Simonis, R (On the Application Of) v Arts Council England

For the purposes of Article 2(2)(b) of EC Regulation 116/2009, whether cultural goods were lawfully dispatched from one Member State is determined primarily by the law of the Member State of dispatch. The expression is not an autonomous concept of EU law. National law remains subject to the EU free-movement framework, including the exception for protecting national treasures. A receiving Member State is competent to issue an export licence only where the goods arrived following lawful and definitive dispatch. A licensing requirement is not merely technical where it gives the exporting state notice and an opportunity to protect cultural heritage. Its compatibility with EU law depends on proportionality, assessed in context.

The claimant owned a painting attributed to Giotto which had been exported from Italy to the United Kingdom in 2007. The export followed an Italian administrative court judgment annulling a ministerial decree, but the relevant temporary licence had expired and the Italian authorities had not issued a new certificate of free movement. The Italian higher administrative court later reversed that judgment.

The Arts Council refused the claimant’s application for an EU export licence to Switzerland, concluding that it was not the competent authority because the painting had not been lawfully and definitively dispatched from Italy. The central issues were whether lawfulness was governed by EU law or Italian law, whether the dispatch was lawful under Italian law, and whether the Italian licensing requirements were incompatible with EU free-movement principles.

1. Article 2(2)(b). The court was required to decide for itself whether the dispatch was lawful. The phrase “lawful and definitive dispatch” in EC Regulation 116/2009 is assessed by reference to the law of the Member State of dispatch, here Italy. It is not an autonomous EU-law concept. Article 2 is a co-ordinating provision identifying the competent Member State, and must be construed consistently with Articles 35 and 36 TFEU. ([2018] EWHC 1822 (Admin), paras 55–64)
2. Italian law. The court accepted the joint expert’s evidence. The 1999 temporary import licence had expired in February 2004. The claimant was required to obtain a new certificate of free movement before exporting the painting to the United Kingdom. The 2007 Italian judgment did not itself provide or restore lawful authority for the dispatch. The painting was therefore not lawfully dispatched for Article 2 purposes. (paras 65–83)
3. EU-law compatibility. The Italian requirement was not a purely technical formality. It required notice to the Italian authorities and enabled them to seek interim relief to prevent removal of a culturally significant object. The licensing regime and the return regime were complementary. The court applied a contextual proportionality assessment, recognising that protection of national cultural heritage involved moral or political judgment and that specific evidence was not always required. (paras 84–95)
4. Disposition. The claim was dismissed. The Arts Council was not the competent authority to issue an export licence for Switzerland. The parties were invited to draw up an order dealing with consequential matters, including costs. (paras 96–97)