CULTURAL GOODS
(21327)
9072/00
COM(00) 325
|
Commission Report on the implementation of Council Regulation (EEC) No. 3911/92 on the export of cultural goods and Council Directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State.
|
| Legal base: |
— |
| |
| Document originated:
| 25 May 2000 |
| Forwarded to the Council:
| 26 May 2000 |
| Deposited in Parliament:
| 14 June 2000 |
| Department: |
Culture, Media and Sport |
| Basis of consideration:
| EM of 4 July 2000 |
| Previous Committee Report:
| None |
| To be discussed in Council:
| No date set |
| Committee's assessment:
| Politically important
|
| Committee's decision:
| Not cleared; further information requested
|
6.1 The two instruments on which the Commission
reports are:
Council Regulation (EEC) No. 3911/92 on the export
of cultural goods
6.2 This requires the presentation of an
export licence for the export to destinations outside the European
Union of cultural goods falling within one of the categories set
out in the Annex to the Regulation. These categories are restricted
by age and a minimum financial value. Although the Annex to the
Regulation provides that export licences are required for:-
"Archaeological objects more than 100 years
old which are the products of:-
— excavations and finds on land or under water;
— archaeological sites;
— archaeological collections"
regardless of their monetary value, the Regulation
provides a derogation that a Member State may not require export
licences for archaeological objects from excavations and finds
on land or under water or from archaeological sites "where
they are of limited archaeological or scientific interest, and
provided that they are not the direct product of excavations,
finds and archaeological sites within a Member State, and that
their presence on the market is lawful". The UK is operating
this derogation.
6.3 The Regulation provides that requests
for licences should be dealt with by the competent authorities
of the Member State in which the item is lawfully and definitively
located on 1 January 1993 or, if not on the territory of that
Member State after 1 January 1993, by the competent authority
of the Member State on whose territory the item is located following
lawful and definitive despatch from another Member State. Licences
are required to be in a common format, valid in all Member States.
The Regulation extends the Customs' mutual assistance provisions
to its implementation.
6.4 The Regulation was amended by a Commission
Regulation in 1993 to provide for export licences to be valid
for no more than a year. It was amended again in 1998 to allow
for licences to be issued for five years to cover the repeated
temporary export of a specified object.
Council Directive 93/7/EEC on the return of cultural
objects unlawfully removed from the territory of a Member State
6.5 This Directive provides a mechanism
whereby a Member State can recover a cultural object which is
a "national treasure" from the territory of another
Member State, where the said "national treasure" was
removed from the territory of the first Member State in breach
of its rules for the protection of "national treasures"
or in breach of Regulation (EEC) No. 3911/92, or was not returned
at the end of a period of lawful temporary removal.
6.6 For the Directive to apply to a "cultural
object" it must be classified, before or after its unlawful
removal from the territory of a Member State, among the "national
treasures possessing artistic, historic or archaeological value
under national legislation or administrative procedures within
the meaning of Article 30 of the Treaty". A cultural object
must also belong to one of the categories listed in the Annex
to the Directive. These categories are identical to those in the
Regulation. Alternatively, it must form an integral part of public
collections listed in the inventories of museums, archives or
libraries' conservation collections or the inventories of ecclesiastical
institutions.
6.7 The Directive requires cultural objects
to be returned in accordance with the procedure and in the circumstances
provided for in the Directive. A requesting Member State may bring
proceedings in a court in the territory of the Member State where
the unlawfully removed "national treasure" is located.
The Directive provides for the court to award the possessor "such
compensation as it deems fair according to the circumstances of
the case". An obligation is imposed on competent national
authorities to seek a specified cultural object, the actual or
presumed location of which has been notified by another Member
State, and to notify the Member States concerned when a cultural
object is found and there are reasonable grounds for believing
that it was unlawfully removed from another State. Once a cultural
object has been found, a requesting Member State has two months
in which to confirm the identity of the cultural object, and one
year to institute proceedings for its return. In this context,
the Directive provides for powers to take measures to preserve
the cultural object and to prevent, by interim measures, the evasion
of possible requests for return.
The Annexes
6.8 Amendments were made in 1996 to the
annexes. Of the cultural objects in these, two were:
"Pictures and paintings executed entirely by
hand, on any medium and in any material (which are more than 50
years old and do not belong to their originators)"; and
"...Drawings executed entirely by hand, on any
medium and in any material (which are more than 50 years old and
do not belong to their originators)".
6.9 A problem had arisen over the classification
of watercolours, gouaches and pastel as some Member States, including
the UK, classified them under the former category, whilst other
Member States classified them under the latter. In order to resolve
this impasse, the Annexes were amended to provide for an additional,
and separate, category in each Annex for watercolours, gouaches
and pastels with a monetary limit of 30,000 Ecu (£23,800
based on the exchange rate as at 31 December 1992).
