The Queen (on the application of Kathleen Elizabeth Simonis) v Arts Council England
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Carr |
| Judgment Date | 23 July 2018 |
| Neutral Citation | [2018] EWHC 1822 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3601/2017 |
| Date | 23 July 2018 |
[2018] EWHC 1822 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Carr DBE
Case No: CO/3601/2017
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Mr Aidan O'Neill QC (Scot) QC and Mr Chris Buttler (instructed by Howard Kennedy LLP) for the Claimant
Mr Ben Jaffey QC and Mr Ravi Mehta (instructed by the Government Legal Department) for the Defendant
Hearing date: 28th June 2018
Judgment Approved
Introduction
The Claimant, Mrs Kathleen Simonis, is a resident of Italy and the owner of an oil painting on wood panel entitled “ Madonna con Bambino” (116 x 69 cm) (“the Painting”). Although originally (and at the time of the Claimant's purchase in 1990) understood to be a 19 th century imitation, the Painting is now attributed to Giotto di Bondone (“Giotto”) (or his school) (1266–1337). It is said to have a current estimated value of approximately £10million. It is considered by the Italian authorities to be of exceptional cultural and historical importance.
There has been a lengthy history of litigation in Italy regarding the Painting and its export and re-export to and from that country, some of which it is necessary to identify further below. In essence, the Claimant and the Ministero Dei Beni E Delle Attività Culturali e Del Turismo, the Italian Ministry of Cultural Heritage and Activities and Tourism (“the Italian Ministry”), have been in dispute 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 Painting last arrived in this country upon re-export by the Claimant to London from Italy on 14th February 2007, days after a judgment of the Tribunale Amministrativo Regionale di Lazio (“TAR”) on 9 th February 2007 (“the 2007 Order”). The 2007 Order annulled an Italian ministerial decree of October 2004 (“the October 2004 Decree”) replacing an earlier Italian ministerial decree of 10th March 2000 (“the 2000 Decree”) which, had it been valid, would have prevented export. On 11 th November 2008, however, the Consiglio di Stato, the highest Italian administrative court, reversed the 2007 Order (“the 2008 Order”), with the result that the October 2004 Decree remained valid. The Consiglio di Stato subsequently also refused an application by the Claimant for a review of that decision. The Painting is currently in storage in London.
On 8 th April 2015 the Claimant, through her London solicitors, applied to the Defendant, the Arts Council England (“the Council”), for a licence to re-export the Painting to Switzerland under Article 2 of EC Regulation 116/2009 (“Article 2”) (“the Regulation”), asserting an unfettered right to move the Painting outside the European Union (“EU”). That application was eventually refused by the Council on 8 th May 2017 (“the Decision”). The Council concluded that it was not the “ authority” “ competent” under EU law to issue an export licence to Switzerland in respect of the Painting. The “ competent authority” under EU law for the grant was the Italian authorities. The basis for the Decision was that the Painting had not been “ lawful[ly] and definitive[ly]” dispatched to the United Kingdom (“UK”) from Italy within the meaning of Article 2 (2)(b). The Council offered instead to issue an export licence for the return of the Painting to Italy.
The Claimant now seeks to challenge the Decision. She contends that it was wrong in law and seeks a declaration that the Painting was lawfully and definitively dispatched to the UK on 14 th February 2007. Her claim for a reference to the Court of Justice of the European Union (“the CJEU”) has fallen away, for reasons explained below.
It is important to note that the issue in this case is not therefore whether the Painting should be returned to Italy. This is not a claim by the Italian Ministry under the Return of Cultural Objects Regulations 1994 (as amended) (“the Return Regulations”). The question is rather which Member State ought to take the decision whether or not to grant permission for the Painting to be exported outside the EU, specifically whether or not the Council on the one hand or the Italian Ministry on the other should take that decision.
The motivation behind the Claimant's application to the Council for an export licence is said to lie in her grievance that the Italian authorities maintain that, notwithstanding its export to the UK, they have rights over the Painting. This, she contends, subjects it to a form of “ blight” which adversely impacts the Claimant's fundamental property rights to the full enjoyment and use of the Painting. She states that she wishes to lift the “blight” by exporting the Painting lawfully outside the customs territory of the EU, for which purpose she requires an export licence under the Regulation.
