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 sources: Export Control Act 2002; Export of Objects of Cultural Interest (Control) Order 2003

Objects Subject to Export Restrictions

Any cultural object made or produced more than 50 years prior to the date of export and whose value exceeds certain thresholds requires an export licence in order to leave the United Kingdom.

When an expert adviser considers that an object may qualify as a national treasure, it is referred to the Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest (RCEWA), which assesses its importance based on the so-called Waverley criteria, which relate to:

its close connection with the history and national life of the UK (historical criterion);
its outstanding aesthetic importance (aesthetic criterion);
its outstanding significance for the study of a particular branch of art, learning, or history.

A national treasure cannot be exported.

Only temporary export licences may be granted for national treasures, for a maximum period of 3 years, usually issued for exhibitions in foreign public institutions.

Export licences

Export licences for cultural goods are issued, on behalf of the Secretary of State for Digital, Culture, Media and Sport (DCMS), by the Export Licensing Unit at the Arts Council.

Below the specified age and value thresholds (see below), no formal authorisation from the State is required to export a cultural good. In such cases, it is sufficient to apply for one of the two types of so-called open licences:

the Open General Export Licence (OGEL) for objects of cultural interest;
the Open Individual Export Licence (OIEL).

The OGEL allows any exporter to permanently export items to any destination — except those subject to embargo — provided that the value of the object is below the threshold set by law for that specific category of goods, namely:

oil or tempera painting over 50 years old: < GBP 180.000;
any item over 50 years old (unless specifically exempted): < GBP 65.000;
archaeological finds discovered in the UK and over 50 years old: GBP 0;
documents or manuscripts (not printed) over 50 years old - GBP 0;
architectural, scientific, or engineering drawings produced by hand over 50 years ago - GBP 0;
photographic positives or negatives over 50 years old - < GBP 10.000; etc.

The OIEL, on the other hand, is intended for regular exporters and includes four types specific to cultural goods:

Museums and Galleries OIEL, for the temporary export (up to three years) of items owned by or in the custody of museums and galleries;
Objects of Cultural Interest OIEL, which permits the permanent export of any item imported into the UK within 50 years of the date of export;
Manuscripts OIEL;
Coins OIEL.

If one intends to export a cultural good whose value meets or exceeds both the age and value thresholds required for the OGEL, and which cannot be exported under an OIEL either, it is necessary to apply for an Individual Export Licence.

Purchase at market value

If, following the export application, the Reviewing Committee expresses a positive opinion on the existence of one of the Waverley Criteria, it will recommend to the Secretary of State to defer the decision on the export licence application for a specified period, in order to allow interested parties to make a purchase offer at a price equal to or higher than the market value (“fair market price”), also recommended by the Committee, to retain the work within the United Kingdom.

This initiates a so-called split-deferral period. If at the end of the first deferral, normally two months, there is a potential buyer showing serious intent to purchase, the Committee recommends that the Secretary of State extend the deferral period for an additional time (usually three or four months). If, on the other hand, no serious public interest to purchase arises at the end of the initial deferral period, the Committee recommends that the export licence be granted.

A further deferral period is rarely established, except where a public body intends to acquire the item and has a genuine possibility of securing the necessary funds for the purchase.

If the exporter refuses a purchase offer from a public body or a private party committed to publicly displaying the item in the United Kingdom for at least ten years, the Secretary of State will generally refuse to grant the export licence.