Art Beyond Its Borders

The international circulation of works of art is a constant throughout history. What has changed over time is the value that communities have attributed to these objects, which were long considered solely for their aesthetic merit and as instruments for the display of power—power being a frequent (and interested) patron. Starting in the 19th century, artworks progressively acquired an identity-related value, becoming symbols around which communities recognize and unite themselves. Today, a "cultural asset" is broadly defined as a "testimony having value as a civilization" (Franceschini Commission, 1964). The material object that serves as its physical support must therefore be considered not only in its tangible form, but also as a vehicle for an intangible value—artistic, historical, archaeological, archival, and so on—that determines its cultural and social significance (as well as the need for specific legal protection). By virtue of this, the Treaty on the Functioning of the European Union, while establishing the principle of the free movement of goods within the internal market (Articles 34 and 35), allows Member States to impose restrictions and prohibitions on trade for the purpose of protecting national artistic, historical, or archaeological heritage (Article 36).

Section curated by CBM & Partners

Historical and Constitutional Foundations of the Protection of Cultural Heritage

Italy, a crossroads of artistic and cultural influences, has developed legislation on cultural heritage that is deeply shaped by the spoliations suffered throughout its fragmented history, with the Napoleonic looting standing as an emblematic example of the cultural shock endured. Experience shows that the emergence and refinement of the philosophy of cultural protection are historically tied to moments of crisis: law asserts itself in response to phenomena that were previously unregulated, or insufficiently so.

From the outset, Italian cultural heritage legislation has taken on a protectionist character, based on a “tight-mesh” export control system designed to keep as many artworks as possible within national borders (or at least, that is the direct effect). Even though the specific legal references may have disappeared, the specter remains the same: damage to the national cultural heritage.

Currently, the field is regulated by Legislative Decree No. 42/2004 (Cultural Heritage Code or CBC), which is inspired by the constitutional principles of protection and enhancement of the national artistic heritage (Articles 9 and 117). At least in theory.

Despite the restrictions imposed on owners of cultural assets, there is a lack of an effective system for enhancing the value of those works whose export is prohibited: they mostly remain confined to overcrowded museum storage rooms, vaults, and private homes, without the State investing adequate resources to ensure their public enjoyment. Cui prodest?

Definition and Consequences of Cultural Heritage Designation

Under the CHC, artworks may qualify as cultural property ex lege (Article 10, paragraphs 1 and 2), meaning their cultural interest is presumed and, at most, subject to verification, or they may be formally declared as such through an administrative procedure (Article 10, paragraph 3).

In both cases, the consequences are the same: a series of obligations and limitations imposed on the owner that significantly affect their enjoyment of the asset (e.g., any physical transfer of the item requires authorization from the local Superintendency) and reduce its economic value.

The prohibition on the export of particularly important cultural property should be part of a broader strategy of active cultural enhancement. However, no such obligation (or incentive) exists for the owner.

Even the loan of cultural property for exhibitions (Article 48, CHC) is subject to state authorization, which is contingent on formal compliance with numerous requirements, including submission at least four months before the exhibition and the provision of extensive documentation (condition report, facility report, loan form, etc.), often discouraging owners from pursuing such initiatives.

Further evidence of the rationale behind Italy’s protection policy lies in the fact that, unlike other countries (e.g., the United Kingdom), Italy does not provide for any immunity from seizure for foreign-owned cultural property temporarily present in the country for exhibitions or restoration. This deters the transit through Italy of artworks with uncertain or disputed provenance—by no means a rare occurrence.

