[Translation done with Google Translate]
The Regional Economic-Administrative Court of Andalusia (Deconcentrated Chamber of Málaga), dated September 26, 2024, has resolved to CANCEL a resolution issued by the Customs and IIEE Unit of Málaga by which it declared a very serious administrative infraction committed by painting smuggling, in accordance with article 11.1, in relation to 2.2 a) of the Organic Law 12/1995, of December 12, on the Repression of Smuggling, imposing on the alleged offender a monetary fine of 55,000.00 euros, as well as the confiscation of the seized merchandise, a situation that the Administration itself valued at €20,000.00.
This resolution fully upholds the claim filed by the director of this office, Antonio Pedro Rodriguez Bernal, who maintained that the contested resolution, among other reasons, lacked sufficient motivation. He had unexpectedly evaluated the seized painting without showing the administrator the reasons for said evaluation. , which violated their right to challenge the rulings, causing severe defencelessness.
Article 11.1, in relation to 2.2 a) of LO 12/1995, of December 12, on the Repression of Smuggling, punishes those who export goods that make up the Spanish Historical Heritage without the authorization of the competent Administration when this is necessary. . Furthermore, this sanction entails, in accordance with article 5.1 of said law, the confiscation of the “goods that constitute the object of the crime.”
It is common for owners of paintings or other works of art that are more than 100 years old or registered in the General Inventory of Movable Property to be unaware of the obligation to request an export permit before moving the piece to another country. However, the disproportionate consequences – and gigantic fines – that this omission entails (in most cases attributable to understandable ignorance and not to the bad faith of the administrator) requires that the exercise of the administration’s sanctioning power must be subjected to scrupulous analysis in each specific case.
Antonio Pedro Rodríguez Bernal is a recognized specialist in the law applicable to the Art Market, Historical Heritage and Antiquities. He has participated in numerous international transactions involving valuable works of art, either as counsel for the parties or for the participating dealers. Frequently invited to radio and television programs or interviewed in the written press to discuss current issues related to Art Law, Historical Heritage and Antiquities. As a trial lawyer he has directed and directs numerous matters in both the criminal and contentious-administrative jurisdictions. He is a professor in the Master of Specialist in Art Market Law taught by the Carlos III University of Madrid.
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