EUROPEAN COMMISSION Brussels, 26.9.2019 COM(2019) 429 final 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 December 2008 on the export of cultural goods



1 January 2014 - 31 December 2017



Table of Contents 1. Executive Summary 2. Introduction 3. Context of the Regulation 3.1 European context 3.2 International context 4. Implementation of the Regulation 4.1 Objectives and Performance 4.2 Definition of cultural goods 4.3 Age and financial thresholds 4.4 Standard export licence figures 4.5 Specific and general open licences 4.6 Exemption from export licence requirement 4.7 Reasons for rejecting a licence application 4.8 Licence form issues 4.9 Cancellation or revocation of licences 4.10 Use of electronic systems 4.11 Penalties and other measures 4.12 Cooperation between authorities

4.13 Material and human resources 5. Conclusions and outstanding issues 6. ANNEXES Table 1. Standard Licences issued by Member States * Table 2. Specific Open Licences in circulation Table 3. General Open Licences in circulation Table 4. Applications for Standard Licences refused Table 5. Non-compliant consignments detected Table 6. Standard licences issued by Member States, versus Standard licences refused & Non-compliant consignments detected



1.Executive Summary This report reviews the implementation of the export licencing system for cultural goods established by Regulation (EC) No 116/2009 on the export of cultural goods and Commission Implementing Regulation (EU) No 1081/2012. The report is based on data provided by the Member States in response to a questionnaire covering all aspects of implementation of the export licencing system. It covers the period from 2014 to 2017. The figures reported in the annex relate to three types of export licences: standard licences, specific open licences (repeated temporary exports by private persons) and general open licences (repeated temporary exports by museums and similar institutions). The report also provides information on current initiatives and challenges for the future, such as improving the cooperation between Member States authorities involved in the implementation of the Regulation, promoting a common understanding of the Regulation’s provisions by the Member States, identifying best practices for competent authorities and customs in investigating the provenance of cultural goods, and exploring the technical, financial and legal possibilities to use electronic means for the issue and control of export licences, such as the development or link to a centralised electronic system which would interface with national customs clearance systems.



2.Introduction Council Regulation (EC) No 116/2009 on the export of cultural goods ('the Regulation') subjects the export of certain cultural goods outside the European Union's ('EU') customs territory to the presentation of an export licence and ensures that exports of those goods undergo uniform controls at the Union's external borders. Annex I defines the material scope of the Regulation by listing the categories of cultural goods to which it applies, as well as by setting minimum age and/or value requirements for the majority of the categories listed.

