‘About to throw a wrench in the market’: a legal expert’s view on upcoming changes to EU import law

When Regulation (EU) 2019/880 takes full effect on 28 June it is expected to shake up the art market. The law, intended to counteract the illicit trafficking of art and antiques, requires that cultural goods older than 200 years (250 years for archaeology and elements from monuments and sites) and worth more than €18,000 (there is no minimum value for archaeology and elements from monuments and sites) being imported into the European Union (EU) should have proof that they were lawfully exported from their country of origin. We speak to the lawyer Pierre Valentin, the joint head of art, heritage and cultural property at Fieldfisher, about the forthcoming changes.

The Art Newspaper: What impact do you expect the new EU cultural goods regulation will have on the art and antiques market, both on the market in the EU and on businesses that trade there?

Pierre Valentin: Regulation (EU) 2019/880 is about to throw a wrench in the market. Collecting areas most affected will be art and collectibles created or discovered outside EU borders. The regulation will discourage the introduction of non-European cultural property in the EU, resulting in a regrettable cultural loss for future generations.

The impact could be severe for collectors and the trade. Collectors in the EU are affected because the obstacles introduced to importing certain categories of cultural property will likely discourage them from buying outside the trading bloc. This is bad news for the non-EU trade—especially London, due to its dependence on EU business. Non-EU dealers will be further disadvantaged if they traditionally display art at EU art fairs because they will now face serious obstacles if they continue to show at these fairs. For EU dealers, it is bad news, too, because buying stock outside the EU or attracting non-EU consignments will become problematic.

Are your clients concerned about their introduction?

Absolutely—especially those collecting or dealing in ancient art.

Firstly, the regulations will require the production of evidence of lawful export from the country of origin, even when the export occurred sometimes decades before June 2025. Previously, no one was required to retain evidence of lawful export. Once exported, the export licence became irrelevant and it was disposed of. Suddenly, the EU introduces new rules that overnight now require importers to show evidence of lawful export. That evidence often no longer exists. While the regulation allows for evidence of lawful export other than the export licence, for most objects that is wishful thinking— there is simply no evidence. Nor is there evidence of unlawful export. Yet the regulation places on the importer the burden of positively proving lawful export, even when there is no reason to believe that the object was unlawfully exported.

Secondly, there is the problem of identifying the country of origin. Today’s national borders are typically rigid lines agreed upon through recent treaties or conflicts. Historically, borders were often vague, based on natural landmarks or defined by zones of influence rather than precise lines.

Thirdly, the question of when an object left the country of origin is often open to debate. Assuming a date can be ascertained with any degree of certainty, the next challenge is identifying national export controls in force at the time. That may lead to an exercise in legal archaeology.

Fourthly, there are concerns about delays in securing the import licence when one is required, and the amount of data required to apply for a licence or to make an importer statement. This is especially an issue for non-EU-based dealers traditionally showing at EU-located art fairs such as Tefaf in Maastricht, Parcours des Mondes in Paris or Brafa in Brussels.

Fifthly, non-EU art market participants are concerned about the loss of business from EU buyers. Those buyers will be discouraged from buying in London, New York or Taiwan because there will be additional paperwork, delays if an import licence is needed, declarations to make “under penalty of law”, and the risk of seizure and confiscation. The latter risk is aggravated by the fact that the authors of the regulation do not seem to have realised that its drafting is flawed: under the so-called “general prohibition”, cultural property can be seized and confiscated even if it was lawfully imported in the EU. This is because if, for example, the country of origin of an object cannot be reliably identified, there is a derogation allowing the importer to provide evidence that the object was lawfully exported from the last country in which it was located for more than five years. However, under the general prohibition, the same object can then be confiscated once it is on EU soil if the owner cannot provide evidence of lawful export from the country of origin. Thus, you end up in this Kafkaesque situation where an object was lawfully imported into the EU under the new rules, yet under those same rules, it ends up being seized and confiscated once in the EU.

