Select Committee on European Scrutiny Sixth Report


COM(00) 325

COM(00) 845

COM(00) 844

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

Draft Council Regulation amending Regulation (EEC) No.
3911/92 on the export of cultural goods.

Draft Council Directive amending Council Directive
93/7/EEC on the return of cultural objects unlawfully
removed from the territory of a Member State.

Legal base: (a) —
(b) Article 133 EC; qualified majority voting
(c) Article 95 EC; qualified majority voting
Document originated: (b) and (c) 22 December 2000
Forwarded to the Council: (b) 22 December 2000
(c) 27 December 2000
Deposited in Parliament: (b) 19 January 2001
(c) 24 January 2001
Department: Culture, Media and Sport
Basis of consideration: EM of 31 January 2001
Previous Committee Report: (a) HC 23-xxvi (1999-2000), paragraph 6 (26 July 2000)
(b) and (c) None
To be discussed in Council: June 2001
Committee's assessment: Politically important
Committee's decision: (a) Cleared
(b) and (c) Not cleared; further information requested


  4.1  In the context of the operation of the single market, Regulation (EEC) No. 3911/92 and Directive 97/3/EEC seek to reconcile the fundamental principle of free movement of cultural goods with that of the protection of national treasures.[14]

— Document (a)

  4.2  We considered on 26 July 2000 this overdue report from the Commission on the implementation of the 1992 Council Regulation, which document (b) seeks to amend, and of the 1993 Directive, which document (c) seeks to amend. We did not clear it but asked to be informed in due course of how the Government would respond to it. The Minister did not do so, but these proposals from the Commission take the issues further forward. We also asked the Minister to make the point to the Commission that, in future, the UK expects it to produce reviews triennially, as provided for in both instruments.[15]

— Council Regulation (EEC) No. 3911/92 on the export of cultural goods

  4.3  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; and

"—  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.

— Council Directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State

  4.4  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.

  4.5  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.

— Amendments to the Annexes to Council Regulation (EEC) No. 3911/92 and Council Directive No. 93/7/EEC

  4.6  Of the categories of cultural objects contained in the original annexes to the Regulation and Directive, 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)".

  4.7  The former had a monetary limit of 150,000 ecus (£119,000 based on the exchange rate as at 31 December 1992 (£1 = 1.2528 ecu), as agreed by the European Commission) and the latter a monetary limit of 15,000 ecus (£11,900 based on the same exchange rate).

  4.8  A problem arose over the classification of watercolours, gouaches and pastels. Some Member States, including the UK, classified them under the former category, whilst other Member States classified them under the latter. To resolve this impasse the Annexes were amended by Council Regulation (EC) No. 2469/96 and Directive 96/100/EC of the European Parliament and of the Council. These provide for an additional, and separate, category in each Annex for watercolours, gouaches and pastels with a monetary limit of 30,000 ecus (£23,800 based on the exchange rate as at 31 December 1992).

— Updating the Annexes

  4.9  The report recalled that:

"Under the terms of the Regulation and Directive, the Council, acting on a proposal from the Commission, shall examine and, where appropriate, update the amounts indicated in the Annex, on the basis of economic and monetary indicators in the Community. At this stage and in the light of the results of preparatory consultations for this report, the Commission does not in principle intend to propose such an update".

Documents (b) and (c) and the Government's view of the proposals in them

  4.10  The Minister for the Arts at the Department for Culture, Media and Sport (Mr Alan Howarth) summarises the proposed amendments and comments on them as follows:

"Amendment to the annexes of Regulation 3911/92 and Directive 93/7/EEC to avoid misinterpretation

"Some of the categories in the annexes to the Regulation 3911/92 and Directive 93/7/EEC currently have a financial threshold of 'Value 0 (Zero)'. Some Member States have interpreted this to mean that a cultural object which has no financial value is not a cultural object within the meaning of the Regulation and Directive. Others (including the UK) have extended the protection of the Regulation and Directive to all cultural objects (in the relevant categories) regardless of their financial value. In order to avoid these differences of interpretation, the Commission is proposing that this wording should be replaced with 'Value: Whatever the value'.

"Amendment to the annexes to Regulation 3911/92 and Directive 93/7/EEC to take account of the euro

"The financial thresholds in the annexes to Regulation 3911/92 and Directive 93/7/EEC were originally expressed in ecus, with a fixed date of 1 January 1993 for conversion of the values into national currencies. From 1 January 1999, the ecus in the annexes were automatically replaced by euros on the basis of a one to one conversion.

"The Commission is proposing that, from 1 January 2002, those Member States participating in EMU should directly apply the thresholds in euros. Without this amendment, Member States who have the euro as their currency would be applying different amounts (converted on the basis of exchange rates on 1 January 1993 as opposed to the irrevocably fixed rates of 1 January 1999).

"The Commission is further proposing that for other Member States (who will continue to convert the financial thresholds into national currencies), the conversion into national currencies should be on the basis of the exchange rate on 31 December 2001, and that this rate should be automatically updated every two years to compensate for variations between the exchange rate of the euro and national currencies".