6.10 The Regulation had direct effect. The
European Parliament and Council Directive was implemented into
UK law by the Return of Cultural Objects (Amendment) Regulations
1997 (S.I., 1997, No.1719).
The Commission's report
6.11 Both the Regulation and the Directive
are subject to triennial review, starting in 1993, but this is
the first. It forms part of a review process started in 1999 which
included a questionnaire being issued to Member States.
6.12 The Minister for the Arts at the Department
for Culture, Media and Sport, Mr Alan Howarth, summarises the
Commission's report, adding occasional comments on it:
"The Commission states that the opinions of
Member States 'have been almost unanimously positive as regards
its effectiveness in raising the awareness of those involved in
international trade', although 'opinions were qualified ... on
whether it has led to a genuine reduction in the number of unlawful
exports'.
"The report comments on the practical measures
which have been adopted such as specific laws, the publication
of explanatory brochures and the introduction of systems aimed
at raising awareness of the need to protect the cultural heritage.
The Regulation has drawn the attention of responsible administrations
and customs authorities to the existence of illegal trade in cultural
property, but, in the Commission's view, this has not produced
concrete results. The effectiveness of customs controls varies
according to the attitude and behaviour of Member States. The
Commission concludes that, although the Regulation has standardised
formalities and documentation at Community level, the protection
of cultural goods still concentrates on Member States' own national
heritage. The report cites Italy and the Netherlands as 'paying
particular attention to the protection of cultural goods from
other Member States'. [COMMENT: We would not dispute this view;
but we contend that the UK is equally vigilant although more selective.]
"Some Member States have been critical of the
administrative burden involved. The Commission draws attention
to the fact that, where an object has been illegally exported
from one Member State to another, an application for an export
licence has to be submitted to the Member State in which the object
is located. In such circumstances, the Commission's view is that
'it is extremely rare for the Member State in question to actually
carry out checks or request information from the Member State
of origin ... the authorities confine themselves to issuing the
export licence, on the basis of documentation which is incomplete
or has no connection whatsoever with the object and do not carry
out detailed checks as to its provenance and legality'. The report
draws attention to procedures introduced in France and Italy to
overcome these difficulties. It states that France has introduced
a 'system of prior application to ... other Member States ...
to ensure, before an export licence is issued, that the object
was lawfully removed from another Member State' and that Italy
has introduced 'an accompanying document which allows the object
in question to freely circulate, once the origin and credibility
of the requester have been checked'. [COMMENT: In practice, we
have not encountered either of these procedures.]
"The Commission draws attention to a provision
on mutual assistance between Customs authorities of Member States
and acknowledges that some Member States have made use of this.
The report also highlights the need for co-operation between a
Member State's Customs, Ministry of Culture and the police, including
access to files and databases. [COMMENT: The UK already has this
in place.].
"The Regulation permits Member States to restrict
the number of Customs Offices empowered to deal with the export
of cultural goods and draws attention to the advantages and disadvantages
of such a restriction. [COMMENT: The UK does not restrict the
number of Customs Offices.]
"The Commission has concluded that 'in general,
the sanctions laid down by the national laws of the Member States
to deal with acts counter to the Regulation may be seen as sufficiently
dissuasive'."
Numbers of exports licences issued
"The Commission draws attention to the major
differences in the number of export licences issued. Details are
set out in Annex 1 to the report. Over the period 1993-98, the
UK issued 38,000, France 8,000, Italy 2,800 and Germany 1,800
with other Member States issuing much smaller numbers. The Commission
suggests that these figures are biased since Member States may
have been issuing licences under the Regulation for intra-Community
movements. The Commission points out that the UK issued more than
two-thirds of the total number of licences issued but comments
'even though this figure is not in any way a true reflection of
reality — since the data ... includes all types of authorisations
and licences and not only those issued pursuant to the Regulation'[14].
[COMMENT: The sheer volume of licences issued by the UK precludes
the present manual collation of statistics from differentiating
between licences issued under the Regulation and those issued
under national law. However, we can confirm that we have not issued
licences under the Regulation for intra-Community movements. We
can also confirm that approximately 95% of the licences issued
were issued under 3911/92 Regulation]. The report draws attention
to the UK as 'a major centre for the purchase and sale of art'
compared to 'Mediterranean countries, where virtually all of the
objects exported are part of the cultural heritage'.
"The report draws attention to the relatively
constant number of licences issued each year in some Member States
compared to the increase in others: 'in some cases the number
of licences has tripled'. The Commission points out that the figures
provided do not distinguish between permanent and temporary exports
and suggests that 'the number of temporary export licences issued
is way in excess of the number of permanent licences'. [COMMENT:
This is not the case in the UK, and we believe the Commission's
inference may be unfounded.]
