# EUR-Lex - 52011DC0382 - EN

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# 52011DC0382

**REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE on the implementation of Council Regulation (EC) No 116/2009 of 18 December 2008 on the export of cultural goods1 January 2000 - 31 December 2010 /* COM/2011/0382 final */ **

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TABLE OF CONTENTS

1. Introduction 3

2. Developments between 1 January 2000 and 31 December 2010 4

2.1. Amendments to the legislation 4

2.2. Publication of information in the Official Journal 4

2.3. Committee meetings 5

2.4. International context 5

2.4.1. Ratification of the UNESCO and UNIDROIT Conventions 5

2.4.2. WCO/UNESCO Model Export Certificate 5

2.5. European context 5

3. Implementation of the Regulation between 1 January 2000 and 31 December 2010 6

3.1. Statistical data on implementation by Member States 6

3.1.1. Use of the standard export licence as laid down in Article 2(1) of the Implementing Regulation 6

3.1.2. Use of the specific open licence as laid down in Article 2 (2) of the Implementing Regulation 7

3.1.3. Use of the general open licence as laid down in article 2 (3) of the Implementing Regulation 7

3.1.4. Refusal of standard licences 7

3.1.5. Consignments found in non-compliance with the rules 7

3.2. Control strategy of the customs authorities 8

3.3. Limitation of competent customs offices 8

3.4. Administrative cooperation 8

3.5. Use of electronic systems 9

3.6. Suggestions from Member States 9

3.6.1. Amendments to the thresholds for certain categories of cultural goods 9

3.6.2. Tool to ensure quick information exchange 9

4. Conclusions 9

5. Annexes 11

5.1. Annex 1: Standard Export licences 12

5.2. Annex 2: Standard Export Licences 2003–2010 – evolution 14

5.3. Annex 3: Specific Open Licences 15

5.4. Annex 4: Persons/Organizations Holding Specific Open Licences 17

5.5. Annex 5: General Open Licences 18

5.6. Annex 6: Refused Export Licences 20

5.7. Annex 7: Non-compliant Consignments 22

INTRODUCTION

Council Regulation (EC) No 116/2009[1] of 18 December 2008 (Codified version), referred to hereafter as the 'Basic Regulation', lays down provisions to ensure that exports of cultural goods are subject to uniform controls at the Union's external borders. The categories of cultural objects covered by the Regulation are listed in its Annex I.

The export of cultural goods outside the Union's customs territory is subject to the presentation of an export licence. Such licence is issued by a competent authority of the Member State in whose territory the cultural object is lawfully located. For certain categories of cultural goods an export licence is only needed if the value of the object reaches the corresponding financial threshold set out in Annex I to the Regulation. Where necessary, the authority which is competent for issuing the export licence consults the competent authority of the Member State of provenance of the object concerned. Customs controls ensure that only those cultural goods that are accompanied by a valid export licence can leave the customs territory of the Union.

The provisions necessary for the implementation of the Basic Regulation are laid down in Commission Regulation (EEC) No 752/93[2] of 30 March 1993. This Implementing Regulation foresees three types of export licence: the standard licence, the specific open licence and the general open licence.

Article 10 of the Basic Regulation requires the Commission to regularly present a report on its implementation to the European Parliament, the Council and the European Economic and Social Committee. The first Commission report was submitted in 2000[3]. This report covers the period from 1 January 2000 to 31 December 2010, reflecting the situation in the Union as a whole before and after the two consecutive enlargements of 1 May 2004 and 1 January 2007.

The findings in this report are based on information provided by Member States' administrations in reply to a questionnaire sent out by the Commission that included data gathering on the use of licences for the years 2000 to 2010.

Developments between 1 January 2000 and 31 December 2010

Amendments to the legislation

The original Basic Regulation (Council Regulation (EEC) No 3911/92) was amended twice in the period under review, as follows:

- Council Regulation (EC) No 974/2001[4] provided for the necessary adaptations to take account of the introduction of the euro on 1 January 2002 and to clarify the meaning of the previously applicable financial threshold 'zero', which was thereby replaced with the expression 'whatever the value'.

