At the recent Frieze art fair in London, Italian mid-twentieth century work moved briskly. Sotheby’s Italian and Contemporary sales broke records, including the highest price ever paid for the work of Piero Manzoni, whose “Achrome” sold for £12.6 million. Several galleries focusing on Italian art of the 1950s and 1960s recently opened in London and Paris. Some have suggested that the rising amount of sales activity in Italian mid-century work is driven, at least in part, by pressure exerted by Italian laws restricting the export of art. The Art Newspaper recently reported that “[d]ealers and collectors are rushing to export works from Italy before they fall under the restrictions. . . . The number of works by Arte Povera artists (such as Alberto Burri, Alighiero Boetti, Mario Merz and Michelangelo Pistoletto) sold at auction has grown from 35 in 1997 to nearly 300 in 2013.” Of course, increased auction sales reflect changing tastes and collector interests, but the looming effect of export restriction casts a long shadow over the Arte Povera works held in both public and private collections in Italy.
A common form of regulation of the movement of cultural property is restriction on the export of cultural property determined to be part of a country’s national treasure or national patrimony. More than 150 countries currently have export restrictions on cultural property.1 National export regimes generally employ multiple export regulation mechanisms, which can operate together. Among the forms of export restrictions of particular interest to parties to cultural property-secured transactions are export licensing and preemptive rights.2
Under the Italian Code of Cultural Heritage and Landscape (ICCHL), works by living artists or works created less than 50 years ago do not require an export license, but works older than 50 years do.3 ICCHL restrictions apply to all artworks that are located in Italy, whether created there or not. The Art Newspaper noted that “[u]nlike most European countries, Italy has no lower price limit for works that need an export licence.” Export restrictions can have a material impact on works’ value, since “[o]nce they are designated as national heritage, works lose, on average, 70% to 80% of their value, because they can no longer leave Italy, reducing their appeal to foreign buyers.”
A dramatic example of how export restrictions can affect a collector’s rights and a work’s value arose in the case of Beyeler v. Italy,4 in which the Italian government issued an order determining that Van Gogh’s “Portrait of a Young Peasant” (1889) was “a work of historical and artistic interest.”5 The determination gave the Italian Ministry of Cultural Heritage a right of preemption to acquire the painting. The owner sold the painting to a Swiss collector, who, after the preemption period had lapsed, applied for an export license. The request was denied “on the ground that it would be seriously detrimental to the national cultural heritage for the painting to be exported.”6
In May 1988, more than a decade after he purchased the painting, the buyer notified the Ministry that he had sold the painting to the Peggy Guggenheim Collection for a purchase price of $8.5 million. However, in November of that year, the Ministry informed the buyer that it would exercise its right of preemption, and would pay him the original purchase price he had paid for it in 1977. The matter was litigated in a variety of courts, before reaching the European Court of Human Rights, which issued a decision in favor of the buyer in 2000.
A group of galleries, dealers, and auction houses are lobbying the Italian government for reform of the ICCHL. “Over the next year,” The Art Newspaper notes, “the group seeks to bring Italy closer in line with France and the UK, extend the age limit on works from 50 to 75 years and introduce a minimum value for works requiring an export licence.”
1 Clare McAndrew, Fine Art and High Finance: Export Advice on the Economics of Ownership 169-170 (2010). up
2 “Preemptive rights” are “rights associated with export licensing and give public museums or other institutions the first right to purchase the work of art to be exported at either a competitive market price or one set or agreed through negotiation. License application is initially needed to defer export and allows time for potential domestic purchasers to mobilize the necessary funds.” Id. up