Memorandum submitted by Mr Antony Mair
Thank you for your letter of 20 April, enclosing
a copy of the transcript of the hearing before the Culture, Media
and Sport Committee.
In response to your request for the background
evidence for my statements about the European Commission's view
as to the scope of the export laws of southern member states,
I am not able to provide the Committee with the original statements,
since they were oral. The statements were made in the course of
the Fifth Symposium on "Legal Aspects of International Trade
in Art" organised by the International Chamber of Commerce
in Vienna in September 1994. The symposium lasted for two days
and was attended by a large audience, from all parts of the world.
One of the speakers on Friday 30 September was Mr Alfonso Mattera,
of the European Commission. Mr Mattera is also a professor at
the College of Europe in Bruges and at the University of Modena.
As members of the Committee may be aware, Article
29 EC Treaty (formerly Article 34) prohibits quantitative restrictions
on exports, and all measures having equivalent effect, as between
member states. However, Article 30 EC Treaty (formerly Article
36) contains a derogation from this provision in relation to exports
justified on grounds of "the protection of national treasures
possessing artistic, historic or archaeological value".
The legal question which therefore arises in
relation to exports of works of art between member states is the
extent to which the Article 30 derogation can be invoked because
the works of art concerned are "national treasures possessing
artistic, historic or archaeological value". In the course
of his presentation in Vienna, Mr Mattera conveyed clearly that
in his view the very restrictive regime applicable in Italy, for
example, went further than the derogation. However, in the absence
of either existing case law providing an interpretation by the
European Court of Justice of the term in Article 30, or any complaint
by any party which would give rise to a case before the European
Court of Justice that would result in such an interpretation,
the Italian law would continue in force.
In the course of questioning after his presentation,
Mr Mattera said that he had invited members of the trade on repeated
occasions to lodge complaints with the European Commission against
export laws which the trade might consider excessive, but that
no such complaint had been lodged.
I subsequently had a meeting with Mr Mattera
at the European Commission in Brussels in order to consider ways
of proceeding with a complaintat the time, I was envisaging
a complaint relating to either the Italian export laws or the
Spanish ones. Mr Mattera said that the Commission would welcome
a complaint of this kind.
I enclose, for your interest, a copy of an article
written by Mr Mattera,
which formed part of the documentation distributed at the symposium,
and which discusses the question of the free circulation of works
of art within the European Community and the protection of national
treasures possessing artistic, historic or archaeological value.
I would draw your attention in particular to pages 22 and following
where Mr Mattera tries to produce a proper definition of national
treasures, resulting in a passage on page 25 which is remarkably
similar to the Waverley criteria applied by the UK. This is a
considerably more restrictive approach than that adopted by southern
I understand that Mr Mattera is still in the
Internal Market Directorate General at the Commission, but that
he is now head of Directorate B, which covers public procurement
policy. Although he took a personal interest in this particular
aspect of the Treaty, it may well now be that the file would be
handled by someone else in the Commission.
If I can be of any further assistance, please
let me know.
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