Export licences are issued by the competent authority of the last Member State in the territory of which the cultural object was definitively and lawfully located. Customs controls then ensure that cultural goods can only leave the EU's customs territory if they are accompanied by a valid export licence. In order to ensure that the export licences provided for in the Regulation are uniform, it was necessary to lay down rules governing the drawing up, issuing and use of the licence form. The Implementing Regulation (EU) No 1081/2012 provides for three types of export licences (standard licence, specific open licence and general open licence) and sets out the rules for their application. Certain Member States’ national law may impose further restrictions, including the requirement to obtain a licence, for the movement of objects designated as national treasures. The updated lists of authorities empowered to issue export licences are published in the Official Journal, as well as the list of customs offices empowered to handle export formalities . The objective of the Regulation is to reconcile the fundamental principle of free movement of goods with that of the protection of national treasures within the historical framework of the creation of the internal market which abolished all internal borders between Member States. In accordance with Article 10 of the Regulation, the Commission is required periodically to present a report on the implementation of the Regulation to the European Parliament, the Council and the European Economic and Social Committee. The present report draws on information, including statistical data on the use of licences, provided by Member States in response to a questionnaire covering all aspects of implementation of the export licencing system, and on discussions at the Expert Group of customs issues related to cultural goods. 3.Context of the Regulation 3.1 European context The system introduced at EU level by the Regulation is complementary to other instruments and initiatives aiming at the protection of cultural property. The most relevant of those is Directive 2014/60/EU on the return of cultural objects unlawfully removed from the territory of a Member State . The Directive allows the return of any cultural object identified by a Member State as a national treasure possessing artistic, historic or archaeological value. For this purpose, the central authorities in charge of the Directive in Member States are required to cooperate and exchange information on unlawfully removed cultural objects by making use of the Internal Market Information System (IMI). Another important complement to the Regulation is the recently adopted European Parliament and Council Regulation (EU) No 2019/880 on the introduction and the import of cultural goods . This new instrument lays down the rules and conditions for the temporary or permanent import in the Union of cultural goods which were created or discovered in third countries, as well as for shipments of such goods in transit. Due to its external trade dimension, the typology of Regulation (EU) No 2019/880 was primarily inspired by the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property . Lastly, two related ad hoc Union measures, Council Regulation (EC) No 1210/2003 and Council Regulation (EU) No 36/2012 , prohibit trade in cultural goods with Iraq and Syria. 3.2 International context At international level the most relevant instrument with regard to the export of cultural goods is the 1970 UNESCO Convention. To date, the Convention numbers 140 States Parties and has been ratified by 26 Member States. 4.Implementation of the Regulation 4.1 Objectives and Performance The Regulation lays down uniform rules for the control of cultural goods before their export from the Union's customs territory in order, on the one hand, to maintain free movement within the internal market, and on the other, to protect the national treasures of the Member States. Overall, Member States consider that the Regulation has achieved these objectives. However, areas for improvement have also been identified. In particular regarding the fight against the illicit trade in cultural goods, the Regulation has performed quite well. Most Member States consider its licencing system a very important instrument to ensure the legality of trade with third countries, especially when it comes to cultural goods which require an export licence regardless of their value (e.g. archaeological objects, parts of monuments, etc.), whereas for other categories of cultural goods there have been cases where the object was deliberately undervalued to be exported without licence. Member States point out that more information regarding each other’s national heritage legislation would help the competent authorities in charge of issuing licences to fight illicit trade more effectively. Regarding the efficacy of customs controls, those can always be improved by consecrating more human and material resources at the external borders and by identifying and adopting best practices. A Project Group was created in 2017 with the aim to examine the Member States working methods used for the purpose of investigating the provenance of cultural goods, both by competent authorities (when receiving licence applications) and by customs (when examining shipments or verifying export licences), and in order to identify best practices and develop practical advice for issuing licences and customs controls. Other means identified by Member States to improve the overall performance of the Regulation include guidance for understanding the terms 'definitively and lawfully located' that determine the Member State which is competent to issue the export licence. This would prevent unscrupulous operators from temporarily moving a cultural good to a different Member State only for the purposes of applying for a licence in a Member State other than the one which designates and protects the object as a national treasure.

