ATADA MEMO ON NEW REGULATIONS ON IMPORTING CULTURAL GOODS INTO THE EUROPEAN UNION
A heads-up to all ATADA members that sell tribal art and antiquities to EU customers. Regulation (EU) 2019/880 takes full effect on June 28th and will present significant challenges to the ongoing trade with EU based customers. The law will not affect all our dealer members as it applies to cultural goods over 200 years old (250 years for archeological objects and elements from monuments) and worth more than 18,000 euros (including all associated costs, such as sales tax, insurance, packing and shipping). There is no minimum worth for archeological objects and elements from monuments.
The impact of the new regulation could be severe for EU collectors and dealers because the obstacles to importing certain categories of cultural property may well discourage them from buying outside the EU. Buyers may be understandably discouraged because the regulation will entail additional paperwork for imports, cause delay if an import license is required, and require declarations under “penalty of law”, and pose the risk of seizure and confiscation. Please note that only the EU-based owner of the goods may initiate and complete the import process required by the regulation.
What role will the U.S. based seller play when contacted by an interested EU-based buyer of an object covered by the new regulation? First, from a pragmatic point of view, you must determine how likely it is for your client to be sufficiently motivated and interested enough to complete the import process themselves? Second, you must ascertain if the provenance of the object will meet the stated requirements of the regulation.
You must be able to supply your client with specific, accurate evidence/information concerning the object to be imported. Your client will be making a declaration as to the veracity of such provided information under penalty of law.
The EU-based importer (owner) must sign a declaration that the object was legally exported from its country of origin under the local law at the time of export. In many, if not most cases, evidence to prove legal export from the country in which the object was created or discovered is non-existent. Therefore, in many cases you may not have the information required to supply your customer with evidence to support a declaration as to the legal export of the object from its country of origin. The regulation does provide a workaround when the country of origin cannot be identified, or proof of the original lawful export cannot be provided or does not exist. If the object was exported from its country of origin before April 1972, the regulation allows for the introduction of evidence that the object was lawfully exported from the last country where it was continuously located for at least five years.
There is uncertainty over what qualifies as sufficient documentation for compliance. Guidance from EU bureaucrats has been somewhat conflicting thus far. The proof to obtain an import license for archeological objects could prove daunting: complete files, including export permits where available, customer records, sales invoices, shipping documents, title chain, catalog entries and photos. Non-archeological cultural property will require an importer’s statement, including a due diligence declaration, and EU customs may request supporting documents or additional documents at any time from the importer. Issued guidance suggests that a declaration under oath of a third party regarding the legal export of a cultural good may be acceptable in the absence of any other relevant documents. It also appears that detailed auction or exhibition catalog descriptions along with identifying photos might be sufficient evidence of original legal export (or location for 5 years within the last country from which the object was exported from) to permit the issuance of an import license or acceptance of an import statement.
There will be an interesting intersection between Regulation (EU) 2019/880 and the STOP ACT once the act’s final implementing regulations are issued and the export certification process itself is established. As to Native American and Native Hawaiian objects, if an exporter/seller obtains Export Certification under STOP for a particular object, such certification would be persuasive evidence of lawful export from the country of origin, the United States. If it actually proves possible to obtain export certification under STOP (or that the final regs clearly define those objects that do not require export certification), STOP may facilitate the export of certain Native American and Native Hawaiian objects to the EU.
Disclaimer:
The foregoing is intended only as a reminder that Regulation (EU) 2019/880 takes effect in just a couple of weeks, and that it will profoundly change the import of cultural property into the EU.
ATADA strives to provide timely, general information regarding laws and regulations potentially affecting its members. ATADA does not provide specific legal advice to individual members. If you have a question about the impact of the new EU regulation on your particular transaction, please consult legal counsel with cultural property expertise or a specialized customs broker.