Introduction

Art export laws are designed to prevent art and artifacts of significant cultural value from leaving its country of origin while also preserving the home country’s competitiveness in the international art market. Many countries have struggled with striking the right balance: Germany’s recent amendment to its cultural heritage protection law in June 2016 was fiercely opposed by the country’s private collectors and art dealers who are now required to obtain an export license for works older than 50 years that are valued over £150,000. Italy sought to achieve balance between government and individual interests by increasing the threshold for artworks from 50 to 70 years under its amendment passed in August 2017. The following article written by Dr. Linda Roland Danil explores the UK’s efforts to resolve these competing interests—as complicated by the post-Brexit exchange rate—in the context of the recent, successful export ban on Bernardo Bellotto’s masterpiece, The Fortress of Königstein from the North.

The Purchase

The purchase by the London National Gallery in August 2017[1] of a painting by the Venetian artist Bernardo Bellotto (1722 – 1780) – the nephew of Giovanni Antonio Canal, or Canaletto – who, like Bellotto, painted, amongst other things, ‘vedute’ or views of landscapes) – was achieved consequent to the imposition of a temporary export bar[2] that allowed the National Gallery to raise the necessary funds to match the £11 million offer by a private buyer. (The National Gallery actually paid £11, 670,000 – the additional £670,000 reflected the fall in the value of the pound after the Brexit referendum).[3]

The painting, The Fortress of Königstein from the North (c. 1756 – 58), was one of a series of five, large-scale paintings commissioned by Augustus III, Elector of Saxony and King of Poland, and depicts the renovated medieval fortress in the countryside near Dresden, Germany.[4] The retention of the painting in the UK is a clear example of how the UK export licensing system for cultural goods – which has been described as one of the best in the world[5] – works. The system provides that for certain cultural goods, such as those above a certain financial threshold (but not exclusively) and over 50 years of age, an individual licence is required for export. This provides the opportunity for the UK to retain cultural goods that have been deemed to be of outstanding national importance[6] that would otherwise be exported, thus providing a balancing act, insofar as it is possible, between protecting national treasures in the public interest; private property rights; and the position and reputation of the UK as an international art market.[7]

The Waverley Criteria

In relation to whether an object could potentially be deemed a ‘national treasure’, an Expert Adviser may object to the granting of a licence if s/he believes that an object satisfies one or more of the three Waverley Criteria[8] (with none of the criteria being more important than the other).[9] If the Expert Adviser objects, the Export Licensing Unit (ELU) refers the application to the Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest – a non-statutory independent body set up to advise the Secretary of State for Culture, Media and Sport on whether a cultural object that is subject to an application for an export licence is, indeed, a national treasure within the context of the Waverley Criteria.[10] The Waverley Criteria are as follows:

  1. History: Is it closely connected with our history and national life?
  2. Aesthetics: Is it of outstanding aesthetic importance?
  3. Scholarship: Is it of outstanding significance for the study of some particular branch of art, learning or history?

In relation to history, the category can include objects which were produced abroad, but which have acquired national importance by association with an important person, location or event. In relation to aesthetics, the assessment of outstanding aesthetic importance does involve a subjective judgment; however, the condition, as well as the quality of the work, and the extent of the damage or restoration to which it may have been subjected may also be taken into consideration. Finally, in relation to scholarship, the object may be considered of outstanding significance for scholarship either on its own merits, or on account of its connection with a person, place, event, archive, collection or assemblage. Further, scholarship in relation to culture can cover a wide range of disciplines – and could therefore encompass art history, archaeology, ethnography, anthropology, palaeontology, science, engineering, architecture, literature, and so forth. By all means therefore, the list is merely illustrative and not comprehensive, and could cover additional disciplines.[11]

If a decision is made that the object does meet one or more of the Waverley Criteria, the export licence is not outright refused; rather, a delay period, generally in between two to six months, is granted in order to allow an offer to be made at or above the market price (the ‘fair market price’[12]) The right of the Committee to deny an export licence is not absolute, and can only be upheld if a bona fide offer is forthcoming from a potential purchaser; otherwise, the licence must be granted.[13]

