Importing cultural goods under the EU Regulations

The EU Regulations on the introduction and import of cultural goods (2019/880) have been widely criticised in the art and antiquities trade. They will impose new stringent rules on the importation into the customs union of cultural goods that were created or discovered outside of the EU.

There is less than a year to go before 28 June 2025, which is the target date by which a centralised electronic system is due to be introduced and most of the Regulations will come into force.

A part of the Regulations has already come into force, namely the complete prohibition on importing what are dubbed “Category A” cultural goods. These are items that were exported illegally from their country of origin in accordance with the laws of that country in force at the time of exportation.

Once the electronic system is introduced, there will be different requirements to import into the EU items falling under different categories under the Regulations, which are summarised below. The Regulations do not apply to goods created or discovered in the EU nor “returned goods” that were previously exported from the EU and returned within 3 years. 

Category B goods

These are objects from archaeological excavations exceeding 250 years of age, regardless of value.

For these types of goods, an import licence will be required. It can be applied for in advance. The process is as follows:

• Within 21 days of receipt of the application, the competent authority shall request any missing or additional information or document from the applicant (Art. 4(6)); and
• Within 90 days of receipt of the complete application, the authority shall decide whether to issue the licence or reject the application (Art. 4(7)).

The application must include:

• Colour photographs of the object;
• Evidence that the object was exported from the country where they were created or discovered in accordance with the laws and regulations of that country, or the absence of such laws and regulations at the time they were taken out of the territory; and
• A signed declaration by which the applicant explicitly assumes responsibility for the veracity of all statements made and that they have exercised all due diligence to ensure the goods were exported legally from the country of interest.

As a derogation from the requirement to prove lawful export from the country of origin, the application may instead provide evidence that the object was exported in accordance with the laws and regulations of the last country where they were located for a period of more than 5 years where:

1. The country where the goods were created or discovered cannot be reliably determined; or
2. The cultural goods were taken out of that country before 24 April 1972 (being the entry into force of the UNESCO convention).

Where the object is only intended to temporarily enter the EU for commercial art fairs and exhibitions, an importer statement (as per Category C goods, detailed below) will suffice. 

Anyone seeking to import goods requiring an import licence should apply remotely and in advance of goods being shipped into EU territory in order to minimise risk of the goods being seized, for example if the authority is not satisfied that the goods were lawfully exported from their country of origin.

Note however that under Art 6(3), before issuing a licence, the competent authority may require that the goods be made available to them for a physical inspection at premises within their jurisdiction. At its discretion, the physical inspection may be carried out using a remote video connection.

In addition, customs will carry out controls of the goods being imported and a licence does not eliminate all risk of seizure, for instance if the customs agent does not believe that the goods correspond to those described in the import licence.

Category C goods

These are goods falling within the definition of cultural goods under the Regulations (including paintings, sculptures and coins) older than 200 years and with a minimum value of € 18,000.

These goods will not require an import licence to be obtained, but the importer will need to submit via the electronic system an importer statement consisting of:

• A declaration signed by the holder of the goods stating that they were exported from the country where they were created or discovered in accordance with the laws and regulations of that country at the time of export; and
• A standardised document describing the cultural goods in question in sufficient detail for them to be identified by the authorities.

The same derogation as detailed above for Category B goods can be relied upon.

The importer should have in their possession evidence of lawful export in case they are requested at customs. There is again a risk of the goods being seized if customs are not satisfied with the evidence provided to support the statement.

There is no indication in the Regulations that Category C importer statements can be checked and cleared in advance, unlike licences for Category B.

Penalties

Each Member State will lay down their own rules for infringement of the Regulations. By way of example, the French Customs Code provides that breaches could lead to a three-year prison sentence, a fine of between one and two times the value of the item and confiscation of the item, the means of transport used, the items used to conceal the fraudulent activity, and any direct or indirect proceeds of the offence.

Comment

The stringent and complex requirements imposed by the Regulations once they come into force are very onerous for those seeking to import cultural goods into the EU.

Those having purchased objects in good faith and with appropriate due diligence from the time of purchase will now be required to produce documentation that was not routinely available nor expected when the item was purchased. This may not now be available or obtainable.

The risk of seizure by customs agents seeking to conduct the required checks under the Regulations may be a deterrent for many dealers who do not wish to become embroiled in disputes over ownership and provenance with foreign states that will require significant time and legal costs to resolve.

Importers should minimise this risk by seeking to apply for Category B import licences before the objects enter the EU. Those in the trade should consider checking in advance of the system going live which objects in their collections may fall under different parts of the Regulations and what evidence might be missing.

For Category C items, it will be a case of seeing how the importation works in practice.

Items not within Category B or C (for example, those that were not found in the ground and with a value below € 18,000 are not covered by the Regulations.

The Regulations may have the effect of deterring the trade away from the EU and towards other territories. 

As Northern Ireland remains part of the customs union, it may find itself a conduit for cultural goods brought from Great Britain by those seeking to transport them onwards into the EU and take advantage of less stringent checks within the United Kingdom.

Those in the trade may wish to consider changing their terms and conditions to make it clear that purchasers in the EU are fully responsible for the cost and risk of complying with the Regulations. 

Online auction houses in particular will need to carefully consider their position and how auctions will work in practice. Their terms and conditions will need to be very clear and clearly brought to bidders' attention, if bidders in the EU are to be allowed to bid on archaeological objects or non-archaeological objects above  € 18,000, or disputes will inevitably arise.