R (on the application of Simonis) v. Arts Council England (on appeal) (1)
The decision of the High Court in this case was noted by Selda Krasniqi in a previous issue of Art Antiquity and Law (2) so the facts will be recounted only briefly here. The applicant, Mrs Simonis, sought judicial review of a decision of the Arts Council England that, under EU law, it was not the 'competent authority' to issue an export licence in respect of a painting, Madonna and Child, (3) generally attributed to Giotto, which she wished to take out of the United Kingdom, having imported it, unlawfully as it was found, to sell in Switzerland.
The Court of Appeal upheld the decision of Carr J. in the High Court (4) that, as the painting had not been 'lawfully dispatched' from Italy, the Arts Council England was not the 'competent authority' to issue the export licence. Moreover, there were no grounds for asserting that Italian law was incompatible with the relevant EU legislation, and it would not be appropriate to make a reference on this point to the Court of Justice of the European Union (CJEU).
The decision is a significant one, emphasising the relationship between EU and national legislation in the field of cultural objects. Important powers remain at the national level, notwithstanding the existence of a Regulation and a Directive governing the legality of both the movement of such objects within the European Union and of their export from the Union to non-Member States. EU law remains pivotal in this regard in the United Kingdom for the duration of the transitional, or implementation, period (due to end on 31st December 2020), notwithstanding the formal departure of the United Kingdom from the European Union on 31st January 2020.
THE PAINTING: ATTRIBUTION AND EXPORT
The applicant bought the painting, believed at that time to be a nineteenth-century imitation of Giotto, at auction in Italy in 1990 for 8 m. lira (c. 3,500 [pounds sterling]). Over the following years she exported and reimported it on a number of occasions in accordance with export licences granted by the Italian authorities, but the painting was not attributed to Giotto in any of these documents. In 1999 the painting returned to Italy and a certificate of temporary importation, valid for five years, was granted, the effect of which was that the painting could be removed from Italy to another EU country without formality during those five years, but if upon expiry of the licence the painting was still in Italy, the applicant would be required to apply for a further licence. The five-year period expired on 23rd February 2004. In January 2004 the applicant unsuccessfully sought an extension of the validity of the licence. In the meantime, the Ministero dei Beni e delle Attivita Culturali e del Turismo ('MIBAC'), the competent authority, had commissioned an expert report which attributed the painting to Giotto and recommended that the painting be purchased by MIBAC for the Italian State. In March 2000 an Italian Ministerial Decree purported to annul the 1999 licence on the basis that the cultural value of the painting had fundamentally altered because of the attribution to Giotto.
Various challenges and court proceedings ensued over the following few years, and the applicant eventually dispatched the painting from Italy to London in February 2007, an act which, on appeal, the parties agreed was unlawful as the 1999 licence had expired before the date of export and therefore the dispatch of the painting from Italy was unauthorised under the applicable licensing system.
APPLICATION TO THE ARTS COUNCIL FOR AN EXPORT LICENCE
The applicant then wished to export the painting to Switzerland and sought an export licence to this effect from the Arts Council...