"There have been few checks with other Member
States to confirm that an object was not unlawfully removed from
another Member State. 'Only two countries, the Netherlands and
the United Kingdom, maintain more or less regular contacts with
other Member States ... other consultations or exchanges ... have
been extremely sporadic'. 'Very few export licences have been
rejected on the grounds that no proof of legality of their transfer
from another Member State has been forthcoming: only the Netherlands
and the United Kingdom have rejected export licence applications
on these grounds'."
Transposition and application of the Directive
6.13 The Minister notes that the Commission
draws attention to numerous delays in Member States in enacting
transposition measures. It has noticed differences between these
measures in some Member States and the provisions of the Directive.
It will open infringement proceedings in those cases where it
deems them necessary for the proper application of the provisions
of the Directive.
6.14 Slow progress in implementing the Directive
into national law means that the period of application has not
been long enough to make a valid assessment of its effectiveness,
the Commission says. It notes, however that one result of the
Directive has been the adoption of codes of good practice by professional
circles. The Minister comments that such codes were already in
place in the UK prior to the introduction of the Directive.
6.15 Co-operation, the Commission says,
between authorities both at national and Community level "has
not taken any practical shape" as there is not enough information
on cultural goods leaving the territory of a Member State unlawfully.
Where it exists, the information is not passed on in appropriate
fashion. Most Member States, however, favour improving co-operation
to secure the return of cultural goods and their traceability.
6.16 Annex III to the Report summarises
cases where objects have been returned and instances of administrative
co-operation between Member States, ongoing requests for return,
notifications sent to other Member States about the discovery
of possible illegal exports and requests made for a search. None
of the returns was in the context of the Directive. Of the 13
notifications sent to another Member State, nine were made by
the UK. Noting the small number of these cases, the Commission
puts forward suggestions as to why this is the case.
The joint Annex to the Regulation and the Directive
6.17 The Commission does not intend to propose
amending the financial thresholds.
The Government's view
6.18 The Minister comments:
"The UK Government fully supports the objectives
of the Regulation and Directive, and welcomes evidence that they
are having the effect of raising the awareness of those involved
in international trade. However, the UK shares the Commission's
concern that neither measure is yet fully effective. Given the
importance of establishing provenance as a means of combatting
illicit trade, it is particularly to be regretted that so few
enquiries are apparently made of Member States of origin before
licences are issued under the Regulation. It also seems clear
that better arrangements are needed for the exchange of information
between Member States under the Directive, and that it is too
early at this stage to be satisfied that the return provisions
of the Directive are working effectively.
"The UK government continues to take the view
that some better mechanism needs to be agreed for periodic review
of the financial thresholds in the Regulations. Whilst the real
value of thresholds may need to be adjusted from time to time,
the lowering of thresholds by default has administrative and financial
implications both for government and for the art trade which are
not necessarily justifiable in terms of the need to control the
movement of goods.
"The UK Government is currently conducting a
general review of measures to combat the illicit international
trade in antiquities. It will shortly receive a report from the
Select Committee on Culture, Media and Sport which will be an
important contribution to its consideration of these issues. It
has also convened an Advisory Panel, consisting of distinguished
experts from the archaeological, art and museum worlds, and has
asked for recommendations on possible improvements to existing
mechanisms by November 2000. The relationship between the Regulation
and Directive and the UK's own export controls, and the inter-action
of both in certain respects with the international Conventions
on illicit trade, are matters which the UK Government will want
to consider in the light of the Advisory Panel's recommendations.
It may be appropriate at that stage to make further recommendations
to the Commission for the strengthening or refinement of the Regulation
and Directive."
Conclusion
6.19 This "mixed" report demonstrates
that a review is overdue and we ask the Minister to make the point
to the Commission that, in future, the Government expects it to
produce reports triennially, as provided for in both instruments.
6.20 The Report from the Culture, Media
and Sport Committee referred to by the Minister has now been published.
Though the EU dimension does not feature very largely in the Report,
it does comment on these instruments and law and practice in other
Member States.
6.21 The Minister says that the UK shares
the Commission's concern that neither measure is "yet"
fully effective and suggests that it may, in due course, be appropriate
to make recommendations to the Commission for strengthening or
refining them.
6.22 We thank the Minister for his full
Explanatory Memorandum on the report and his comments on its contents
and we ask him to inform us when he has decided on how the Government
should respond to it. If he decides to make recommendations to
the Commission, we ask him to copy these to us. Meanwhile, we
shall not clear the document.
14 The Minister omits the rest of the sentence, which
reads "...Regulation - the commercial aspect plays an important
rôle". Back
| 
