To read this article in Spanish, click here.
Property which belongs to the Spanish Historical Heritage (Patrimonio Histórico Español o PHE) can not circulate freely around the world, even within the European Union, despite the existence of a single market and freedom of movement of people, goods and capital. The export of the goods, in the majority of cases, is subject to administrative authorization.
By export we do not only mean the sale or international transmission of a work of PHE, as, in the field of legislation, both nationally and internationally, the concept has a much broader meaning.
Also it should be made clear that the legal system of exports of cultural goods, established in the Law of Spanish Historical Heritage, and it´s system of authorizations, has been very nuanced by the regulations of the European Union, particularly by Regulation (EEC) nº 3911/1992, of the Council, of 9 December 1992, concerning the export of cultural goods. With regards to the repression of export, since we are talking about international traffic of goods, Spanish regulations must be understood alongside both EU regulations and the various universal-scope treaties ratified by Spain, which attempt to solve the problem of the collision of jurisdictions and conflict of laws.
In this post, we shall not get bogged down in an overall analysis of the problems that the export of cultural property – both legal and illegal – entails and we will focus on offering a few simple explanations of the pertinent Spanish legislation. The reader must take into account that we speak of a particularly delicate matter and the same regulation will not be applied to each and every export, so you should seek expert advice when the time comes to act.
Concept of Export and Exportable Goods
For the purposes of the law of PHE, export means the departure from the Spanish territory of any of the assets that comprise the Spanish Historical Heritage. In the concept of export is included any act or operation that implies the cultural good leaving the country and not just the sale of the good to a buyer located in a third country – non-member of the European Union -. Therefore, even the mere leasing of property, for example, for the purposes of museum exhibition or research, is included in the concept.
Not all the goods of the PHE are exportable and not all those goods are subject to limitations.
The following good are not exportable, by express provision of the law:
1) Those goods that the Government declare expressly not exportable for belonging to the Spanish Historical Heritage, as a precautionary measure until the process is begun to include the good in one of the categories of special protection provided for in the law.
2) Property declared of cultural interest, except in the case of a temporary departure from Spain, fulfilling certain conditions and guarantees specified in the mandatory administrative authorisation or the export is carried out as a result of intergovernmental agreements of exchange.
There is also other property implicitly not exportable, such as that belonging to the ecclesiastical institutions, which are owned by public administrations, those that belong to the national heritage, the archaeological heritage and, provisionally, those that have initiated the process to declare the good of cultural interest. These goods could temporarily leave Spain or be exchanged in similar conditions to those mentioned in the preceding paragraph.
Goods that are Exportable with an Administrative Authorisation
Goods included in the Spanish Historical Heritage that are more than a hundred years old and, in any case, those enrolled in the General Inventory of movable goods not declared of cultural interest which have singular relevance are subject to administrative authorisation, which should be requested by the owners or holders. Also, provisionally, the same applies to those goods which have been the object of an application for inclusion in the Inventory. The export of these goods is not only subject to administrative authorization, but also there is a right of pre-emption which may be exercised by the Spanish Administration.
Goods which are Exportable with an Administrative Authorisation which is Always Granted
Moveable goods whose import has been done legally and is properly documented so that the imported good is fully identified. Over the course of ten years, since import, such goods may be exported prior license from the state administration, which shall be granted provided that the application complies with all the legal requirements, without providing for any right of preferential acquisition.
Goods which can be Freely Exported
Residually, those goods that are not covered in the preceding paragraphs can be exportable freely. I.e. goods included in the Historic Heritage which are less than 100 years old and property which is more than 100 years old which does not have any relevance to the Historical Heritage. This assertion, as obvious as it seems, raises some important issues in these matters.
How can we know if a good, which is more than 100 years old, which is not registered in the property registry of Cultural Interest or in the inventory, has any relevance to the PHE and is therefore subject to official export authorization? The generic and abstract definition of PHE leaves the owner of these goods in an apparent legal uncertainty, that, in some cases can serve to exempt him from criminal responsibility for his offences.
Application for Export and Simultaneous Non-Refusable Sales Offer in Favour of the Administration
As a general rule, whenever one makes a request for export, the declaration of value made by the applicant will be considered a Non-Refusable offer on behalf of the State Administration, which, if it does not authorize such export, will be able to accept the offer within a period six months and will have one year to make the appropriate payment. The rejection of the request for export does not imply the acceptance of the offer, which must always be express.
The application for the export permit will be sent to the Ministry of Culture, except in the Autonomous Communities that have assumed responsibility for processing these applications.
Decision Period and Tacitly Positive Administrative Silence
The decision of the export permit application shall be given within the period of three months from the date on which such application has entered the records of the competent administrative authority. Once this period has expired without express decision, the applicant can assume that the request has been granted.
The tacit decision requires the issuance of the corresponding certification, which will be responsibility of the General Direction of Fine Arts and Archives of the Ministry of Culture.
The authorization for the export of any movable property included in the Spanish Historical Heritage will be subject to a fee, unless it is an export of movable property that takes place during the ten years following their importation (and meets certain legal requirements); a legally authorized temporary export; or export of moveable objects from living artists.
The infringement of the provisions on export of goods of PHE can result in various penalties.
a) Attribution of Illegally Exported Good to the State
Movable goods, included in the PHE, exported without the required authorization (which also applies by logical deduction to non-exportable goods) belong automatically to the State.
b) Crime of Contraband
The export of a moveable good included in the Spanish Historical Heritage, carried out without the necessary authorization, can constitute a criminal offence, or, possibly, smuggling. Those that were involved in the export and those others that by their action or omission, willful or negligent, made it possible will be held jointly responsible for the offence committed
According to the organic law 12/1995, of 12 December, of Suppression of Smuggling, the crime of smuggling is comitted, provided that the value of the goods is equal to or greater than 50,000 €, when goods that integrate the Spanish Historic Heritage are exported or dispatched without the necessary authorization, or having obtained the authorization with false documents or data.
In general, those who commit the crime of smuggling will be punished with the penalties of imprisonment for one to five years (in its upper half) and a fine.
In cases of negligence, the sentence will be applied to a lesser degree.
The goods will be confiscated.
c) Administrative Infractions
Unless they are constitutive of crimes, illegal export constitutes an administrative offence punishable, when the good can be valued economically, with a fine of up to four times the value of the damage caused. In any other case, with a fine of up to 601,012.10 €.
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For more articles in English, click here.Antonio Pedro Rodríguez Bernal Lawyer and renowned specialist in the law applicable to the art market, historical heritage and antiques. He has participated in numerous international transactions of valuable works of art, either as a lawyer of the parties or of the participating dealers. He is frequently invited to radio programmes or interviewed in the press to discuss current issues relating to the Law of art, historical heritage and antiques. Email: firstname.lastname@example.org