The Italian Ministry and the Secretary of State for Digital, Culture, Media and Sport (“the SoS for DCMS”) have been joined as Interested Parties. The Italian Ministry is the “ competent authority” in Italy; the SoS for DCMS is the Secretary of State responsible for export licensing under the EU law regime and who delegated responsibility to the Council for determining applications for export licences (pursuant to the Contracting Out (Functions in relation to Cultural Objects) Order 2005). She filed a brief acknowledgment of service in support of the Council's defence. The Italian Ministry participated in the formulation of questions put to the joint expert on Italian law, as set out below. Otherwise, neither Interested Party has played any direct part in the proceedings.
Relevant facts
The Claimant acquired the Painting at auction in Florence in May 1990 for 8million lire (circa £3,500). On 24 th March 1992 she was issued by the Italian authorities with a permanent export licence for the Painting (“the 1992 licence”), carrying the purchase price (of 8million lire) as the valuation and describing it as “ Panel Painting from the 1800s”. The 1992 licence was valid for one month from date of issue and could be used only once. It was used to export the Painting to the UK. On 22 nd April 1992 the Painting was re-imported into Italy with a temporary import licence valid for five years, carrying a valuation now of 10.75million lire (circa £4,700).
In 1992, an article was published by an art expert, Professor Filippo Todini, attributing the Painting to Giotto. In 1993 the Painting underwent restoration in Italy by Professor Umberto Ticci, revealing a medieval painted layer. Professor Ticci thought the Painting to be possibly of 13 th century origin and potentially attributable to Giotto. An article was published by an art expert, Professor Filippo Todini, attributing the Painting to Giotto. Other Italian art experts, however, contested the attribution, though not the possible dating.
On 8 th June 1993 the Claimant was granted another permanent export licence for the Painting (“the 1993 licence”).
In 1995 the Painting returned to Italy from Switzerland on a temporary import licence and then travelled to the United States of America (“the USA”) in 1998, with a now declared value of 700million lire.
In February 1999 the Painting returned to Italy from the USA. It was inspected on arrival by the Italian authorities. Dr Alia Englen and Dr Guilia Tamanti reported to the Export Office for Antiquities and Art Objects in writing on 19 th February 1999, proposing purchase of the Painting by the Italian Ministry. They adopted the attribution of the Painting to Giotto and described the Painting as being of “ extraordinary pictorial quality and in an excellent state of preservation” concluding:
“…the purchase of the painting is proposed as an extraordinary pictorial document of national interest. The acquisition in the collections of the National Gallery of ancient art from Rome in particular would add to the scarce representation of works of primary importance from this period within the museum; so much so that the painting constitutes a moment of fundamental importance of Roman figurative culture.”
On 23rd February 1999 the Italian authorities issued a certificate of temporary importation stated to be valid for five years, thus expiring on 23 rd February 2004, and non-renewable (“the 1999 licence”). It stated that it replaced a certificate of free movement across the EU during its period of validity. Thus the Painting could be removed from Italy to another EU country without further formality until February 2004.
By the 2000 Decree on 10 th March 2000, the 1993 licence and all other licences derivative from it, including the 1999 licence, were annulled because (in summary) the nature of the work of art had altered fundamentally as a result of the restoration – it “became another work of art”.
On 29 th January 2004 the Claimant sought an extension of the validity of the 1999 licence. The Council points to this as being significant: it demonstrates that the Claimant knew full well that the 1999 licence would expire later in 2004 absent extension. The application was refused on the basis that it was not capable of renewal.
The five year anniversary of the 1999 licence came and went on 23 rd February 2004.
On 10 th March 2004, on appeal by the Claimant, the TAR annulled the 2000 Decree on procedural grounds. On 13 th October 2004 a second Ministerial Decree, the October 2004 Decree, was issued to the same effect as the (by now annulled) 2000 Decree. The Claimant challenged this second Ministerial Decree and sought interim relief. Her application for...
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