Sixthly, the regulation is inequitable. The old adage of “innocent until proven guilty” is reversed. The regulation assumes that cultural property is tainted unless the importer positively proves that it is not, by adducing evidence of lawful export. The adage is a fundamental principle of European criminal justice systems; statutes that reverse the burden of proof undermine that principle. For a reverse burden to be considered legitimate, it must be justified and proportionate. The regulation was adopted to counter money laundering and terrorism financing, yet the data used by the European Commission to justify it is far from reliable. Further, the proportionality of the measures introduced by the regulation is highly questionable.

What sectors of the market do you think will be most affected?

The antiquities trade is in the hot seat. Collectors and dealers in ancient art, manuscripts and sculptures, especially from the Islamic world and Asia, are bracing for impact. Auction houses and galleries handling these items will face higher due diligence costs, and smaller players might find themselves struggling to keep up.

What steps can dealers, galleries and collectors take to prepare for the introduction of the regulation?

First off, read the fine print. Get familiar with Regulation (EU) 2019/880, the Implementing Regulation and the European Commission’s Q&A. Customs and the ministries of culture in the EU member states are issuing pamphlets describing the new import regime; they are worth studying, too, because the member states may not apply the regulation consistently.

Make sure that you audit your inventory to identify objects caught by the regulation. Once you have made a list, consider the country of origin of each object, when it was exported from that country and whether export controls were in force at the time, then look for documentation evidencing lawful export or for individuals who can attest to their lawful export. Affidavits from witnesses or experts are considered acceptable evidence. Consider also whether shipping companies might have retained export documentation.

What advice would you give on how to navigate the regulation when proof of lawful export is hard to come by or simply does not exist? Are there any workarounds?

If the object left its country of origin before April 1972, the regulation allows you to adduce evidence that the object was lawfully exported from the last country where it was located for at least five years. The same derogation applies if the country of origin cannot be readily identified. In those two case scenarios, the temptation will be for some to park cultural property in an export-friendly country such as the US for five years, then export is from that country and adducing evidence of that lawful export. Many countries didn’t introduce export restrictions until the 1970s. For example, Nigeria’s export restrictions kicked in only in 1979, so a 1975 export would likely be fine. If all else fails, expert opinions and legal testimony can sometimes tip the scales in your favour.

Is there a risk that some will start forging export documents or written correspondence that appears to show the item was lawfully exported? Presumably authentication of these documents will be difficult?

No doubt some will try, but it’s a high-stakes gamble. Fake paperwork can lead to confiscation, heavy fines and criminal charges.

Where an object can be imported by filing an importer statement, the importer could be tempted to declare that it was lawfully exported from the country of origin, even if the importer does not know, and hope for the best. The issue here is that customs can ask to see the documentation showing lawful export. If the importer is found to have made a false declaration, not only can the importer be prosecuted but the object can be confiscated.

There has been much coverage of the negative aspects of the new regulation. Do you see any positive benefits?

Certainly. While the market groans under the weight of more red tape, the regulation does bring some benefits. Looking ahead, there is likely to be greater compliance with export controls and more care to preserve evidence of lawful export. That, in turn, may add information to the provenance listing of an object, thereby potentially enhancing its value for study and even its monetary value. Another potential benefit is that cultural property unlawfully removed from zones of conflict will become more difficult to import into the EU.

Might the UK’s art market benefit due to it being easier to bring cultural goods into the UK than the EU?

Arguably yes, although the risk is that Britain could be seen as more laissez-faire, thus attracting undesirable operators and “tainted” cultural property. That, in turn, could damage the reputation of the British art market.

How do the EU’s General Data Protection Regulation (GDPR) laws square with the need for transparency under the new import licensing regulation? If customs demand that importers divulge such protected information, will the EU GDPR laws take precedence? Has there been any advice issued on this?

Customs in the EU member states will have access to the information that importers must upload on the new EU database being launched in June 2025. However, customs are classified as data controllers under GDPR, meaning that, in principle, they can only use collected information for the purpose of enforcing the regulation. If the information required is being uploaded by an agent, the agent is not obligated to disclose the name of the owner of the property.

That begs the question: will agents be willing to upload the required information and sign off on it “under penalty of law” unless they have seen clear evidence of lawful export from the country of origin? Probably not.