4.2 Definition of cultural goods The Regulation does not define what is a cultural good. Instead, it lists 15 categories of goods in its Annex I, which are those falling within its scope. Most of categories listed are accompanied by minimum age and value limits, below which the cultural goods do not need an export licence. It is generally considered as the product of a compromise based on the categories listed in Article 1 of the 1970 UNESCO Convention with the addition of age and value thresholds. In general, it is considered that Annex I provides an adequate framework. With regard to understanding the exact scope of the categories listed in Annex I, particular difficulties with uniform reading by Member States have been identified with certain types of cultural goods such as coins; the coverage of collections of items as opposed to single specimens in category 13.b, the classification of liturgical icons as paintings or as parts of monuments , as well as differing opinions among Member States on whether the listing of certain types of goods in category 15.a is exhaustive or indicative. A subgroup created by the Committee of Article 8 of the Regulation was tasked in 2013 with compiling the prevailing opinions on how to read the different categories of cultural goods and has identified the main differences between Member States on the above issues. It should be also noted that, in particular with regard to the classification of liturgical icons, the clarifications brought by the new Regulation (EU) No 2019/880 on the import of cultural goods are expected to settle the matter (liturgical icons and statues are parts of religious monuments). 4.3 Age and financial thresholds The age thresholds set by the Regulation for certain categories of cultural goods are generally considered adequate. Possible improvement of these provisions in the future may concern clarifying the age threshold for means of transport, increasing some minimum thresholds from 50 to 70 years and setting a minimum age limit for the category of collections to avoid unnecessary controls of vast numbers of contemporary articles by customs. The financial thresholds are considered rather high by the majority of the Member States, while a minority of 3 Member States consider that they should be further raised. The value stated in the export licence application is most often the transaction value appearing on the invoice - in the case of exports by private persons, whereas for temporary exports by museums for exhibition abroad the value required to be stated is that of the insurance policy. While some applicants appear reticent to state a value and some others are not able to give an estimate, for standard export licences, most Member States systematically refer to the customs value that is stated in the customs declaration at export. The majority of the respondent Member States consider that, if possible, it would be useful to develop a uniform approach with regard to the valuation of cultural goods. 4.4 Standard export licence figures The number of standard licences issued by Member States during the period 2014 to 2017 was 70,433 (see also Table 1 in annex for yearly data). Standard licences by Member State 2014-2017 In descending order, the main categories for which licence applications were received during the reporting period were: archaeological goods (mostly for exhibitions); incunabula, manuscripts and maps; various antiques of category 15 such as jewellery, musical instruments, furniture, clocks, arms, toys, carpets, etc. (mostly for definitive export); followed by paintings, mosaics, watercolours, gouaches and sculptures. 4.5 Specific and general open licences Specific open licences may be issued for a specific cultural good temporarily exported on a regular basis by a private person (Art. 10 of the Implementing Regulation). During the period 2014-2017, the number of specific open licences issued was 1,428 (see also Table 2 in annex for yearly data). A significant number of Member States report that they do not provide for the issue of such licences. The Member States which issue specific open licences do so mostly for musical instruments exported for artistic performances or for antique means of transport exported for exhibitions. Apart from two Member States, all the others have issued relatively low numbers of such licences within the reporting period. Specific Open Licences in circulation by Member State 2014 – 2017

The maximum period of validity of specific open licences is set by the Implementing Regulation at five years. The majority of the Member States who issue such licences apply that limit; however, some exceptions exist where the maximum length of validity is either unspecified or shorter (1- 3 years). General open licences (Art. 13 of the Implementing Regulation) allow for the temporary export on a regular basis of cultural goods by museums and similar institutions. During the period 2014-2017 the number of general open licences issued was 1,501 (see also Table 3 in annex for yearly data). The maximum period of validity of such licences is also set at five years. The majority of the Member States who issue such licences apply a shorter limit. The length generally depends on the insurance coverage or the needs for the loan or exhibition.



General Open Licences in circulation by Member State 2014-2017 4.6 Exemption from export licence requirement Only one of the respondent Member States reported that they have made use of the possibility not to require an export licence, as provided for in Article 2(2), for items which are considered of limited archaeological or scientific interest. The main argument for making use of the possibility is that archaeological objects which are not the direct product of excavations are deemed to have limited scientific value because of their separation from their archaeo-historical context. 4.7 Reasons for rejecting a licence application Only few Member States have refused to issue an export licence because the cultural goods in question were covered by national legislation protecting national treasures of artistic, historical or archaeological value in accordance with subparagraph 3 of Article 2(2). In most cases, an export licence application is rejected or withdrawn by the applicant for other reasons such as: insufficient proof of licit provenance; non-compliance with the applicable rules; the object is a fake; or the issue of which Member State is competent to issue the licence has not been resolved. Cases where the applicant refuses to provide further information on provenance when requested and then immediately withdraws their application are rare. When that happens, the majority of Member States reject the application, inform the applicant and, if there is suspicion of illicit provenance, they also inform the appropriate law enforcement authorities about the case.

