Leading art market lawyer says new regulation will risk isolating the EU culturally
British trade associations concerned about impending EU legislation that will affect UK exports will brief dealers on the changes at a seminar in London on June 28.
Titled The increasing difficulty in the international movement of ancient coins and objects, the afternoon session is organised by law firm Devonshires, who will host the event at their London offices and online on behalf of the British Numismatic Trade Association and the Antiquities Dealers’ Association.
The session will focus on how to comply with the news EU import licensing regulation (2019/880), which comes fully into force on June 28, 2025, and affects art and objects created and originally discovered outside the EU.
Provenance, due diligence and paperwork are at the heart of concerns as the trade associations argue that the regulation will make it all but impossible to meet its demands.
Of particular concern is the manner in which the regulation reverses the burden of proof for importers to the EU. Instead of the authorities having to show that imported items have been stolen or illegally moved, it will be up to the importers to show that they haven’t.
Wilson, who is also Chief Legal Officer at Phillips Auctioneers and author of Art Law and the Business of Art, argues that the law is unlikely to prevent the trafficking of cultural property, one of its chief aims: “…the best-case scenario is that trafficking activities will simply be diverted to elsewhere in the world by this law, not stopped,” he writes. Worse, while the legitimate market will face the burden of compliance, traffickers will simply ignore the law, he believes.
“There is a risk that the more difficult it is to import an object legitimately the greater the incentive to resort to smuggling and the greater the rewards for doing so. If that happens trafficking activities will be neither stopped nor diverted – and may even increase,” Wilson warns.
It is also apparent that the EU authorities have significantly underestimated the challenge of establishing an effective electronic registration system for imports – “a mammoth task”, says Wilson – while customs officials are unlikely to have the relevant experience or expertise to deal with applications. The expected clampdown likely to result from this means will mean significant delays, inconsistency in rulings and unjustified refusals, he says.
Wilson concludes: “This complexity and delay – as well as the likely inconsistency of decisions – will likely be a strong disincentive to import art of any kind or origin into the EU. This will lead to fewer imports into the EU of art and fewer EU buyers of art in countries outside the EU. By making it harder to import cultural property, the EU will then risk becoming culturally isolated.”
This is the context in which the June 28 seminar will be conducted.It runs from 3pm to 5.30pm BST, with networking drinks to follow. Those interested in attending in person or remotely can find all the details here.
The introduction of the new Aboriginal Cultural Heritage Act 2021 in Western Australia on July 1 has proved such a disaster that it has been scrapped after little more than a month.
Announcing the withdrawal, Premier Roger Cook said: “Put simply the laws went too far, were too prescriptive, too complicated and placed unnecessary burdens on everyday Western Australian property owners.”
As the Brisbane Times concluded: “It’s hard to think of a bigger lawmaking failure in recent political history than the WA government’s impending backflip on its Aboriginal Cultural Heritage Act.”
Why is this of interest to the world of antiquities? Because it deals with the same competing priorities that cause friction between commercial and personal interests on the one hand and heritage campaigners on the other, and because it shows what can happen when you tip the balance too far in one direction.
The news that the 2021 Act would be scrapped came after fears that the legislation, which undermined personal property rights for a huge section of business, farming and the public, in favour of the cultural heritage rights of indigenous peoples, might be extended across Australia.
One example of how enforcement of the law had an immediate and stifling impact was the cancellation of civic tree-planting ceremonies after an Aboriginal land corporation demanded $2.5 million to allow them to go ahead.
WA Premier Roger Cook had come under personal attack over the measures, which he refused to delay after complaints that the law was poorly written and its likely impact unclear.
He introduced the Aboriginal Cultural Heritage Act 2021 (ACH Act) after Rio Tinto destroyed sacred rock shelters at Juukan Gorge while searching for iron ore in May 2020, despite being warned of their significance earlier. Rio Tinto later apologised, and the CEO and other senior executives later resigned over the matter.
Redefining the meaning of Cultural Heritage
Section 18 of the original 1972 Aboriginal Heritage Act, which held sway until now, provided for land owners to proceed with activities that might be severely damaging to cultural heritage interests if granted permission by the government after a review.
The new act redefined the meaning of Aboriginal cultural heritage so that it was no longer limited to places and objects but also included cultural landscapes and intangible elements, although what they might be was uncertain.