Implications

The purchase of The Fortress by Bellotto does not have any significant implications on the system of export licensing for cultural goods as it stands in the UK. However, the purchase does provide a clear example of a ‘success’ story in terms of the UK retaining a work of outstanding national importance whilst balancing all of the relevant parties’ rights. The UK system provides a clear example of the benefits of a more liberal (but not unrestricted) approach to the export of cultural goods vis-à-vis, for example, the stricter, only recently changed Italian system. The change was brought about specifically through Law n. 124 of 4 August 2017, which came into effect 29 August 2017.[14] Under previous law in force in Italy, any artwork created more than 50 years ago by a deceased artist necessitated an export licence – regardless of its market price. This was argued by critics to seriously undermine Italy’s competitiveness in the international art market.[15] Consequent to Law n. 124 however, the age restriction was pushed up to 70 years and a minimum monetary threshold of Euros 13,500 was also introduced, although this excludes archaeological artefacts, manuscripts, and incunabula.[16] However, the minimum monetary threshold is much below, for example, the Euros 150,000[17] set out for ‘Pictures’ in Council Regulation (EC) No. 116/2009, as per Annex I, B. In the UK, on the other hand, and specifically when an item is being exported within the EU – an individual export licence for a ‘[…] painting in oil or tempera (excluding any portrait of a British historical personage)’[18] and over 50 years of age, for example, will be required when the value of the work is or exceeds £180,000. Paintings in any other medium other than oil and tempera and over 50 years of age for which an individual export licence would be required, one would presume, would fall under the minimum monetary threshold of £65,000.[19]

[1] The National Gallery (2017): Saved for the nation [Online] Available at: https://www.nationalgallery.org.uk/about-us/press-and-media/press-releases/saved-for-the-nation-bellotto (accessed 10 September 2017).

[2] Department for Digital, Culture, Media & Sport and Hancock, M. MP (2016) Export bar to save £11m Bellotto painting: Culture Minister steps in to prevent painting of Königstein fortress from export [Online] 18 November. Available at: https://www.gov.uk/government/news/export-bar-to-save-11m-bellotto-painting (accessed 10 September 2017).

[3] USA Art News, 2017. London’s National Gallery Will Purchase Painting by Bellotto for Over £11m. [Online] 23 August. Available at: https://usaartnews.com/art-market/londons-national-gallery-will-purchase-painting-by-bellotto-for-over-11m (accessed 10 September 2017)

[4] The National Gallery (undated) The Fortress of Königstein from the North, about 1756-8, Bernardo Bellotto [Online] Available at: https://www.nationalgallery.org.uk/paintings/bernardo-bellotto-the-fortress-of-konigstein-from-the-north (accessed 11 September 2017).

[5] Furness, H. (2017). Give art world ‘legal muscle’ to stop paintings selling abroad, experts argue. The Telegraph [Online] 20 January. Available at: http://www.telegraph.co.uk/news/2017/01/20/give-art-world-legal-muscle-stop-paintings-selling-abroad-experts/ (accessed 11 September 2017).

[6] Arts Council England, 2016. UK Export Licensing for Cultural Goods: Procedures and guidance for exporters of works of art and other cultural goods. [Online] Available at: http://www.artscouncil.org.uk/sites/default/files/download-file/Guidance_for_exporters_issue_1_2016.pdf (accessed 27 September 2017).

[7] Op. cit.

[8] The Waverley Criteria were adopted in the United Kingdom in 1952, and were based on recommendations in a report chaired by John Anderson, first Viscount Waverley: Chamberlain, K. and Hausler, K. (2015) United Kingdom. In: Nafziger, J.A.R. and Kirkwood Paterson, R (eds.) Handbook on the Law of Cultural Heritage and International Trade. Cheltenham, Edward Elgar Publishing Limited, pp. 460 – 505.

[9] Arts Council England, Op. cit.

[10] Arts Council England, Op. cit.

[11] Arts Council England, Op. cit.

[12] Arts Council England, Op cit., p. 14.

[13] Crewdson, R. (2006). Hypothetical on the Enforcement of Export Prohibitions and a Commentary on the Hypothetical. In: Hoffman, B.T. (ed.) Art and Cultural Heritage: Law, Policy and Practice. New York, NY: Cambridge University Press, pp. 194 – 196.

[14] Cipollini, G. and Favero, V. (2017). Italy Eases Export Rules for Post-War Works. Mondaq [Online] 12 September. Available at: http://www.mondaq.com/italy/x/627946/music+arts/Italy+eases+export+rules+for+postwar+works (last accessed 27 September 2017)

[15] See, for example, Arkell, R. (2015) Italian trade lobby to change export laws. Antiques Trade Gazette [Online] 12 October. Available at: https://www.antiquestradegazette.com/news/2015/italian-trade-lobby-to-change-export-laws/ (last accessed 27 September 2017)

[16] Cipollini and Favero, Op. cit.

[17] Cipollini and Favero, Op. cit.

[18] Arts Council England, Op.cit, p. 30.

[19] Arts Council England, Op. Cit.