4.8 Licence form issues The following issues have been identified with regard to the use of licence forms: The inclusion of photographs in the licence application is a very important element, as it allows to identify the object by customs when controlling the export licence. The vast majority of the Member States require photographs when it comes to definitive exports. Some exceptions are made by certain Member States in cases of temporary exportation of collections or for particularly bulky archaeological objects of low value or books which have no particular identifiable markings. The Implementing Regulation provides in its Article 5 that Sheet N° 3 of the export licence form should be returned to the issuing competent authority to confirm that the export has indeed taken place and that the licence was used, but this is done only in 20% of the cases. In the absence of a central electronic registering system, it is quite difficult to check whether Sheet N° 3 has been returned, especially if the goods have exited the Union's territory via a different Member State. Some Member States report that they are examining ways to improve these controls. It should be noted that the new regulation on the import of cultural goods provides for the creation of a centralised electronic system to manage the documentary requirements. The system could be designed in a manner that would permit to cover also the needs of the export licencing scheme, including the verification that the export took place. 4.9 Cancellation or revocation of licences About half of the Member States have legislation providing for the revocation or cancellation of licences after they have been issued, either by specific provisions related to cultural goods or through general administrative law which calls for the revocation of an administrative act when it is based on misleading or false information. However, only one Member State has revoked licences (three) during the reporting period. Licences can be cancelled by the applicant after they have been issued. In such cases, most Member States require the return of the licence to be registered as cancelled. A significant number of Member States report that when the licence is not used within its validity period, the competent authority is not always been made aware of it because in most cases they do not get back Sheet N° 3 of the form (see point 3.8 above).

4.10 Use of electronic systems Export licences are issued electronically only in one Member State. In several more Member States the application can be filled in and submitted electronically (e.g. by filling in an active .pdf file online) but its signing and then the issue of the export licence itself is still done on paper. The use of a paper-based system is primarily due to the constraints and requirements set by the implementing Regulation for the prevention of forgery. Some of the Member States would like and have made plans to develop a system to issue licences electronically. In particular, three Member States have explored the possibility to create a joint system and examined issues of data protection and confidentiality of national authorisations. 17 Member States stated that they would consider it useful to develop a common electronic database or online service at EU level for issuing export licences. 3 Member States would be against it because they prefer to continue using their own databases (which cover both national and Union export licences) or because they believe that differences in interpretation of the provisions would hamper the system, while 2 Member States have not expressed a position on the matter. In any case, the change to an electronic system would require an amendment of the Implementing Regulation provisions which impose the issue of licences on paper. 4.11 Penalties and other measures Member States are required by the Regulation to adopt rules on effective, proportionate and dissuasive penalties applicable to infringements of its provisions. In the majority of cases these penalties are both administrative and penal and may consist in the imposition of fines and imprisonment terms (of maximum 2.5 years on average). In addition to these measures, some Member States have also adopted other measures such as confiscation of the cultural goods; measures regarding the import of cultural goods from third countries and cultural goods traded by terrorist or warring factions; requirement for art dealers to keep inventories and registers of transactions; and fines for failing to notify the return of a cultural good exported under a temporary licence. 4.12 Cooperation between authorities In all Member States, customs is the authority primarily responsible for the control of the existence and conformity of export licences at the border. In carrying out these tasks, customs are in some cases assisted by the police and/or other border security or internal revenue services. Although the Regulation does not provide for specific administrative cooperation procedures, exchanges between authorities in charge of implementing the Regulation have been identified as a necessary means to improve its performance, especially in cases where a Member State other than the one to whose cultural heritage the object belongs is called to issue an export licence. Co-operation between competent authorities of different Member States is not frequent. Few of them contact their counterparts in another Member State to request information on national legislation, to check if an item is designated as a national treasure, to find out more about its provenance or to verify certification documents issued there. Most of the Member States competent authorities had no contacts with their counterparts in other Member States during the reporting period, while a few have had 5-20 contacts. The authority responsible for issuing export licences, i.e. the ‘competent authority’, is in the majority of – but not all - cases the national Ministry of Culture. About a fourth of the respondent Member States have entrusted this task to more than one services specialised in the protection of national heritage, sometimes depending on the category to which the cultural good belongs, e.g. archaeological objects; historical archives, etc. In two Member States with a federal structure these services are decentralised. A few Member States also involve other public entities with relevant expertise in the issue of export licences such as the national library, the national museum or their department of environment. With regard to the cooperation between customs and competent authorities within the same Member State, most Member States confirm that their national authorities involved in the implementation of the Regulation are co-operating in a sufficient and effective manner, although seven of them believe that there is still room for improvement. A significant number of Member States reported that they have taken steps aimed at improving such cooperation among national authorities, such as signing memoranda of understanding, organising regular joint meetings or drafting joint reference guides or national procedural guidelines which can or have been used also in training sessions for the officials of the national agencies/authorities concerned. With regard to co-operation with other national services or bodies, about half of the Member States have written cooperation agreements with the national police, other law enforcement agencies, prosecutors, etc. Some Member States customs or competent authorities have established co-operation also with authorities in third countries or with international organisations and bodies which are active in the field of fighting illicit trade in cultural goods such as Interpol, the World Customs Organisation (WCO), Europol, etc. 16 Member States’ customs have organised and/or participated in joint targeted actions against illicit trade with other authorities or organisations, such as the operation Pandora I (conducted in November 2016) and Pandora II (conducted in November 2017) in co-operation with Interpol, Europol, UNESCO and the WCO and joint operations Colosseum and Odysseus in co-operation with the WCO Regional Intelligence Liaison Office for Western Europe, Interpol, the European Anti-Fraud Office (OLAF), the European Commission’s Taxation and Customs Union Directorate-General (TAXUD), the International Council of Museums, the Italian Ministry of Cultural Heritage and the Italian ‘Guardia di Finanza’. When customs detect a suspect consignment, they usually follow it up by detaining the item and contacting the competent authority who, in most cases, investigates the possible breach of law together with the police and the prosecutor. If it is affirmed that the cultural good cannot be exported, they seize it (in some cases this decision is taken by the Member State's competent authority). 4.13 Material and human resources The needs in personnel and resources for the implementation of the Regulation have remained stable in the majority of the Member States during the reporting period. In a few Member States slightly more experts in cultural matters are needed for the issue of export licences – although it is sometimes difficult to assess if the increased need is due to applications for Union or for national export licences - while two of the reporting Member States consider their services as chronically understaffed. 5.Conclusions and outstanding issues Based on the feedback received from Member States for the reporting period 2014-2017, the Regulation seems to be performing well in terms of achieving its objectives and is perceived as an important legal instrument for protecting the Member States cultural heritage.