It also replaced Section 18 with far tighter restrictions on property over 1,100 sqm, with permissions to be sought via Local Cultural Aboriginal Heritage Services (LCAHS), bodies that have yet to be fully established.
Effectively the Act gave Aboriginal bodies a direct and greater say – tantamount to a veto – over what landowners could do with their land through the oversight of a new Aboriginal Cultural Heritage Council (ACHC) to whom the LCAHS report.
The type of work covered could be as simple as putting up a new fence or updating irrigation works, as well as more complex projects.
Successful applications by landowners would be issued with an ACH permit, while those of greatest concern winning that approval also had to provide a management plan before going ahead.
Even when they had complied fully with all this at their own expense, landowners risked seeing their plans cast aside if new information arose concerning heritage aspects of the site.
New law “suffocates” private property rights
Those opposed to the early introduction of the law said its statutory guidelines, published at the end of May, were not clear.
Sky News political commentator Caroline Di Russo argued the new law was much worse, saying it “suffocates” private property rights of landowners, and adding that it is “the most disproportionate and overblown response imaginable”.
Red tape and ambiguity would plague farmers and industry as they tried to comply under the threat of prosecution and even jail, Russo said. Even where permission was eventually granted, it was unclear how long the drawn-out process would take.
Despite the extended definition of Aboriginal cultural heritage, Western Australia’s planning chief, Anthony Kannis, who had ultimate responsibility for overseeing the changes, was unable to define what would be covered when asked about this in a question-and-answer session with ABC News, saying “…if there is any doubt whatsoever about the advice you’re getting, there are opportunities to consult with us as a department and raise questions with us”.
One farmer whose family had farmed land in the region for over 50 years had deliberately preserved 1,000 hectares of forest country for decades, only to be told by Mr Kannis that a decision to clear it using fire in keeping with Aboriginal tradition was a possibility if the ACH ruled in its favour. “This is about giving Aboriginal people a say, and that shouldn’t be lost in all this discussion,” he countered.
In what the Financial Review dismissed as “farcical scenes”, at a forum hosted by the Association of Mining and Exploration Companies, “one mining executive asked government officials whether planting a tree near the Swan River in Perth would require a site inspection by traditional owners and the preparation of a heritage management plan.
“The officials replied it would depend on the size of the tree.”
The estimated cost of consulting what Mr Kannis described as “knowledge holders” ranged between AUS$80 and AUS$280 per hour (≠ £42/$55) (≠ £140/$150).
However, as the Financial Review also noted, “Junior exploration companies complained of being charged upwards of $200,000 for heritage surveys in the lead up to the new laws coming into force and said the rollout had been shambolic.”
Penalties for those in breach of the law included fines that started at AUS$20,000 for moving or selling ACH objects. An individual seriously harming ACH could be fined AUS$1m, while a corporation could be fined AUS$10m, with both also risking jail terms.
Concern led to scrapping of fines for initial period
Such was the concern over this amid confusion over how the law would be interpreted that Mr Cook scrapped fines for the first 12 months of enforcement while the legislation bedded down.
The WA government dismissed calls for a review, even after a petition launched by the Pastoralists and Graziers Association demanding a six-month delay raised 27,000 signatures.
Mr Cook ruled out any delay to the new regulations, despite the widespread concern, saying: “The laws are about a simpler, fairer, like-for-like transition of the current laws already in place.”
However, reality soon struck, with the impact on mining interests, as well as farming, seen as devastating. Support for the government plummeted.
Meanwhile, having secured a cultural hegemony via the new law, Aboriginal Heritage groups are now furious at the WA government change of heart.
In all, this was a textbook case in how not to address the valid concerns of indigenous groups as they fight to protect their culture. The WA government under Roger Cook dismissed the equally valid concerns of ordinary people in protecting fundamental human rights relating to property. In turn, this infringement blighted the economy in such a way that much of it risked grinding to a halt in weeks if not days. And that would have driven a deeper wedge between the competing interests of landowners and indigenous groups.
Add to all this the predictable risk of abuse of power by heritage groups handed almost unlimited say in what landowners could do, and the government had prepared the ground for toxic levels of corruption when it came to consultancy fees.