- Council Regulation (EC) No 806/2003[5] adapted the actual wording of Article 8 to the provisions of Council Decision 1999/468/EC[6] on 'comitology'.

The original Basic Regulation was repealed and replaced by Council Regulation (EC) No 116/2009 as a result of a codification exercise. Codification brings together in a single new legal act all the provisions of the basic act and its subsequent amendments, deleting obsolete provisions and harmonizing the terminology used, thereby rendering legislation more accessible and transparent.

The Implementing Regulation (Commission Regulation (EEC) No 752/93) was amended once in the period under review. Commission Regulation (EC) No 656/2004[7] replaced the model standard export licence form in Annex I to render it consistent with the United Nations Layout Key for Trade Documents[8], adding explanatory notes to allow for it to be drawn up uniformly and correctly. It also introduced the possibility for Member States to produce the form by electronic means.

The Implementing Regulation should equally be subject to codification. The relevant procedure is currently ongoing.

Publication of information in the Official Journal

The most recent list of authorities empowered to issue export licences for cultural goods was published in July 2009[9] in accordance with Article 3(2) of the Basic Regulation.

The most recent list of customs offices empowered to handle formalities for the export of cultural goods was published in June 2009[10] in accordance with Article 5(2) of the Basic Regulation.

Committee meetings

The advisory Committee on the export and return of cultural goods met eight times in the period under review. This Committee also examines questions arising from the application of Council Directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State[11].

International context

Ratification of the UNESCO and UNIDROIT Conventions

Although the number of ratifications increased in the period under review, so far only 22 Member States have ratified the 1970 UNESCO Convention[12] and 12 have ratified the 1995 UNIDROIT[13] Convention.

WCO/UNESCO Model Export Certificate

In 2005, the WCO and UNESCO jointly developed the WCO-UNESCO Model Export Certificate for Cultural Objects in order to harmonize the diversity of existing export certificates worldwide to facilitate customs controls and make it possible to detect false documents. The proposed certificate is based on the European Union's model standard export licence form.

European context

The system introduced at EU level with regard to the export of cultural goods, which is the subject of this report, is complementary to other instruments and initiatives aiming at the protection of cultural property.

The Commission issued three reports on the application of Council Directive 93/7/EEC[14], in 2000, 2005 and 2009[15]. The last report concluded that a revision of the Directive should be considered. Accordingly, the Commission set up an ad hoc working group within the Committee on the export and return of cultural goods aimed at identifying problems in the application of the Directive and suggesting solutions. The working group has already completed its mandate and its conclusions will be presented to the Committee in 2011. Since the Annex to this Directive is identical to Annex I to the Basic Regulation, a decision to amend the Directive might have a direct impact on the Regulation.

A Working Group on Mobility of Collections was established by the Council in its Work Plan for Culture (2008-2010) within the context of the implementation of the European Agenda for Culture[16]. The Group presented its final report in June 2010[17]. Building on the work of this group and as part of the Work Plan for Culture 2011-2014[18], a new Working Group will examine the ways and means to simplify the process of lending and borrowing with a focus on State indemnity schemes.

The Council Conclusions of November 2008 underlined the need to prevent and combat illicit trafficking in cultural goods. In this context, the Commission has awarded a contract for a Study on preventing and fighting illicit trafficking in cultural goods, which should be concluded by the end of 2011.

Implementation of the Regulation between 1 January 2000 and 31 December 2010

Statistical data on implementation by Member States

Use of the standard export licence as laid down in Article 2(1) of the Implementing Regulation

A standard export licence is normally used for each export subject to the Basic Regulation. An overview of the number of standard export licences issued by Member States is included in Annex 1 .

Annex 2 shows the way the situation evolved in the period under review as regards the number of issued licences, from EU 15 (2003) to EU 27 (2010). It also shows which share of the total licences issued is accounted for by the different Member States. The figures reveal that the export of cultural goods from the European Union is concentrated in three Member States, first of all the UK with an average of 45% for the period 2000–2010, followed by Italy (roughly 26%) and France (roughly 15%).

