Risk of criminal offence in connection with the international circulation of works of art and culture

Avv.ti Francesco Isolabella e Nicola Pietrantoni (TopLegal Awards 2018 Special Edition, aprile 2019)

The international circulation of works of art and culture, as provided and regulated by Law (D. Lgs.) 42/2004, is undoubtedly an issue of significant, current and evolving relevance. As a matter of fact, the Italian Council of Ministers during its session of 28/2/2019, resolved on yet another intervention on applicable laws and regulations to “improve the effectiveness, transparency and efficiency of the control function over the circulation at a national and international level of works of art and culture”.Of particular significance, the criminal consequences that may affect not only Italian and foreign sector operators (auction houses, art galleries, museums, private collectors), but also any physical or legal person – including foreign – who owns or is a potential buyer of a work that has artistic or cultural interest. In a growingly global market, in which on a daily basis, commercial transactions are closed also having as object works of art of a substantial financial value, the transfer of such works in EU countries and outside of the EU represents one of the most problematic and regulated issues, both at a national and EU level. Italian laws and regulations on the matter, aimed at fighting the unlawful trafficking of cultural heritage and at protecting the integrity of the national artistic heritage, provides bans and limitations to circulation outside of Italy, on the basis of the characteristics of the individual works.

In general, for the export of assets having cultural interest, an authorisation for definitive (art. 68) or temporary (art. 71) free circulation must be obtained from the local Soprintendenza(art authority). In the absence of this, there could be a criminal case of “unlawful exit and export”, with seizure of the work and interdiction for the sentenced perpetrator (art. 174).

The latest legislative action of 2017, aimed at easing – and thus favouring – the export and commercial exchange of specific categories of works (in particular, modern and contemporary artworks), allowed for the departure from Italy, without authorisation from the Ministry, of “works of painting, sculpture, graphics or any object of a living author or whose realisation is not older than seventy years”and of “things that hold cultural interest, are the work of an author who is no longer living and whose realisation occurred before seventy years ago, whose value is under €13,500” (art. 65, par. 4). Competent authorities, in these cases, request from the interested party a declaration, pursuant to art. 47 of Presidential Decree (DPR) 445/2000, that the works “… fall within the cases in which authorisation is not requested” (art. 65, par. 4-bis). Having received the declaration, the export office may prevent the circulation of the work only if it considers that such work displays “an exceptional artistic, historic, archaeological or ethnic/anthropological interest for the integrity and fullness of the cultural heritage of the Nation” (art. 10, par. 3, letter d-bis). If on the one hand the so-called “self-certification” mechanism eases the export procedure, on the other it risks amplifying implications of a criminal nature. For example, the untruthfulness of a statement on the ownership of the work, its financial value, the date of its creation, and the inevitable consequences not only in terms of false statement to a public officer (art. 495 of the Criminal Code), but also receiving of stolen goods (art. 648 of the Criminal Code), money laundering (art. 648-bis of the Criminal Code) and self-money laundering (art. 648-ter of the Criminal Code), which may involve several subjects.

The current regulatory framework, as anticipated, is rapidly and continuously evolving. It is useful to remember that the Chamber, in its session of 22/6/2017, approved a wording (not yet discussed in the Senate) that provided, among other novelties, a worsening of punishments for criminal offences against cultural heritage, and the inclusion of such criminal offences in the catalogue of so-called “underlying offences” pursuant to Law (D. Lgs.) 231/2001 (“administrative liability of legal persons”). If this stance were to translate into law, it would demand that companies set up an internal organisation and management model suitable for the prevention of specific criminal offence risks – especially foreign companies present in Italy and with high frequency of cross-border activities.