The 'Law on Competition' (Law n. 124, 4th August 2017) introduced some significant changes to the system regulating the definitive exportation of cultural goods from Italy. Some experts consider it to be a step forward in the development of a competitive art market in Italy as well as a welcome transition towards the EU Regulations. Others, however, believe that this new legislation imperils the retention of national cultural property within the Italian borders. This article aims to critically examine what this reform accomplishes and how it relates to EU Regulations on the import and export of cultural goods.
INTRODUCTION: THE REGULATION OF CULTURAL GOODS IN ITALY FROM AN HISTORICAL PERSPECTIVE
The evolution of the Italian legislative system on the protection of movable cultural goods has been characterised by an ineliminable tension between national and private interests. The national interest is primarily aimed at retaining within the national boundaries all those cultural objects which possess a variety of outstanding values (for example, authenticity, morality and historical memory) and fundamental functions (for example, the power to generate emotions, shape a national identity and create a sense of community) for the State (1) On the contrary, the private interest is centred on the right of private entities to alienate those cultural objects they legally own, as well as to move them without limits or restrictions (principle of free circulation). (2)
Following Italian unification (17th March 1861), the process for the development of a legal framework aimed at protecting the national cultural heritage became long and tortuous owing to two main factors. First, the difficulty of co-ordinating the pre-existing legal systems into a cohesive and unitary national law (mainly, the 'Piedmontese tradition' which accorded primacy to the rights of private ownership, and the 'Roman tradition' under which the national-public interest prevailed over any other value). (3) Second, the contraposition between the Chamber of Deputies (which acted at the time as the representative body of intellectuals and ordinary people), which supported the protection and enhancement of all those cultural objects that had public utility on the one hand and, on the other, the Senate of the Republic (which acted at the time as place of greater representation for aristocratic and conservative families) which regularly rejected the approval of new legislative proposals limiting the rights of private individuals. (4)
At first, the prevalence of a liberal ideology, based on the inviolability of private property, blocked the introduction of significant constraints on the transportation and sale of privately owned cultural goods. (5) However, the situation changed with the approval of the Law n. 364 in 1909 (commonly called 'Rosadi-Rava Law', from the surnames of the Minister of Education at the time, Luigi Rava, and the proposer of the Law, Giovanni Rosadi). (6) Through a clear reference to the Roman law in force in the Papal State before the Italian unification, the Rosadi-Rava Law sanctioned the precedence of the national interest over the private one. (7)
Accordingly, a combined set of fundamental principles and restrictive legal measures were introduced to retain within the national borders the most valuable cultural goods. For example, those principles included the inalienability of public assets, the protection of all artefacts that had historical, archaeological or artistic interest, with the sole exception of works made by living authors or those whose production dates back less than 50 years, the possibility of applying a constraint regime on the exportation of cultural goods belonging to private individuals where the loss of these assets would cause serious damage to history, archaeology and art, and the State's pre-emption right over objects of "important interest". (8) By officially recognising the collective value and public utility of national cultural heritage, this Law specifically assigned to the State the role of protecting the cultural goods located within its national borders.
Since then, Italy has further strengthened its regime of protection and it enacted particularly restrictive rules over the exportation of cultural goods. However, the recent "Law on Competition" (Law n. 124, 4th August 2017), which officially entered into force on 29th August 2017, has introduced some important changes to the system regulating the definitive exportation of cultural property outside the Italian national borders. (9) This article aims to critically examine what this reform accomplishes and how it relates to EU Regulations on the export of cultural goods. Structurally, Part II compares the Italian legislation on the exportation of cultural goods before and after the enforcement of the Law on Competition. Part III analyses the main criticisms which have been levelled against the Law on Competition. Part IV explores the relation between the recent Law on Competition and the EU Regulations on the exportation of cultural property. The final Part offers some critical reflections over the impact of the Law on Competition on the protection of cultural property in Italy.
THE EXPORTATION OF CULTURAL PROPERTY IN ITALY: BEFORE AND AFTER THE ENFORCEMENT OF THE LAW ON COMPETITION
The legal framework governing the export of cultural goods from the Italian territory is based on two phases: first, a 'national phase' governed by Italian law through Articles 65-72 of the Code of Cultural Heritage and Landscape (henceforth, 'Code'); (10) and second, a 'communitarian phase' recognised by Articles 73 and 74 of the Code, concerning the export of cultural property outside the territory of the European Union. (11) This section focuses on the national phase, whose legal provisions have been amended by the Law on Competition.
But it is necessary to begin with a definition of cultural goods, before proceeding to analyse the Italian laws regulating the exportation of cultural goods. Article 10(1) of the Code defines cultural goods ('beni culturali') as all those immovable and movable objects, which possess artistic, historical, archaeological or ethno-anthropological interest, belonging to any public body/institution and to private non-profit associations.
Article 12(1) affirms that the immovable and movable objects indicated in the abovementioned Article, which are the work of deceased artists and which were produced more than 50 years ago, shall be subject to a verification of cultural interest by the competent organs of the Ministry.
Article 10(2) clarifies that cultural goods also include the collections of public museums, art galleries and other public exhibition venues as well as archives, single documents and book collections of libraries of the State, Regions and any other government bodies. Such property automatically becomes subject to protection as fundamental assets of the national cultural heritage (Article 13(2)).
Article 10(3) extends the definition of cultural goods to a series of assets, belonging to private parties, in respect of which the State has made a declaration of cultural interest in accordance with Article 13(1) of the Code. Those assets consist of immovable and movable objects of particular artistic, historical, archaeological or ethno-anthropological interest; archives and single documents of particular important historical interest; book collections of exceptional cultural interest; immovable or movable objects that are of particularly significant interest because of their reference to political or military history, history of literature, art, science, technology, industry and culture in general, or as testimony to the identity and history of public, collective or religious institutions; collections or series of objects that are of exceptional artistic or historical interest owing to tradition, renown and particular environmental characteristics.
However, Article 10(5) excludes from the notion of cultural goods those objects which are the work of living authors or were not produced more than 50 years ago.
Before the reform, the legal system regulating the permanent exportation of cultural goods outside the Italian borders was based on two fundamental principles (Article 65 of the...