Since the enlargement of 1 May 2004, only 1% of the total number of export licences was issued by the new Member States. Of these, 46% were accounted for by the Czech Republic, the only country that reported a significant number of licences issued.

The total number of standard export licences issued increased from 16 117 in 2000 to a maximum of 21 557 in 2007 (+ 34%), then decreasing to 18 176 in 2010. As the number of standard export licences issued in the new Member States is very low, the registered increase cannot be attributed to enlargement.

Use of the specific open licence as laid down in Article 2 (2) of the Implementing Regulation

A specific open licence covers the repeated temporary export of a specific cultural good by a particular person or organisation. An overview of the number of specific open licences that were in circulation in the Member States is included in Annex 3 .

The figures show that only seven Member States (Greece, France, Cyprus, Netherlands, Poland, Slovenia and the United Kingdom) have made use of this type of licence, Poland being clearly the biggest user.

Annex 4 shows the number of persons or organisations that were holding a specific open licence.

Use of the general open licence as laid down in article 2 (3) of the Implementing Regulation

A general open licence covers any temporary export of any of those cultural goods that form part of the permanent collection of a museum or other institution. An overview of the number of general open licences in circulation in the Member States is included in Annex 5 .

The figures show that only eight Member States (Bulgaria, Germany, Greece, France, Cyprus, Poland, Portugal and Slovenia) have made use of this type of licence.

Although specific and general open licences are used in a limited number of Member States, these Member States report that they are an important instrument for the management and control of the export of cultural goods.

Refusal of standard licences

An overview of the number of licence applications which were refused by the competent authorities of the Member States is included in Annex 6 .

The main reasons given to refuse licences were: i) the presentation of incomplete applications; ii) the object to be exported was found to be a national treasure in the Member State concerned.

The percentage of refused licences in the whole Union is very low, corresponding to 0.3% of all the licences issued.

Consignments found in non-compliance with the rules

Annex 7 shows the number of consignments found to be in non-compliance with the applicable rules. Member States reported a total of 473 cases for the 10–year period, a very low figure when compared to the total number of licences issued.

A few Member States indicated that non-compliant consignments were generally detected by their customs authorities. Depending on the case and on the applicable national legislation, follow-up was given by competent authorities or by public prosecutors. In some cases the situation could be settled by issuing export licences retroactively.

Control strategy of the customs authorities

A high number of Member States indicate that the p rotection of cultural goods is an important aspect of their policy and for that reason customs authorities are trained to detect the possible illicit export of cultural goods.

Member States report that their customs services use risk management for the selection of consignments for controls on export. They indicate that they apply increased control rates to 'high risk' consignments.

Some Member States indicated that they particularly focus on travellers.

Limitation of competent customs offices

Article 5(1) of the Basic Regulation gives Member States the possibility to restrict the number of customs offices empowered to handle formalities for the export of cultural goods.

Nine Member States (Bulgaria, Greece, Spain, Cyprus, Luxemburg, Hungary, Malta, Portugal and the United Kingdom) have made use of this possibility. It is generally considered to allow more effective controls, as well as better cooperation with museums and other scientific institutions close to the designated customs offices.

Administrative cooperation

Most Member States report good cooperation between the different authorities involved (licensing authorities, customs, police) at national level. This cooperation relies on regular meetings as well as joint training activities. In some Member States cooperation is organised on the basis of memoranda of understanding or similar arrangements established between the authorities concerned.

Italy reported that the licensing authorities are directly connected with the Comando Carabinieri Tutela Patrimonio Culturale, a specialised police unit for cultural goods.

Some Member States reported an insufficient level of cooperation at EU level. Guidelines for administrative cooperation were agreed in 2003 as a result of work carried out within the Committee on the export and return of cultural goods. It has however proved difficult to keep this working tool updated.

At international level there is cooperation involving bodies such as EUROPOL and INTERPOL.

