentation issued by the countries of origin” was essential in establishing the lawful circulation of objects.

Importantly, this meant that any certification issued on import had to be renewed at the appropriate time or the Italian State might take possession of the item in question.

Fast forward to 2021, however, and Italy’s Court of Cassation – the highest appeal court which focuses only on how laws are interpreted – re-established the priority of private ownership without automatically having to provide supporting documentation (innocent until proven guilty).

Professor Tarasco points out that this meets the test of proportionality and reasonableness (just as the ADA has been arguing needs to happen with the EU import licensing regulation 2019/880). Of particular note is what Professor Tarasco has to say about this: “Forcing citizens (be they collectors or professional numismatists who buy abroad) to provide (almost fiendishly extensive) proof of the legitimate origin of the coins they buy, which must even date back to before 1909 [when Italy’s patrimony law was passed], is ultimately making it more difficult to buy – and therefore import into Italy – significant numismatic material that may one day enter public collections.”

The welcome twist Professor Tarasco adds at the end of his statement argues that making imports more difficult is actually damaging to Italian cultural heritage: “If we look closely, we can see that this approach – even if applied with good intentions – will not result in Italy protecting its national cultural property, but rather losing it.”

A fascinating statement from the head of the legal department of Italy’s Ministry of Culture, then. With all this in mind, how does Professor Tarasco view Italy’s application of Article 4 of the EU regulation 2019/880 from June 2025? It insists on the sort of “fiendishly extensive” documentation and evidence that effectively reverses the burden of proof in the way he decries here. And how does he feel about the Memorandum of Understanding Italy shares with the United States, which does exactly the same?

Professor Tarasco has highlighted the importance of proportionality and reasonableness here – qualities echoed in the European Commission President’s guiding principles for policy. If the Italian government’s leading legal authority on the issue, together with its highest court, acknowledges that private property rights have priority over what may be seen as the national interest in this way, how can it continue to move forward with either the new EU law or its MoU?

How will the EU’s new import licensing for art and antiques affect you? Here’s a brief guide

How will the EU’s new import licensing for art and antiques affect you? Here’s a brief guide

When the new import licensing regulation for cultural goods (2019/880) comes into force in the EU on June 28, 2025, what goods will be affected from the world of art and antiques?

According to the law, relevant items – all of which must have originated from outside the EU – will be split into two types: those that need a full import licence, and those that can be brought in on the basis of an importer statement.

What those items are is set out in a series of three tables in the Annex to the legislation, Parts A, B and C.

Any attempt to import an item covered by Part A will be prohibited if it is deemed to have been exported illegally from its country of origin, whenever that was.

Items included under Part B are more than 250 years old and seen as being at greater risk of looting and trafficking than those covered by Part C, and so are subject to tighter rules – in other words these are the pieces that need an import licence rather than an importer statement, and no minimum value threshold applies. This means that unless customs tell the importer otherwise, a licence will be required for every individual item, even where they might be identical, low-priced pieces imported together in large groups.

It should be remembered that being issued with an import licence conveys no ownership rights or proof of the item being legitimately acquired.

Applicants for a licence will have to demonstrate that the item in question was exported from the country where it was created or discovered in accordance with the laws and regulations of that country at the time (whenever that was – and it could be centuries ago).

Essential licences and certificates

If that country issued export licences or certificates at the time, the applicant must provide the relevant original licence or certificate (even though there has never been any requirement to keep them once used). Otherwise, they must show that no such laws and regulations existed at the time.

Because many of these items will have left those countries decades or more beforehand, that proof may no longer survive, if it was ever there in the first place. So, the law provides a third way of qualifying for a licence: evidence that the item in question has been exported in accordance with the laws and regulations of the last country where it was located for an unbroken period of more than five years.

There are further conditions to this option. Assuming you can prove that the item has spent an unbroken period of more than five years in a single country, you must also show that it wasn’t there for temporary use, or was just there in transit, for re-export or transhipment. You must also show that it was exported from the country where it was created or discovered before 24 April 1972 – when the 1970 UNESCO Convention on trafficking of cultural goods first came into effect.

One cause for customs rejecting the application will be if it has “reasonable grounds” to believe that the item’s original export from the source country was illicit. But the regulation does not say what “reasonable grounds” means in this context.

Items covered by Part C needing an importer statement are all individually valued at €18,000 or more per item and are more than 200 years old.