Now Mr Cook is being forced to re-adopt the 1972 law that he had argued was problematic. Having overseen this catastrophic and avoidable policy change, his credibility in seeking to resolve the issue any time soon is in tatters, and he will be doubtless focused now on shoring up support.
His arrogance in dismissing the loud and valid concerns of farmers and others as he declared the new law “simpler, fairer, like-for-like” won’t be forgotten any time soon.
WA disaster an object lesson for law makers
The WA disaster is an object lesson for law makers across the globe when it comes to balancing commercial and private interests with the demands of heritage groups. Effective policy means a nuanced approach that takes both into account, not throwing one side to the wolves in the hope of ingratiating yourself with the other.
Failure to strike this balance despite being obliged to do so by a clear policy directive does not augur well for the European Union’s import licensing regulation (2019/880) for cultural property, due to be enforced from June 2025. The damage to the international art market, including that of the EU itself, as well as the infringement of ordinary people’s rights, is likely to be widespread if that goes ahead – and Brussels has been alerted to this this often, but continues to ignore the warnings.
Too often laws are ushered through with barely a nod at genuine scrutiny of the concerns of all stakeholders. As the Brisbane Times concluded about the WA affair: “Had there been a robust parliamentary debate the practical issues that eventually emerged may have been ironed out before the laws came into effect on July 1.”
The European Commission would do well to look closely at what has just happened in Western Australia.
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.
ADA chairman Joanna van der Lande has written the first in a series of articles on issues concerning antiquities and the art market for distribution within the European Parliament and to representatives at the recent Davos summit.
The article appears in MACE, a Brussels-based political magazine whose purpose is to raise issues of cent and spark debate among politicians, civil servants and other people of influence within the EU machine.
Articles will follow by IADAA chairman Vincent Geerling on data, fake news and how they help create misguided policy, and Ivan Macquisten on the wider implications of how this is affecting the art market.
The objective is to encourage deeper understanding of the challenges the market faces, with a view to establishing better relationships with decision makers on the political stage.
According to two well-placed sources, the UK will not be continuing with the new import licensing regulations for cultural property introduced by the European Union in 2019 and due to be enforced by 2025.
Aimed at preventing crime – in particular terrorism financing – the controversial law faced stiff opposition from the art market, which argued that its compliance measures would make business impossible for many dealers, auction houses and collectors.
The notion that the UK would not continue with the regulation first arose during the Art Newspaper’s December 11 Brexit podcast. While being interviewed on likely events to come, former MEP and current CEO of the British Chamber of Commerce in Brussels Daniel Dalton said that the UK would not be going ahead with the law.
Mr Dalton is an authority on the matter as he was one of two rapporteur MEPs who guided the measures through the European Parliament, and he consulted widely with the art market to take its concerns into account.
His statement on the podcast led to a phone call with British Art Market Federation chairman Anthony Browne, who said: “I have received clear assurances on this from ministers that the UK will not continue with the regulation.”
One snag, however, is that the most controversial part of the new regulations, Article 3:1, passed into law in the UK on December 28, 2020. It effectively removes any back stop on the seizure and return of goods illegally removed from their source countries.
This would mean that anything from paintings to pots exported hundreds of years ago, or even longer, in breach of local laws of the time can be confiscated and returned under the measures, regardless of subsequent good faith purchase, treaty and convention considerations or the normal statutes of limitation.
Implications of new law
Such a far-reaching power is arguably unprecedented in the history of the art market, with serious implications for property rights and business, yet entreaties by the European Art Market Coalition, an EU-wide lobbying group for the market, fell on deaf ears when it raised the matter with the European Commission.
However, the UK Government’s decision not to proceed with the regulation means that Article 3:1 along with the rest of the regulation would not apply; presumably action will be taken at a later date to amend/rescind it.
This does not mean that UK authorities would permit any free-for-all at ports, however, just that action by Customs would be taken on the basis of intelligence gathering rather than on the basis of whether or not a valid export licence from a source country accompanied relevant imports – a requirement that it is frequently impossible to meet for understandable reasons.
“It had become clear to me in discussions with decision makers that the UK would not go ahead with the new law after Brexit,” Mr Dalton said in the New Year.
With no similar regulations in the United States, the world’s leading art market, this would appear to put the EU at a competitive disadvantage as trade between the UK and US will not be restricted by the measures in the same way that it will be between either of those markets and the EU.
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