Use of electronic systems

Applying for an export licence using electronic forms is still not possible in the large majority of Member States. Even in those cases where electronic forms are available, the actual application must be submitted on paper.

Some Member States indicated that they are developing electronic systems to allow both the lodging of applications and the issuing of export licences for cultural goods.

Suggestions from Member States

Amendments to the thresholds for certain categories of cultural goods

Article 10 of the Basic Regulation provides for the possibility to update the financial thresholds indicated in Annex I, on the basis of economic and monetary indicators.

Discussions in the Committee on the export and return of cultural goods have shown that there is no majority of Member States in favour of changes to the existing thresholds and the Commission does therefore not envisage submitting a proposal for an update.

Tool to ensure quick information exchange

A number of Member States expressed the view that exchange of information between Member States and the Commission could be enhanced and that up to date contact details should be accessible via a web-based tool.

In reply to these suggestions the Commission decided to create a specific Interest Group on the export of cultural goods within CIRCA. This is an extranet tool tuned towards Public Administrations' needs, providing a private space on the Internet for sharing information and documents, as well as other functionalities.

Within this space a section was created containing contact information of national authorities. It has however proved difficult to keep this information updated.

CONCLUSIONS

Member States report no major problems in the daily implementation of the provisions of the Basic Regulation and of its Implementing Regulation. It appears that the system introduced in 1993 for the control of the export of cultural goods at the Union's external borders has actually been used by the vast majority of Member States, even if to very different degrees.

The functioning of the system could be improved by developing mechanisms for closer cooperation between Member States and with the Commission.

The Commission will follow developments in the context of other initiatives at EU and international level which might have a bearing on the subject of this report. It will pay a particular attention to the conclusions of the Study on illicit trafficking referred to under paragraph 2.5. Where the need for further improvements to the system is identified as a result of these initiatives, the Commission will be ready to address the issue.

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The Commission invites the European Parliament, the Council and the European Economic and Social Committee to take note of this report.

ANNEXES

Annex 1: Standard Export licences[19]

Year |

| 2000 |2001 |2002 |2003 |2004 |2005 |2006 |2007 |2008 |2009 |2010 | | BE | 0 |0 |0 |0 |0 |0 |0 |0 |0 |n/a |n/a | | BG | | | | | | | |21 |5 |0 |0 | | CZ | | | | |0 |0 |0 |0 |61 |2 |53 | | DK | 0 |0 |0 |0 |0 |0 |0 |1 |1 |n/a |n/a | | DE | 0 |0 |0 |0 |0 |0 |0 |0 |0 |0 |0 | | EE | | | | |0 |0 |0 |0 |0 |0 |0 | | IE | 0 |0 |0 |0 |0 |0 |0 |0 |0 |0 |0 | | EL | 0 |0 |0 |1 |2 |0 |0 |0 |0 |0 |0 | | ES | 0 |0 |0 |1 |1 |0 |0 |0 |0 |n/a |n/a | | FR | 17 |18 |17 |18 |6 |12 |12 |7 |22 |28 |18 | | IT | 0 |0 |0 |0 |0 |0 |0 |0 |0 |0 |0 | | CY | | | | |0 |0 |0 |0 |0 |0 |0 | | LV | | | | |0 |0 |0 |0 |0 |0 |0 | | LT | | | | |0 |0 |0 |0 |0 |0 |0 | | LU | 0 |0 |0 |0 |0 |0 |0 |0 |0 |n/a |n/a | | HU | | | | |0 |0 |0 |0 |0 |n/a |n/a | | MT | | | | |0 |0 |0 |0 |0 |0 |0 | | NL | 0 |0 |0 |0 |0 |1 |0 |0 |0 |0 |3 | | AT | 0 |0 |0 |0 |0 |1 |1 |0 |0 |1 |1 | | PL | | | | |79 |0 |0 |0 |0 |0 |0 | | PT | 0 |1 |0 |0 |0 |0 |0 |0 |0 |0 |0 | | RO | | | | | | | |0 |0 |0 |0 | | SI | | | | |0 |0 |0 |0 |0 |n/a |n/a | | SK | | | | |0 |0 |0 |0 |0 |0 |0 | | FI | 0 |0 |0 |0 |7 |6 |2 |0 |1 |0 |1 | | SE | 0 |0 |0 |0 |0 |0 |0 |2 |1 |0 |3 | | UK | 9 |9 |3 |1 |2 |3 |0 |6 |0 |2 |3 | | | | | | | | | | | | | | | Total |26 |28 |20 |21 |97 |23 |15 |37 |91 |33 |82 | |

