PUBLIC INTEREST IN PROTECTING CULTURAL HERITAGE vs. PRIVATE INTERESTS OF ART OWNERS: R.
| Author | Krasniqi, Selda |
BACKGROUND
The Painting (left), Madonna con Bambino, has had a chequered history. It had been purchased by the applicant, Mrs Kathleen Simonis, at auction in Florence in May 1990 for 8 million lire (circa 3,500 [pounds sterling]) and it was at the time understood to be a 'Panel Painting from the 1800s'. The Painting entered and left Italy several times in the 1990s (all with proper licences), as it was being looked at and restored by experts abroad. In February 1999, upon the Painting's return from the USA, Simonis applied for an Italian licence for temporary import, which was duly granted. By this time, the Painting was being attributed to Giotto (or his school). It was regarded by the Italian authorities as being 'an extraordinary pictorial document of national interest' (para 13).
Simonis was later in dispute with the Ministero Dei Beni E Delle Attivita Culturali e Del Turismo, (the Italian Ministry of Cultural Heritage and Activities and Tourism) over the validity of a series of export licences and a certificate for free movement issued by the Italian authorities in respect of the Painting. The licence of 1999 had been valid for only five years. When the claimant sought to extend this, her application was refused: the Italian authorities had in the meantime accepted the attribution to Giotto which had become apparent following the restoration and cleaning of the Painting.
At the time of the hearing before the High Court, it was in storage in London, having last arrived in the UK from Italy on 14th February 2007 just days after a judgment of the Tribunale Amministrativo Regionale di Lazio on 9th February 2007 which had annulled an Italian ministerial decree of October 2004 which, had it been valid, would have prevented its export. Later that year the Consiglio di Stato, the highest Italian administrative court, reversed the 2007 Order, so that the decree of October 2004 remained valid and refused Simonis's application for a review of that decision.
In April 2015 Simonis applied to Arts Council England, for a licence to export the Painting from the United Kingdom to Switzerland under EC Regulation 116/2009, Article 2, asserting an unfettered right to move the Painting outside the European Union. Article 2 provides:
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The export of cultural goods outside the customs territory of the Community shall be subject to the presentation of an export licence.
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The export licence shall be issued at the request of the person concerned:
(a) by a...
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