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

Main legal source: Law 16/1985, de 25 de junio del Patrimonio Histórico Español.

Cultural property subject to restrictions on removal from national territory

The Spanish cultural heritage is composed, as established by Article 1 of Law 16/1985, of:

immovable and movable property of artistic, historical, paleontological, archaeological, ethnographic, scientific or technical interest;
documentary and bibliographic heritage, archaeological sites and zones;
natural sites, gardens and parks of artistic, historical or anthropological value;
assets that constitute intangible cultural heritage.

Export Authorisations

The departure from Spanish territory of any movable property forming part of the cultural heritage requires prior authorisation, which can be requested using paper forms or via the website of the Ministerio de Cultura.

There are three types of authorisation:

Definitive;
Temporary with the possibility of sale;
Temporary.

The first two are intended for private individuals requesting to move items of cultural interest.

The third type concerns cultural heritage items temporarily transferred abroad for the following purposes:

exhibition in international shows;
restoration of artworks abroad;
scientific studies.

The maximum period of stay abroad for temporarily exported works is five years, renewable up to ten or twenty years depending on the category of the exported works.

Intra-EU Circulation

With regard to the movement of cultural goods within the European Union, authorisation must be requested for the following items:

Cultural goods that are more than one hundred years old.
Goods included in the General Inventory of Movable Property of the Spanish Historical Heritage.

Prohibitions

Only a temporary export permit may be requested—never a definitive permit or a temporary one with the possibility of sale—for:

Goods declared of cultural interest or for which a procedure for inclusion in this protection category has been initiated.
Goods that have been declared non-exportable as a precautionary measure.
Goods owned by public institutions.

Free Exit

Goods that are less than 100 years old do not require an export permit, but the person requesting the export must submit to the competent authority a sworn statement or other documentation to prove the age of the works.

Extra-EU Exports

For exports to non-European countries, one of the three types of authorisation must be requested for the same categories of goods required for intra-European export.

Goods less than 100 years old are subject to Council Regulation (EC) No 116/2009 of 18 December 2008 on the export of cultural goods, which requires an export licence for items aged between fifty and one hundred years whose value exceeds a specific threshold, depending on the category of the item (€15,000 for drawings, prints and photographs; €50,000 for sculptures; €150,000 for paintings; €30,000 for watercolours, gouaches and pastels, etc.).

Free Exit

No authorisation is required for:

Goods aged between fifty and one hundred years whose value is below the thresholds mentioned above.
Goods less than fifty years old, whether by living or deceased authors.

Purchase by the State

Pursuant to Article 33 of Law 16/1985, the submission to the Ministry of an application for temporary export with the possibility of sale or for permanent export is considered an irrevocable offer of sale to the State, with the stated value in the export application serving as the sale price.

The State's acceptance of the offer is formalised through a Ministerial Order issued by the Ministry of Culture and notified to the applicant.

The Administration has a period of six months to expressly accept or reject the offer, and in the event of acceptance, it will have one year to complete the payment.