Joseph Meilak asks:
A friend of mine inherited an old painting. He intends to send this painting to Italy for auction, as he has been advised that the subject matter will fetch a better realisation in Italy. However, he has come across some problems.

For instance, he needs a permit from the authorities to export this painting. He also has to pay five per cent of the estimated value (the estimate made by government experts) and after paying the fee, he may still not obtain an export certificate.

I want to ask you whether these regulations infringe EU rules regarding freedom of movement of goods within the European Union. Also, why pay a valuation fee when this local regulation is a whim of the government?

As far as I know anybody in the UK can export old paintings, not only to EU countries but also the USA.

I would appreciate your views about this matter.

One of the exceptions to the principle of free movement of goods within the EU relates to the protection of national treasures possessing artistic, historical or archaeological value.

This means that if the old painting to which the reader refers is considered as a national treasure in Malta, then the principle of free movement of goods may well be restricted and permission to move it may be refused.

This would not amount to a breach of EU law.

Because of the sensitivity of heritage protection, this matter has been regulated specifically at EU level.

One EU law (Council Regulation 3911/92) regulates the export of cultural goods outside the territory of the European Union and subjects export to an export licence. This law is not relevant in this case.

Another EU law (Council Directive 93/7/EEC) regulates the return of cultural objects unlawfully removed from the territory of a Member State. This law provides for measures which enable EU countries to secure the return of cultural objects which are classified as national treasures within the meaning of EU law and which have been removed from their territory in breach of national measures necessary to protect the removal of such objects from their territory.

This law is more relevant to the queries posed by the reader in that it provides that EU countries retain the right to define their national treasures and to take the necessary measures to protect them from leaving their national territory. 

The EU law does not directly provide for the national measures which may restrict free movement of national treasures possessing artistic, historical or archaeological value. It merely states 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 it leaves it in the hands of individual national governments to do this.

This means that EU countries, including Malta, do have the power to establish rules that define national treasures and restrict their movement.

Maltese law on cultural heritage provides that "no person may export, re-export or remove from Malta including its territorial waters thereof any cultural property without written permission of the Superintendent".

"Cultural property" means a "movable or immovable property forming part of the cultural heritage", that is, goods which are "objects of artistic, architectural, historical, archaeological, ethnographic, palaeontological and geological importance".

Thus, in Malta, the movement of cultural property requires endorsement by the Superintendence and it seems to me that this is perfectly within the limits of the discretion allowed in EU law.

This brings me to the ad valorem fee of five per cent of the value of the cultural property.

It appears that this fee is paid as an administrative fee in order to pay the expert appointed to perform the inspection of antiques in order to determine their age and artistic value. I understand that this inspection is necessary so that the authorities can determine whether they could grant the necessary permission for export.

Again, the national rules appear to be within the limits of EU law in requiring an inspection to establish the age and artistic value of the object. Otherwise they can hardly decide whether the permission to move can be granted.

The question is whether this fee is, itself, restrictive of the movement of cultural property or whether it is disproportionate to the objectives of the law.

My view is that, since there is indeed an administrative procedure that one must go through and that this procedure is required by law, then there is nothing wrong in applying a fee to cover the costs involved. And this should not be considered as an infringement of the free movement of goods.

Of course, this fee must be reasonable in the sense that it must truly cover the administrative costs involved (incurred by the Superintendence) and should not go beyond or become a pretext for withholding permission for objects (which may otherwise be moved).

Whether the fee is fair or disproportionate on the basis of free movement of goods is ultimately up to the local courts to determine. The court would need to establish whether the fee merely covers the administrative costs involved or whether it is disproportionately high thereby constituting an obstacle to free movement.

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