Co-operation between the authorities in charge of applying the Regulation across the Union is identified as a possible aspect where implementation can be improved. Possible actions that Member States could undertake to that effect include organising training sessions, exchanges of information, participation in joint operations and assistance in identifying the provenance and legal status of cultural goods. Responding to the call by Member States to develop a set of best practices (See Section 6.3 of the previous report on the implementation of Regulation (EC) No 116/2009 ), a Project Group was created under the Customs 2020 programme, whose objective is to study the current implementation in the Member States and identify best practices in controlling cultural goods, both at competent authority level (control of provenance for the issue of licences) and at customs level (control of shipments at export and verification of export licences). With regard to promoting the uniform understanding of the categories in the Annex I to the Regulation discussions are ongoing at Expert Group level. The adoption of Regulation (EU) No 2019/880 is considered as a positive development, as the clarifications it contains regarding the classification of liturgical icons as parts of monuments will provide the necessary legal certainty. Finally, Member States confirm more than ever the need to move from a system of paper export licences to an electronic, paperless system. In their opinion, such a move will facilitate the issue and control of export licences, will allow better monitoring of their use and will promote better co-operation between the Member States administrations in charge of implementing the Regulation. Regulation (EU) No 2019/880 on the introduction and the import of cultural goods provides for the development of such a centralised electronic system to deal with the issue of import licences and the submission of importer statements to customs. Its development should take into consideration the possibility to cover also the management of export licences.



