The case of R (Simonis) v Arts Council England and others [2018] EWHC 1822 (Admin) is a rich blend of public, EU and art law.

Background

For the last two decades, the claimant, Ms Simonis, has been in a dispute with the Italian Ministry of Cultural Heritage over the export of a Giotto painting of ‘exceptional cultural and historical importance‘.

Valued at £10-million, the painting, titled ‘Madonna con Bambino‘ was originally thought to be a 19th century imitation (and was purchased by the Claimant in 1990 for £3,500) but was later attributed to Giotto (or his school) when restoration uncovered a layer of paint from the middle ages.

After an Italian tribunal permitted the Claimant to export the painting from Italy to London in 2007, a higher Italian court reversed the tribunal’s decision in 2008 and the Italian Ministry demanded that the painting be returned.

The Claimant applied to the Arts Council England (‘ACE’) for a licence to re-export the painting to Switzerland under Article 2 of the EC Regulation 116/2009, which controls the export of European cultural goods outside of the EU.

ACE refused and deferred to the competence of the Italian authorities because the validity of the export to London in 2007 had been over-ruled. Instead, ACE offered to issue an export licence to Italy, whose authorities could then decide whether to permit export outside the EU (which seems unlikely given the history).

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The judicial review

The Claimant brought a judicial review challenge to ACE’s most recent refusal decision (in 2017). The question for the High Court was which European Member State (the UK or Italy) should decide whether to permit the Claimant to export the painting to Switzerland.

The only ground of challenge was to ACE’s decision that the painting had had not been lawfully dispatched in 2007.

Unusually for a judicial review claim, the parties instructed a joint expert in Italian law and cultural heritage (Professor Lenzerini of Siena University) to provide relevant opinions. On the main points, the expert sided with ACE and the Claimant sought permission to argue that the (jointly instructed) expert was wrong, or that even if the export in 2007 was defective, this was a technicality that did not render it unlawful under EU law.

The law

Article 35 of the Treaty of Rome (or Treaty on the Functioning of the European Union (‘TFEU’)) governs the free movement of goods in the EU. It bans obstacles to trade within the EU and measures having similar effects, thereby creating the European Single Market.

There are important exceptions to free trade within the Single Market when it comes to certain cultural goods [1] which are managed through:

  1. common EU rules on exporting cultural goods outside the EU (to prevent Member States from operating more relaxed rules of their own); and
  2. arrangments for Member States to recover their own cultural goods from other Member States within the EU (under the Return Directive 2014/60/EU).

The export of cultural goods outside of the EU is subject to EC Regulation 116/2009 which is directly effective in the UK. Domestically, the Export of Objects of Cultural Interest (Control) Order 2003 subjects the export of relevant objects to a licensing regime in the hands of the Secretary of State for the Department for Culture, Media and Sport (who was joined as an interested party to Ms Simonis’ claim, as was  their Italian equivalent).

Under Article 2 of the Regulation, only one Member State has competence to grant a licence to export such goods outside of the EU where there has been a ‘lawful and definitive dispatch‘ of the item from another EU Member State.

The basis of challenge

The thrust of the Claimants’ multiple arguments in this case was that the lawfulness of the export should be determined under EU law, not the Italian law that applied to the export in 2007.

The High Court’s decision

There was no definition of the requirement of ‘lawfulness’ in Article 2 of the Regulation nor any guidance on the point. However, the TFEU regulates national laws within the EU and therefore the Regulation contemplated lawfulness in terms of national law (here, Italian law). The TFEU also allows Member States to protect their national treasures. That had to be done by reference to the individual laws of Member States, in the absence of any blanket definition that could apply (§§ 57 and 60).

Properly construed, Article 2 was a co-ordination provision that allocated competence to the last EU Member State of dispatch. It was that states’ law that had to be complied with in order to make the export ‘lawful’ for the purposes of Article 2(2)(b) of the Regulation.

The Court accepted the evidence of Professor Lenzerini that the 2007 export had not complied with Italian law. The Claimant’s determined attempts to undermine this conclusion were rejected.

The Italian law did not offend EU law and were necessary and proportionate to achieving the legitimate aim of protecting national treasures. Italy’s authorities were better placed than the High Court of England and Wales to balance the private interests of art collectors with the public interest of protecting cultural works (§ 94).

It fell to the Italian Ministry, not ACE, to issue an export licence to the Claimant for the painting to travel to Switzerland.

Conclusion

Disputed national treasures are a hot topic in the international art world, where audiences, collectors and institutions have become more sensitive to issues of historic looting and cultural appropriation.