Europol admits to having no reliable data to back its Pandora VII claim

Europol admits to having no reliable data to back its Pandora VII claim

Europol has admitted not having any reliable statistics to support its headline claim over stolen objects in Operation Pandora VII, aimed at tackling cultural property trafficking.

Many media outlets have covered the results of the latest transnational operation co-ordinated by Interpol and Europol with a view to tackling trafficking in cultural property.

Pandora VII, led by the Guardia Civil in Spain, took place over 11 days in September 2022 with two cyber weeks in May and October.

The Europol media release itself stated that the operation led to the arrest of 60 people and the recovery of 11,049 stolen objects across 14 countries.

As the ADA knows well, there is a great deal of difference between seizing items and showing that they are stolen, just as arrests do not equate with convictions.

These operations, along with others named Athena and Odysseus, have been running for almost a decade, and to our knowledge, the authorities have never published either conviction rates or figures confirming how many seizures later proved justified. The ADA and fellow trade association IADAA have sought this information from Europol more than once, but Europol has replied each time that it does not have it, which makes its official release claim this time that 11,049 seized items were stolen all the more surprising.

The twin priorities in carrying out these operations have always been to clamp down on money laundering and terrorism financing, but while there may have been limited evidence of the former across the years, we have heard of no evidence at all of the latter.

Once again we contacted Europol asking the following: a) How many arrests have led to successful convictions?  b) How many seizures proved to be valid + how many had to be returned to their owners? c) How many seizures were shown to be linked to money laundering? d) How many seizures proved to be linked to terrorism financing?

As others have also argued, without these accurate clear-up figures, the data serves no purpose beyond propaganda.

Europol’s media office ADMITS IT HAS NO ACCESS TO VITAL DATA

Europol’s media office replied on May 10 as follows: Unfortunately, we won’t be able to help as we do not have these figures. Europol is not a statistical organisation – Europol’s priority is to support cross-border investigations and the information available is solely based on investigations supported by Europol.”

Confirmation, then, yet again that Europol has no statistics to support the claims it makes, with the further emphasis that Europol is “not a statistical organisation”. If so, what is it doing making statistical claims it admits it cannot support in the introduction to its media release, claims that history tells us will influence policy at a national and international level, as with the introduction to this recent important European Commission document?

Interpol, which has also denied having any reliable statistical information in this field, compounded the error.

Arguably more shameful is the number of media outlets that have reported the unsupported claims Europol has put out in this release without checking them. Newspapers, art market websites and others – all of them experts in their own fields and trained to check their sources – have singly failed to do so in this case.

They include Yahoo News, Artnet News, Euronews, and Reuters, among others.

It also includes outlets whose credibility entirely relies on accurate data, such as the Organised Crime and Corruption Reporting Project, and Border Security Report (the Journal of border security and transnational crime).

This is not the first time this has happened; these operations have been going on for a decade and the ADA and IADAA have highlighted the failure of intelligence on numerous occasions. As we showed in this instance, a single email request revealed the truth. So why can’t the experienced journalists working on this story make such a simple check as this to ensure that their reporting is accurate?

One of the worst offenders was Ursula Scheer, a journalist for Frankfurter Allgemeine, who not only swallowed everything she was told without checking, but added even more bogus data to the story unchecked: “According to estimates by the FBI and UNESCO, the annual turnover of the global black market for art and antiques is ten billion dollars, which puts the black market right behind the illegal drug and arms trade.” She also stated: “Selling art and antiques helps mafia activities finance terrorism and war.”

Those who want to know where the bogus data ends and the accurate data begins can check on our Facts & Figures page, which includes independently verifiable data through quoted sources and direct weblink.

Trade bodies condemn UNESCO proposals to regulate art market

Led by CINOA, the international trade federation for art and antiques dealers, industry bodies across the world have reacted strongly to what they see as “very alarming” proposals from UNESCO to regulate the art market.

The proposals have been drafted by a panel of academics, civil servants and legal specialists from countries that have no sizeable art market themselves; they give the impression of having no serious idea of, or interest in, how the art market operates.

The outcome is predictably draconian, unrealistic and extreme, and if passed into law by States Parties to the 1970 UNESCO Convention on illicit trade would constitute an existential threat to much of the wider art market.

Published under the heading Draft Model Provisions on the Prevention and Fight against the Illicit Trafficking of Cultural Property, the proposals even attempt to redefine the meaning of the term ‘cultural property’ so that it has a far wider meaning that that set out in the Convention. This is an early indicator of how UNESCO appears to be sanctioning an upgrade of the Convention without going through the formal process of properly consulting States Parties on it.

