Simonis, R (On the Application Of) v Arts Council England (Rev 2)

For the purposes of Article 2(2)(b) of the Export Regulation, whether a cultural object was lawfully and definitively dispatched is determined by the national law of the Member State from which it was physically dispatched. The expression has no autonomous EU-law meaning where the Regulation supplies no rules governing that dispatch.

A national court may in principle assess another Member State’s law against superior EU law. It should do so with considerable caution and vigilance. A claimant must identify the precise restrictive measure challenged. A Member State need provide material sufficient to justify that measure in its context; evidence is not invariably required where justification follows from logic or common sense. Prior notice in a cultural-export licensing system is a proportionate safeguard for national treasures, even if a licence would ordinarily be granted.

The appellant removed a painting attributed to Giotto from Italy to London in 2007 after the relevant Italian licence had expired. She did not apply for a new Italian licence. The Arts Council refused her application for a licence to export the painting from the European Union to Switzerland, on the basis that Italy, rather than the United Kingdom, was the competent Member State.

Mrs Justice Carr held that the dispatch from Italy was unlawful under Italian law and rejected the challenge. On appeal, the appellant contended that Article 2(2)(b) of the Export Regulation gave “lawful and definitive dispatch” an autonomous EU-law meaning, or that Italian law was incompatible with Articles 35 and 36 TFEU, Article 52(1) of the Charter and A1P1.

The central questions were which Member State was competent to issue the export licence and whether the Italian prior-notice requirement could lawfully be applied to the appellant.

1. Appeal dismissed unanimously. Lord Justice Green held, with whom Lord Justice Arnold and Lord Justice Underhill agreed, that the Arts Council had no power to issue an export licence for removal of the painting from the EU.

2. Article 2(2)(b) of the Export Regulation makes the competent authority in the Member State of present location conditional upon a prior lawful and definitive dispatch from another Member State. Lawfulness concerns the physical act of dispatch and is governed by the law of the state from which that act occurred. The Regulation contains no autonomous EU rules governing dispatch. Its cultural-goods scheme leaves Member States with the primary role in defining and protecting their own national treasures. The contrary construction would allow a person who had removed an object unlawfully to evade the law of the state whose cultural interest had been defeated.

3. The prior Italian dispatch was therefore governed by Italian law. The unchallenged finding was that the appellant was required to obtain a fresh certificate before removing the painting in 2007. The dispatch was consequently not lawful, so Italy remained the competent Member State.

4. An English court could in principle determine whether a foreign Member State’s law was inconsistent with superior EU law. However, it should act with considerable caution, ensure that the issue is necessary to the dispute, and be alert to an inappropriate collateral challenge. If a serious and necessary issue arose, a reference to the Court of Justice would ordinarily be the preferable course.

5. The appellant challenged only the requirement that she give advance notice by applying for a licence. She bore an evidential burden to identify that restriction precisely. There is no absolute rule that a Member State must adduce evidence in every proportionality case. The material required depends on the restriction and its context.

6. The notice requirement was manifestly justified under Article 36 TFEU. It was integral to an effective licensing system and enabled advance verification and protective action concerning national treasures. That remained so even if the authority would usually grant the licence. The asserted property-rights arguments under A1P1 did not alter the construction or validity of Italian law. No reference to the Court of Justice was justified.

• Court of Appeal (Civil Division) — dismissed the appeal and upheld the conclusion that Italy was the competent Member State for the proposed export.
• Administrative Court — Mrs Justice Carr DBE held that the painting’s 2007 dispatch from Italy was unlawful under Italian law and rejected the judicial-review challenge. The citation is not stated in the judgment.