It is astonishing that so many of the high level art market seminars and conferences being held across the world – and notably in the UK and Europe – fail to address what is likely to be the biggest issue for those concerned next year.
For all the talk of AI, the rise of the Middle East as an art hub and the role of art advisors, no one seems interested in the one thing that might bring the whole transnational market across Europe to a juddering halt: the enforcement of EU Reg 2019/880 on the import of cultural goods.
Nominally introduced to fight terrorism financing (for which there has been no evidence) and money laundering, the unrealistic demands of the regulation when it comes to import documentation mean that honest market professionals will find themselves unable to send works they have bought or sold to the EU.
The law also applies to private citizens, thereby undermining the European Convention on Human Rights as it applies to property rights.
By now, member states within the EU should be on top of this law. They need to know what impact it will have on their resources when it comes to assessment and Customs, and they need to have a clear idea of exactly how they will enforce the law so that the roll-out across the 27 EU countries will be uniform or at least harmonised so that they do not unwittingly create weak spots for entry that might attract criminals.
Guidelines promised in September have still not appeared. Behind closed doors, industry professionals are horrified at the state of affairs and find themselves unable to submit to the legal liabilities that signing off import documents will bring.
Advice from the authorities in Brussels has been conflicting – and those receiving it do not know if what they are being told is simply the interpretation of officials or binding law.
Too many questions remain unanswered as we approach the New Year, with an enforcement date of June 28. We are promised a set of guidelines before Christmas, but will they be enough?
Key questions that need answers now
Here are some key questions that still need to be settled:
– Who must sign off on the terms and conditions of import? The buyer? The seller? An intermediary such as an auction house?
– How can a buyer who has not personally inspected the goods they are importing, or does not have absolute knowledge of the accompanying documentation and its reliability prior to import, accept legal liability for its validity – to the point of risking criminal prosecution if it is not?
– Why would an auction house expose itself to such liability on behalf of a buyer or seller?
– Will the EU and its member states, including their Customs teams, accept third-party affidavits as sufficient evidence of legal export in order to solve the issues set out above?
– The regulation separates antiquities from archaeological artefacts and applies differing rules to each. However, it does not define how they are different. Will it accept the standard difference as set out in the complementary EU export law (116/2009)?
– How does the regulation distinguish between antiquities and antiques? This also remains unclear.
– Existing Customs codes do not distinguish between non-EU origin items, to which the new regulation applies, and EU-origin items which are exempt. How will Customs officers, who do not have relevant expertise in this area, decide what to do?
While some of the above may seem fairly technical, these questions go to the heart of the import process. The lack of clarity means deep uncertainty over whether goods will be blocked or even seized at the border, or delayed, in some cases for up to five months.
Just as uncertain will be the costs involved, while the administrative burden for those completing the paperwork is daunting. As one leading insurance broker concluded: “This would be a total non-starter for the art market.”
Already some members of the trade have said they will not import to the EU. While that may mean more business for non-EU art market centres like London, it would be a disaster for Paris, which has seen an uptick in its global share since Brexit. Ultimately, though, as a global industry, a law that proves insurmountable in a leading market jurisdiction will be bad news for us all.
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