The Italian art market is characterized by a regulatory system that dates back to 1909.
Today, the main legal framework is the Decreto Legislativo 22 gennaio 2004, n. 42 (Cultural Heritage Code). The provisions of the Cultural Heritage Code concerning the art market are, by the same token, anachronistic and highly protectionist.
The Cultural Heritage Code sets forth several limits to the circulation of artworks, including:
The “declaration of cultural interest”2 preventing the owners of “classi ed” artworks from exporting them on a permanent basis. Furthermore, the state is entitled to exercise a preemption right when such artworks are sold.
The requirement of a license (attestato di libera circolazione) to export any artworks of cultural interest, with the sole exemption covering works created by living artists or created fewer than 50 years ago. There is no monetary threshold exempting items with a market value below a certain amount from state control. Hence, the export control does not re ect the actual monetary value of the artwork, while Export O ces (U ci Esportazione) follow subjective criteria and decide with utmost discretion whether an artwork is “rare” or whether its “quality” prevents the owner from exporting it. Furthermore, private collectors frequently do not receive adequate explanations of the grounds for export denials, in particular in relation to why a certain artwork is of interest in terms of national cultural heritage.
The general criteria upon which export licenses are granted are set forth in a circular issued by the Public Education Ministry in 1974.4 The criteria give rise to a very high level of uncertainty and discretion, insofar as they focus on factors such as the “aesthetic importance” or “rarity” of a particular artifact, without specifying when an artwork is to be deemed “important” or “rare.”
The current Italian regulations lead to market uncertainty and limited sales. The ban on exporting artworks declared to be of cultural interest represents a huge deterrent for the sales of such artworks. Studies on the economic e ects of the “declaration of cultural interest” demonstrate that such a declaration decreases the commercial value of an artwork by about 40 percent. Furthermore, if an unclassi ed artwork is sold and the buyer wishes to export it, there is always the risk that the export license will be denied, with the consequent automatic declaration of public interest. This situation creates uncertainty in the market and is a strong deterrent for foreign collectors from purchasing art in Italy. Consequently, both Italian and foreign collectors prefer to buy and sell art in other countries, where they are sure that the artworks they buy can be moved without restrictions.
The regulation also leads to administrative congestion. Any artwork created more than 50 years ago by a nonliving artist— for which an export license is requested— has to be physically inspected by a commission at the local soprintendenza.5 Notwithstanding the independence of
the local authority in the nal decision, the le must be submitted for advice to a central administrative body, which must reply within a 10-day term. However, this obligation is rarely ful lled: certain intermediaries have reported that they have had to wait for several months before obtaining an export license. This procedure is applied across the board, whether the artwork in question is a Lucio Fontana masterpiece or a piece by an unknown artist, and regardless of the commercial value of the artwork and its nal destination, whether in the EU or outside the EU.
In the rst eight months of 2016, there were 75 denials of export licenses out of 9,816 requests.6 This ratio shows that the administrative system is overloaded by an unjusti ed number of export applications, with two negative e ects: (i) the public o cers in charge of export controls (whose number has decreased in recent years as a result of the public spending review carried out by the government) need to process hundreds of les with an inevitable impact on the quality of their assessment; (ii) the Italian art market cannot compete with more e cient foreign markets, not only with respect to high-value artworks, but also with respect to those with medium or low value.
Furthermore, local soprintendenze across Italy adopt di erent criteria, which makes the management of ordinary matters (such as imports and exports) extremely di cult for art professionals.
As a result of these di erences, Italian collectors and shipping agencies frequently choose Export O ces that they believe
are more “liberal” than others (known as “forum shopping”) and this creates further uncertainty as to the interpretation of Italian export law.