It is not the whole set of provisions that cause a problem. In fact, as a whole, Provisions 1 to 13 set out useful proposals for dealing with the scourge of looting and trafficking linked to cultural property. Of particular note are Provisions 6 and 7, in which UNESCO finally targets States Parties over their obligations under Article 5 of the 1970 Convention to protect vulnerable sites from criminals.

Better methods of protection

“This is something that the art market has reiterated for many years,” says IADAA chairman Vincent Geerling, who has been very vocal on the point. “Fulfilling those obligations are the most effective actions in the fight against illicit trafficking and are long overdue, especially the establishment of digital inventories of protected cultural property (Provision 7) and should include the temporary warehousing at archaeological excavations. Photographing and recording archaeological finds before they are stored would provide a more effective means of reporting possible thefts quickly to INTERPOL (as obliged) for uploading onto their database, thereby making them unsaleable and thus preventing trafficking.”

It is when we arrive at provisions 14 to 18 that the trouble starts. These attempt to regulate the art market, something that has nothing to do with UNESCO and should be excised from the proposals.

Provision 15 proposes: “Only private individuals or legal entities, holders of a license issued by the competent authority, can exercise a professional activity directly or indirectly related to the art market.”

This astonishing power grab effectively imposes compulsory licensing on the global art market in a way that it would be impossible to comply with and which, if followed to the letter, would risk exposing art market operators to legal action from their clients.

It also constitutes a serious threat to human rights as, by default, it would remove the commercial value of countless items in private ownership around the world, as well as depriving their owners of the ability to dispose of them how they see fit.

As one art market lawyer responded: “This provision is highly unrealistic. It envisions that only licensed businesses will sell art; however, most countries do not have the capacity or will to create the necessary bureaucracy for such an endeavour. There is an expectation for these individuals to hold legal degrees and be experts in foreign law when such laws are often unavailable or are not consistently applied in practice. They are also expected to maintain a register of movements or transactions, but such record keeping is of little use unless it is maintained in a database, which again would require a major undertaking.”

Risking breach of trust among states parties

The enforcement of this set of proposals would effectively undermine the existing UNESCO Convention because it would supersede its powers and remit. This would constitute a catastrophic breach of trust of States Parties that had not expressly acceded to the changes as formal alterations to the Convention.

Several countries have already made it clear that they will not accede to these proposals. Australia has said it will not oblige dealers to maintain a register of cultural property and those they trade with; Belgium, France, Sweden and the UK do not accept the wider definition of cultural property; and the United States has reserved the right to determine whether or not impose export or import controls and does not accept that the Convention can be applied retroactively. These reservations alone, which include three of the world’s largest art markets, effectively make the proposals unworkable.

It is telling that not only was no member of the art market co-opted onto the panel of ‘experts’ and not one of them hails from a leading art market nation, but also that leading trade bodies such as CINOA were not directly informed or consulted on the matter – CINOA only learned about the proposals because it was tipped off by someone who found out about them.

Reactions from other leading figures and organisations in the market have been equally damning. The European Federation of Auctioneers points out that the industry is already subject to extensive legal restrictions, including over due diligence.

The draft provisions come at the same time as UNESCO is finalising its code of ethics for the art market, another set of rules that it wishes to impose on traders while ignoring the concerns they expressed during the consultation period.

Deeply flawed questionnaire

The questionnaire involved was also deeply flawed because it failed to consider different circumstances for trading artworks, while also assuming that all restitution claims were valid, when so many are not, and that any export not accompanied by a licence is illicit, when that is not the case.

CINOA has pointed out to UNESCO that its consultation over the code of ethics elicited a very poor response from States Parties (only 12%), with only 27 responses from across the entire art market, which it argues “cannot accurately represent the art trade”.

Although UNESCO’s policies are only advisory, many fear that they will be imposed, first by declaring the code of ethics obligatory, then by using that to force through the Model Provisions. While leading art market countries may not support the measures, active source countries like Mexico, who already operate extremist policies regarding cultural property, would be only too delighted with them.

The summary impression conveyed by the UNESCO proposals and the organisation’s approach to these matters is that they are driven by an extreme ideology that is prepared to trample human rights to achieve its ends rather than an honest desire to fight crime and protect the vulnerable. Coupled with numerous examples of breaches of trust – from the fraudulent advertising campaign The Real Price of Art to its continued promotion of bogus data about the art market – UNESCO’s expressed wish to work with the art market ring increasingly hollow.