Financial Action Task Force Report’s anti trade approach rings alarm bells

Financial Action Task Force Report’s anti trade approach rings alarm bells

Just released, the Financial Action Task Force’s new report, Money Laundering and Terrorist Financing in the Art and Antiquities Market, takes a highly irresponsible approach.

The FATF is an independent global body investigating crime whose reports should prove key to policy making. Not this one, however.

Arguably the most salient conclusion it comes to is as follows: “The markets for art, antiquities and other cultural objects are diverse in size, business models and geographic reach. Most are relatively small, and the vast majority of participants have no connection to illicit activity.”

However, this is buried deep in the text, while the FATF has focused on launching the report with a headline grabbing video that gives the clear impression that the art market is awash with criminals committing offences linked to money laundering and terrorism financing.

Needless to say, anti-market forces have leapt on this to condemn the trade and demand further legal restraints, while ignoring the lack of substance in the report or the fact that rigorous anti-money laundering laws already apply in the UK, for instance.

As with so many other reports of this ilk, fact checking has been a casualty. The most important initial independent statistic the report quotes as it launches into its arguments is wrong. In paragraph 3 of the Introduction Background on page 5, it notes that the United Nations Office on Drugs and Crime (UNODC) “has estimated that in 2011, as much as USD 6.3 billion in illicit proceeds could have been laundered through or associated with the trade in cultural objects”. In fact, the figure, which was sourced from House of Commons Select Committee evidence in 2000 – now almost a quarter of a century ago – does nothing of the sort as CINOA’s Bogus Statistics report proves. FATF has simply taken UNODC’s word for it, thereby adding to the dissemination of fake news. This being the case, how reliable is the rest of the report?

The FATF’s work is important, so it is a shame that it, too, appears to have fallen into the trap of putting publicity before purpose in drawing attention to itself to justify its existence.

Further analysis of the report will follow.


CINOA, IADAA and others call for major review and propose five-point plan for future

Trade and cultural heritage groups including global trade federation CINOA and international antiquities association IADAA have called for a major international review of policy and legislation as it applies to the art market.

The call comes in a letter after the US Treasury review of anti-money laundering proposals found the art market to be low risk, with Congress turning its attention to shell companies and the real estate industry instead for the moment.

CINOA secretary general Erika Bochereau and IADAA chairman Vincent Geerling pointed out that all of the numerous recent studies researching possible links between the art market, money laundering and terrorism financing found no justification for clamping down on the market on this basis.

They argued that the lack of hard evidence produced by any of the reports meant that authorities should stop targeting “dealers, collectors and auction houses with wave after wave of damaging and unjust legislation.” Policy making is “being driven by assumptions and false claims,” they argued in their open letter.

Why false claims and bogus data abound

It is thought that one of the reasons so much misinformation is so widely spread is the interests of drawing attention to the pet issues of international NGOs, law enforcement and others all vying for attention and funding as they push their agendas.

The trade and cultural heritage groups singled out UNESCO’s claim that the annual value of trade in illicit cultural goods is $10 billion, a claim that is demonstrably false and not supported by the source that UNESCO gave for it. Despite being informed of this in November 2020, and despite numerous public clarifications on this point by the trade, UNESCO continues to promote the figure and it is still quoted in the media.

The trade and cultural heritage groups have now set out a five-point plan for better policy, listed in the Art Newspaper as follows:

  1. “Policy makers, including governments, when discussing the development of and drafting any policy or legislation which impacts cultural property and the art market, should ensure that recognised representatives from the relevant sector of the art market are co-opted on to any relevant panel or consulting body.
  2. Regulatory review boards or panels assessing the impact of government proposals should focus on how far they have actively addressed concerns and suggestions raised by recognised market representatives, while all proposals should be tested against clear standards of evidence and proportionality.
  3. A designated contact person at the decision-making level of government should be named, whose role is to follow any on-going laws or regulations affecting the art and antiques market, and they should act as a sector contact, with whom the trade can open a dialogue to ensure that the conservation of art or cultural heritage objects is not being unintentionally demoted or ignored.
  4. All relevant active and pending cultural property legislation should be reviewed to take account of the facts and data currently available, particularly if those facts are at odds with the assumptions on which legislation was predicated.
  5. Legislators, particularly in the EU, should commission an independent review to analyse the way in which significant public resources, supposedly dedicated to combating illicit trade in cultural goods, have been wasted as a result of relying on misinformation. Clear guidance should be produced to prevent legislation affecting the art market from misdirecting resources in the future.”

As well as CINOA, signatories of the letter include: the ACPCP (American Council for the Preservation of Cultural Property), the ATADA (Authentic Tribal Art Dealers’ Association), the Committee for Cultural Policy (Cultural policy think tank and information source), Drouot Patrimoine auction house, the EFA (European Federation of Auctioneers), the Global Heritage Alliance advocacy group and the IADAA (International Association of Dealers in Ancient Art).

EU adopts new regulations on import licensing – and takes a big step backwards in the process

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.