LA LEGGE DELL’ARTE by Giuseppe Calabi
Article 9 of the Italian Constitution, which is one of its fundamental principles, provides that the State must protect the historical and artistic heritage of the Nation.
This principle gives rise to the legislative decree of 22 January 2004, no. 42 (Code of Cultural Heritage and Landscape). The decree is in the wake of a pre-Republican national regulatory tradition dating back to 1909, which added the principle of enhancement to the principle of protection (art. 1): both principles contribute to preserving the memory of the national community and its territory and to promoting the development of culture.
The Code provides for a list of items considered as cultural goods and, as such, worthy of protection by the State. These include the goods referred to in art. 10, par.
3, i.e. the property belonging to private individuals who are declared to be of cultural interest pursuant to art. 13 of the Code.
The declaration of interest is made by means of the so-called “notification”, i.e. a communication made by the Ministry by which, in fact, the private individual is “notified” that a certain item in his/her possession is declared particularly or exceptionally important for the Italian cultural heritage.
What are the items that can be declared as being of interest?
Article 10, par. paragraph 3, of the Code indicates the items that can be declared as being of cultural interest: not only movable and immovable goods of particularly important artistic, historical, archaeological or ethno-anthropological interest belonging to entities other than the State, public bodies or non-profit private legal entities, but also book collections and libraries of exceptional cultural interest belonging to private individuals, things of particular importance “by reference to political, military, literary, artistic, scientific, technical or industrial history” and collections or series of objects of exceptional interest.
It is not defined what the distinction between “particular” and “exceptional” interest is. However, it is a shared opinion that, in the case of exceptional interest, the declaration measure must rely on “stronger” reasons than those supporting the declaration of particular interest.
The Code provides that the protection does not apply to items of artistic, historical or ethno-anthropological interest or to collections or series of items that are the work of a living author or whose execution is not older than 70 years (art. 10, par. 5). An exception to this has been introduced: items made by a deceased author, whose execution dates back to more than 50 and less than 70 years, for which there is an exceptional interest in the integrity and completeness of the heritage of the Nation.
The 70 year time threshold was introduced by Law 124 of 4 August 2017, together with a value threshold of € 13,500, only relevant for the purpose of exports: below the indicated value threshold, goods of cultural interest over the age of 70 should be able to leave the Italian territory freely without authorisation (certificate of free movement and export license, if destined outside the territory of the EU), but on the basis of a simple self-certification.
However, the value threshold has not yet been implemented.
Before the reform, the time threshold was 50 years.
What happens if an item is notified?
Following the declaration of interest procedure pursuant to Art. 14 of the Code, the right of ownership of the notified property is subject to a number of limitations (for this reason, the declaration of interest is also referred to as a “constraint”). For example, the property can no longer leave Italy definitively and the owner must normally request authorisation to move the property within the Italian borders, for example if it needs to be temporarily transferred to a museum for an exhibition, or to a restorer. In addition, in the case of a sale for consideration (i.e. in the case of a sale or exchange), the seller must notify the Ministry, which has sixty days to exercise the right of first refusal (i.e. to purchase the goods at the price established in the negotiations between the parties). Obviously, the cultural good cannot be destroyed or ruined.
Some of the effects of the constraint, however, are also applied as a precautionary measure for the duration of the procedure of declaration of cultural interest (i.e. for 120 days from the start of the procedure).
What is the purpose of the notification?
The purpose of the notification of cultural property is noble and constitutionally recognised.
However, the question arises as to whether this important instrument is always used with a view to protecting and enhancing the national cultural heritage or whether, conversely, it sometimes results exclusively in one for the private owner, without any marginal utility for the protection of the national cultural heritage.
Unfortunately, in fact, the Italian system does not have a policy of enhancing the private heritage bound, and the cultural assets subject to constraint often end up constituting a considerable burden for the owner, who instead of rejoicing at the fact that their own property constitutes a national “treasure” (taking up the definition given to cultural assets by French law), finds an asset whose market value has been reduced by two thirds, often with difficulty of alienation. Going back to the analogy with the French system (which is very sensitive to the reasons for protecting its cultural heritage), in France there is a very complex set of rules on the notification of interest, which includes tax relief also for those who contribute to the acquisition by the State of assets declared to be of cultural interest.
In Italy there is no such system, and the State has no obligation to purchase cultural goods.
On the other hand, it is well known that collectors often release and keep out of Italy works whose age is approaching the time threshold in order to avoid the risk of incurring in notification, and this undoubtedly can discourage the presence of new collections of modern and contemporary art in our country. Moreover, the notification system is based on the exercise of discretion by ministerial bodies that can bind goods that objectively do not have relevance for the Italian heritage and the declaration of interest can be challenged in court only for violation of the law, lack of motivation or excess of power: However, appeals are rarely successful because, apart from cases in which the motivation is macroscopically lacking or contradictory, the administrative judge, in accordance with the principle of the separation of powers, cannot substitute his own assessment of the existence or not of a cultural interest relating to an asset to that of the official of the Ministry.
It is therefore clear that the Italian system of notification often constitutes a considerable burden for collectors, who find themselves with a “halved property”. In addition, if art has a cosmopolitan vocation and the enhancement of artists and their works also derives from the circulation of works of art, there is the risk of having numerous works imprisoned in Italy (and often in “invisible” places, known only to the owner and the State: normally there is no obligation of public use of restricted works of art belonging to private individuals), while the same, if purchased by foreign museums or institutions, could well have received an effective enhancement.
If the aim of the protection legislation is (also) to enhance the cultural heritage, in a global context increasingly oriented towards cultural circulation and exchange, it is doubtful whether the constraint, especially for modern and contemporary artistic heritage, represents the best way to protect the rich Italian artistic, historical and cultural identity.