— Amendment to the annexes to Regulation 3911/92 and Directive 93/7/EEC to avoid misinterpretation

  4.11  The Minister says that these amendments raise no policy issues for the UK.

— Amendment to the annexes to Regulation 3911/92 and Directive 93/7/EEC to take account of the euro

  4.12  The Minister says:

"The UK Government fully supports the objectives of the Regulation and Directive as a means of combatting illicit trade. However, this needs to be balanced against administrative and financial implications for the Government and the art trade where they are not necessarily justifiable in terms of the need to control the movement of cultural goods.

"Prior to the introduction of the Regulation in 1993, the UK already had a system in place whereby individual export licences were required for specified cultural objects more than 50 years of age and valued at or above certain financial thresholds. These thresholds were regularly updated.

"The Regulation introduced lower financial thresholds for certain objects (eg drawings valued at or above £11,900 as opposed to £39,600 under UK national legislation), at which an individual licence needs to be obtained. Although Article 10 of the Regulation provides that:-

'... the Council, acting on a proposal from the Commission, shall examine every three years and, where appropriate, update the amounts indicated in the Annex, on the basis of economic and monetary indicators in the Community.'

"No such review has taken place. This has led to the lowering of the financial thresholds by default; and, by extension, an increased administrative burden each year on both the Government and those wishing to export cultural objects.

"As part of the preparatory consultations for the Commission's Report ... the UK Government was required to respond to a questionnaire. In this, we reminded the Commission of its obligations to update the financial thresholds at least in line with the rise of prices: but the Commission's Report ... stated that '... the Commission does not in principle intend to propose such an update.' Thus the financial thresholds will, by omission, continue to decrease; and the current proposal will further lower the thresholds in real terms due to the change of date (from 1 January 1993 to 31 December 2001) for conversion into national currencies.

"The current thresholds (based on the exchange rate of £1 = 1,2528 ecu as at 31 December 1992) are:-


"Obviously, we cannot compare these with the actual rate that will be in force on 31 December 2001; but based on the exchange rate as at 31 December 2000 (£1 - 1.6023 euro), the conversions will be:-


"All figures are rounded down to the nearest hundred pounds. This will bring a whole new tranche of cultural objects within the requirement to obtain an individual export licence, in addition to those that have been included by default due to the Commission's failure to review the current thresholds triennially."

  4.13  The Minister then addresses other practical implications which arise from the Commission's proposals. He says:

"The introduction on 1 January 2002 of conversion into sterling based on the exchange rate on 31 December 2001 also leads to practical implications. We will not know until 1 January 2002 what the official euro/sterling exchange rate (for the purposes of European Union legislation) will be on 31 December 2001. This is an important practical consideration for the staff of the Export Licensing Unit at DCMS (who are responsible for issuing licences and ensuring that would-be exporters are aware of the licensing requirements) and for HM Customs and Excise (who are responsible for policing the export controls).

"The practical implication of this is that an exporter will not know in advance of 1 January 2002 that he/she requires an export licence. For example, he/she could arrive at a port on 31 December 2001 with the intention of exporting on 1 January 2002 a cultural object which is below the current licensing limit (for example a drawing valued at £11,500), only to be in breach of the Regulation when attempting to export the object on 1 January 2002 due to the overnight lowering of the limits (eg new limit for drawings £9,300).

"As such, the Government believes that the Commission's thinking is mistaken about the practicalities of the current proposal; and we believe that any new financial thresholds that might be introduced from 1 January 2002 should be based on the exchange rate of 31 August 2001. This would allow us to disseminate information about any new requirements to all interested parties, and provide sufficient time (once this information has reached would-be exporters) to process and issue any additional licences that will be required from 1 January 2002."

— Regulatory Impact Assessment

  4.14  Without knowing the new exchange rate, the Minister says that it is difficult to make an accurate assessment, but he notes that the reduction in the thresholds outlined above is 20%. It is therefore reasonable to assume that the effect on the UK art market will be substantial.

— Timetable

  4.15  The proposals will be discussed at a meeting of the Advisory Committee in early March. We understand that the Commission hope that they will be put to a Council in June for political agreement.


  4.16  It is difficult to see how the Council could agree to these proposals without first amending them to take into account at least the administrative burden that those amendments that relate to the euro pose for Member States outside the eurozone. In practice, we understand that few of those Member States have a thriving art market and the United Kingdom is the exception.

  4.17  We ask the Minister to write to us again after the meeting of the Advisory Committee. If agreement is not reached on amendments which take these considerations into account, we ask him to provide an explanation of the reasons given by those opposing amendment.

  4.18  The Minister points out that the Council is required under Article 10 of the Regulation to examine the thresholds, acting on a proposal from the Commission. In his Explanatory Memorandum, he tells us that the Commission has decided not to propose an update. We are aware that a number of Member States take the view that the thresholds are too high and wish to give greater protection to their works of art. The Commission may, therefore, have decided that there would be insufficient support in Council for a change. Nevertheless, we ask the Minister whether the Commission is in a position to take this decision, rather than putting it to the Council. He should include this explanation in his letter, which we wish to receive by 9 March. He may wish to point out to the Commission, if he has not already done so, that this Committee noted with regret that the review which the Commission should have conducted in 1996 was not completed and issued until May 2000.

  4.19  Meanwhile, we clear document (a) but not documents (b) and (c).

14  See Articles 28 to 30 of the EC Treaty and the judgment of the Court of Justice of 10 December 1968, Case C-7/68, Commission v Italy.  Back

15  (21327) 9072/00; see headnote to this paragraph. Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2001
Prepared 2 March 2001