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[1] Council Regulation (EC) No 116/2009, of 18 December 2008, on the export of cultural goods (Codified version) (OJ L 39, 10.2.2009, p. 1). This Regulation replaced Council Regulation (EEC) No 3911/92 of 9 December 1992, on the export of cultural goods (OJ L 395, 31.12.1992, p. 1), which had been in application since 30 March 1993.

[2] Commission Regulation (EEC) No 752/93, of 30 March 1993, laying down provisions for the implementation of Council Regulation (EEC) No 3911/92 on the export of cultural goods (OJ L 77, 31.3.1993, p. 24).

[3] Report from the Commission to the Council, the European Parliament and the Economic and Social Committee on the implementation of Council Regulation (EEC) n° 3911/92 on the export of cultural goods and Council Directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State (COM(2000)325 of 25.5.2000).

[4] Council Regulation (EC) No 974/2001, of 14 May 2001, amending Regulation (EEC) No 3911/92 on the export of cultural goods (OJ L 137, 19.5.2001, p. 10).

[5] Council Regulation (EC) No 806/2003, of 14 April 2003, adapting to Decision 1999/468/EC the provisions relating to committees which assist the Commission in the exercise of its implementing powers laid down in Council instruments adopted in accordance with the consultation procedure (qualified majority) (OJ L 122, 16.5.2003, p. 1).

[6] Council Decision 1999/468/EC, of 28 June 1999, laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ L184, 17.7.1999, p. 23).

[7] Commission Regulation (EC) No 656/2004, of 7 April 2004, amending Regulation (EEC) No 752/93 laying down provisions for the implementation of Council Regulation (EEC) No 3911/92 on the export of cultural goods (OJ L 104, 8.4.2004, p. 50).

[8] United Nations Layout Key for Trade Documents, New York and Geneva, 2002 (ECE/TRADE/270).

[9] OJ C 164, 16.7.2009, p. 6.

[10] OJ C 134, 13.6.2009, p. 9.

[11] Council Directive 93/7/EEC, of 15 March 1993, on the return of cultural objects unlawfully removed from the territory of a Member State (OJ L 74, 27.3.1993, p. 74).

[12] UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Paris, 14 November 1970; ratified by the following Member States: Belgium, Bulgaria, Czech Republic, Denmark, Germany, Estonia, Greece, Spain, France, Italy, Cyprus, Lithuania, Hungary, Netherlands, Poland, Portugal, Romania, Slovenia, Slovakia, Finland, Sweden, United Kingdom.

[13] UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, Rome, 24 June 1995; ratified by the following Member States: Denmark, Greece, Spain, Italy, Cyprus, Lithuania, Hungary, Portugal, Romania, Slovenia, Slovakia, Finland.

[14] See note 11 above.

[15] COM(2000)325 of 25.5.2000 (see note 3 above), COM(2005)675 of 21.12.2005 and COM(2009)408 of 30.7.2009.

[16] Resolution of the Council of 16 November 2007 on a European Agenda for Culture (OJ C 287, 29.11.2007, p. 1).

[17] Final report and recommendations to the Cultural Affairs Committee on improving the means of increasing the mobility of collections, OMC Expert Working Group on the Mobility of Collections, June 2010.

[18] Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on the Work Plan for Culture 2011-2014 (OJ C 325, 2.12.2010, p. 1).

[19] Minor differences in these figures may occur for Member States which reported their statistics by category, as one licence could include more than one category.