6.ANNEXES Table 1. Standard Licences issued by Member States * Year 2014-2017 Share of total

in % 2014 2015 2016 2017 BE 410 389 355 346 1500 2,13% BG 0 3 8 3 14 0,02% CZ 24 7 80 101 212 0,30% DK (3) DE 1201 1311 1332 1161 5005 7,11% EE 0 0 2 4 6 0,01% IE 14 18 6 7 45 0,06% EL 1 2 2 2 7 0,01% ES 731 834 822 779 3166 4,50% FR 3102 2925 2968 8995 12,77% HR 17 20 16 24 77 0,11% IT (1) 566 635 559 1760 2,50% CY 3 3 2 3 11 0,02% LV 0 0 2 1 3 0,00% LT 0 9 0 9 0,01% LU 2 11 7 2 22 0,03% HU 6 28 55 30 119 0,17% MT 23 26 20 33 102 0,14% NL 214 317 314 398 1243 1,76% AT 525 543 808 690 2566 3,64% PL 121 81 81 8 291 0,41% PT (2) 229 230 280 358 1097 1,56% RO (3) SI 5 3 4 8 20 0,03% SK 1 2 1 4 0,01% FI 0 10 6 3 19 0,03% SE 265 99 226 137 727 1,03% UK 12642 11553 10746 8472 43413 61,64% Total 20102 19059 18702 12570 70433 100,00% (*) One licence might cover several cultural objects; figures refer to both definitive and temporary. (1) 2014: 242 def. 324 temp. 2015: 364 def. 271 temp. 2016: 307 def. 252 temp. (2) 2014: 3 substituted; 2015: 4 canceled (3) No statistical data provided



Table 2. Specific Open Licences in circulation Year 2014-2017 Share of total

in % 2014 2015 2016 2017 BE 0 0 0 0 0 0,00% BG 0 0 0 0 0 0,00% CZ 0 0 0 0 0 0,00% DK (1) 0 0,00% DE 0 0 2 109 111 7,77% EE 0 0 0 0 0 0,00% IE 0 0 0 0 0 0,00% EL 0 0 0 0 0 0,00% ES 0 0 0 0 0 0,00% FR 12 5 1 18 1,26% HR 0 0 0 0 0 0,00% IT 0 0 0 0 0,00% CY 0 0 0 0 0 0,00% LV 0 0 0 0 0 0,00% LT 0 0 0 0 0 0,00% LU 0 0 0 0 0 0,00% HU 0 0 0 0 0 0,00% MT 0 0 0 0 0 0,00% NL 70 167 189 212 638 44,68% AT 0 0 0 0 0 0,00% PL 12 6 7 4 29 2,03% PT 0 0 0 0 0 0,00% RO (1) 0 0,00% SI 1 0 1 1 3 0,21% SK 0 0 0 0 0,00% FI 0 0 0 0 0 0,00% SE 0 0 0 0 0 0,00% UK 67 238 141 183 629 44,05% Total 162 416 341 509 1428 100,00% (1) No statistical data provided



Table 3. General Open Licences in circulation Year 214-217 Share of total

in % 2014 2015 2016 2017 BE 0 0 0 0 0 0,00% BG 1 5 0 3 9 0,60% CZ 0 0 0 0 0 0,00% DK (1) 0 0,00% DE 0 0 145 244 389 25,92% EE 0 0 0 0 0 0,00% IE 0 0 0 0 0 0,00% EL 6 4 3 4 17 1,13% ES 177 199 226 201 803 53,50% FR 0 0 0 0 0 0,00% HR 1 0 1 3 5 0,33% IT 0 0 0 0 0,00% CY 1 1 0 0 2 0,13% LV 0 0 0 4 4 0,27% LT 0 0 0 0 0 0,00% LU 0 0 0 0 0 0,00% HU 0 0 0 0 0 0,00% MT 0 0 0 0 0 0,00% NL 0 0 0 0 0 0,00% AT 0 0 0 0 0 0,00% PL 29 29 36 30 124 8,26% PT 0 0 0 0 0 0,00% RO (1) 0 0,00% SI 21 40 40 40 141 9,39% SK 0 0 0 0 0,00% FI 0 0 0 0 0 0,00% SE 0 0 0 7 7 0,47% UK 0 0 0 0 0 0,00% Total 236 278 451 536 1501 100,00% (1) No statistical data provided