Mark Micallef asks:
Now that we have joined the EU, are we Maltese allowed to move antiques, such as paintings, to any country within the EU or sell any, say, through the famous Sotheby's auctions?
This depends on whether the antiques in question are considered to be part of our national heritage. If they are not items which are part of our cultural heritage then you are entitled to move them freely within the EU and sell them accordingly.
However, if the antiques are considered to be items of cultural heritage in Malta, then their free movement within the EU or outside the EU may be restricted. And if they are removed illegally from Malta, EU law sees to it that they are duly returned.
Indeed, one of the exceptions to the principle of free movement of goods (found in article 30 of the Treaty) relates to the protection of national treasures possessing artistic, historical or archaeological value. The issue of heritage protection for works of art is something which policy makers have also taken steps to protect at EU level.
The movement of cultural goods has been subject to EU law in two ways.
Firstly, EU law (Council Regulation 3911/92) regulates the export of cultural goods outside the Customs territory of the Community. This law requires that the export of cultural goods covered by it be subject to an export licence.
Secondly, EU law (Council Directive 93/7/EEC) regulates the return of cultural objects which have been unlawfully removed from the territory of an EU country. This law provides for measures that enable EU countries to secure the return of cultural objects classified as national treasures and which have been removed from their territory in breach of their national law.
This means that individual EU countries continue to be allowed to impose national measures which they consider necessary to protect the removal of such valued objects from their territory.
On the strength of this provision, Maltese law itself requires that no person may export, re-export or remove from Malta, including its territorial waters, any cultural property without the written permission of the Superintendent of Cultural Heritage.
The law defines cultural property as movable or immovable property forming part of the cultural heritage. And it defines cultural heritage as movable or immovable objects of artistic, architectural, historical, archaeological, ethnographic, palaeontological and geological importance and includes information or data relative to cultural heritage pertaining to Malta or to any other country.
This includes archaeological, palaeontological or geological sites and deposits, landscapes, groups of buildings, as well as scientific collections, collections of art objects, manuscripts, books, published material, archives, audio-visual material and reproductions of any of the preceding, or collections of historical value, as well as intangible cultural assets comprising arts, traditions, customs and skills employed in the performing arts, in applied arts and in crafts and other intangible assets which have a historical, artistic or ethnographic value.
I included this list specifically so that readers will know precisely what kind of objects may be considered as cultural property. From this list it is clear, for instance, that "paintings" are certainly included.
The movement of cultural property to other EU countries requires the prior endorsement by the Superintendence. The following procedure has been adopted by the Superintendence:
Packing lists compiled for Customs purposes must be accompanied by a declaration form stating that no cultural goods as defined in the Cultural Heritage Act 2002 are included. The Superintendence of Cultural Heritage endorses accompanying Customs documentation on the basis of this declaration and reserves the right to inspect such property prior to its movement from national territory. Packers are also expected to inform the Superintendence in advance when and where packing of goods for export and/or movement purposes will be carried out. Any necessary procedural inspections can thus be carried out in good time.
The same procedure also applies in cases of export and re-export of cultural property to non-EU countries. In this case, as already pointed out, an export licence is also required. Moreover, EU law relating to movement of cultural property outside the EU also provides a list of objects which fall within its scope. However, this list does not override the definition of national treasures adopted by individual EU countries as explained above.
It has to be said that EU law (Directive 93/7) does not itself provide for the national measures which an EU country may apply in order to restrict the free movement of national treasures possessing artistic, historical or archaeological value. However, in its preamble the directive does state that EU countries retain the right to define their national treasures and to take the necessary measures to protect them in this area without internal frontiers. So they are legally justified to take such measures and in turn these measures may not be attacked as being in breach of free movement.
In synthesis, therefore, the reader is allowed to move antiques, such as paintings, to another EU country and sell them at auctions but only if these are not considered to be cultural property.
Readers wishing to raise issues or ask questions can send an e-mail to contact@simonbusuttil.eu or visit www.simonbusuttil.eu