Regulatory Framework for the International Circulation of Cultural Property

In terms of international circulation, the CHC sets out a three-tiered classification:

Property Whose Permanent Export Is Prohibited (Article 65, paragraphs 1 and 2, CHC):

i) Movable property belonging to the State, regions, other territorial public bodies, as well as any other public entity and non-profit private legal persons (including church institutions recognized under civil law);

ii) Collections held by museums, galleries, exhibition venues, archives, and individual documents or book collections owned by the State, regions, or public entities;

iii) Items under Article 10, paragraph 3 (e.g., private book collections), if formally declared of cultural interest pursuant to Article 13;

iv) Items under Article 10, paragraph 1 (e.g., those owned by the State or public bodies), created by a deceased artist and over 70 years old, until the cultural interest assessment is completed (Article 12);

v) Property under Article 10, paragraph 3, regardless of ownership, whose export is deemed harmful to Italy’s cultural heritage.

Property Requiring Authorization for Permanent Export (Article 65, paragraph 3, CHC):

i) Items of cultural interest, belonging to anyone, created by a deceased artist, over 70 years old, and valued above €13,500;

ii) Private archives and individual documents of cultural interest;

iii) Photographs, films and audiovisual works over 25 years old, vehicles over 75 years old, and items or instruments of interest for the history of science and technology over 50 years old.

For these, an export license (Attestato di Libera Circolazione – ALC) must be requested via the SUE online portal of the Export Offices, where the applicant submits information about the item (provenance, attribution, market value, etc.) to be inspected. The export office’s decision is based on the criteria set forth in Ministerial Decree 537/2017 (e.g., quality of execution, presence in public collections). Denial of the ALC triggers the formal process of declaring the item as of cultural interest—export will then be prohibited. The State may, but is not obliged to, compulsorily purchase the item at the price indicated in the export application (Article 70, paragraph 1, CHC).

Article 68, paragraph 3, CHC provides that the Export Office must grant or deny the ALC within 40 days of the application. However, case law has deemed this deadline to be merely indicative (not binding), based on the principle that the public interest enshrined in Article 9 of the Constitution takes precedence over private property rights.

Property Whose Permanent Export Is Free (Article 65, paragraph 4, CHC):

i) Works of painting, graphics, sculpture, and any artwork by a living artist or created less than 70 years ago;

ii) Cultural property by a deceased artist, over 70 years old, valued under €13.500.

For such items, a self-declaration under Presidential Decree No. 445/2000 must be submitted to certify that the object falls within one of the exempt categories. If the object is found to have exceptional artistic, historical, archaeological, or ethno-anthropological interest for the integrity and completeness of the Nation’s cultural heritage pursuant to Article 10, paragraph 3, letter d-bis), the Export Office will initiate the cultural interest declaration process, thereby prohibiting export.

Reform Prospects and Global Valorization of Cultural Heritage

Compared to other European countries, which also impose restrictions to protect their cultural heritage, Italy is distinguished by a degree of regulatory rigidity that penalizes the art market and, more importantly, excessively compresses private property rights, without offering compensation for the loss of value caused by an export ban (as France does).

A reform of the system should begin by harmonizing the value thresholds below which the State cannot impose restrictions, taking cues from the thresholds adopted in France (€300,000 for paintings), the United Kingdom, and Germany (€ 150.000).

Italy currently applies a single value threshold of € 13.500 (for works by deceased artists over 70 years old), above which export is subject to authorization that may be denied on the basis of criteria whose application is highly discretionary. Moreover, the State may forcibly purchase the artwork presented for export, without being obliged to acquire it at a price aligned with market valuations or reflective of offers from potential foreign buyers.

This demonstrates a clear error in perspective: exporting works of art from Italy does not impoverish the national heritage, but rather enhances it on a global scale. The active promotion of Italian culture abroad can generate significant cultural and economic benefits without compromising the integrity of the country's artistic heritage.

This is not to advocate for an uncontrolled liberalization of art exports. Cultural assets with a specifically identified and well-founded importance will continue to be safeguarded in public collections, accessible to all.

In an era of globalization and cultural exchange, rigidly retaining cultural property within national borders risks being anachronistic and, above all, counterproductive. A strategic and carefully considered openness could transform Italy’s heritage into a driver of cultural and economic growth, restoring the country’s role as the global epicenter of culture. It is time we understood this.