COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a Regulation of the European Parliament and of the Council on the import of cultural goods
Date: 2017-07-13
Institutions: Directorate-General for Taxation and Customs Union, European Commission
Subjects: EU customs procedure, art trade, cultural object, fight against crime, illicit trade, import (EU), import licence, surveillance concerning imports, terrorism, third country

EUROPEAN 
COMMISSION 

Brussels, 13.7.2017  
SWD(2017) 262 final 

COMMISSION STAFF WORKING DOCUMENT 

IMPACT ASSESSMENT 

Accompanying the document 

Proposal for a Regulation of the European Parliament and of the Council 

on the import of cultural goods 

{COM(2017) 375 final} 
{SWD(2017) 263 final} 

EN 

   EN 

 
 
 
 
  
 
 
 
 
Table of Contents 
1. INTRODUCTION ...................................................................................................................... 5 
2. EXISTING REGULATORY AND OPERATIONAL FRAMEWORK ................................................... 6 
2.1 International instruments and initiatives ......................................................................... 6 
2.2 National legislation in the EU Member States ................................................................. 7 
2.3 Third country legislation regarding the import of cultural goods .................................... 7 
2.3.1 USA ............................................................................................................................ 7 
2.3.2 Switzerland ................................................................................................................ 8 
2.4 Ad hoc EU trade prohibitions: EU Regulations on Iraq and Syria ..................................... 8 
3. THE PROBLEM ......................................................................................................................... 9 
Problem tree .......................................................................................................................... 9 
3.1 Problem definition .......................................................................................................... 10 
3.1.1 The licit market and trade ....................................................................................... 10 
3.1.2 What is trafficking or illicit trade in cultural goods? ............................................... 11 
3.1.3 External factors contributing to the development of the illicit market .................. 11 
3.1.4 The magnitude of the illicit market and trafficking ................................................ 12 
3.2 Drivers ............................................................................................................................ 16 
3.2.1 Standard customs controls are inadequate for addressing the specificity of cultural 
goods ................................................................................................................................ 16 
3.2.2 Uneven treatment by Member States of cultural goods imported in the EU ........ 17 
3.3 Consequences ................................................................................................................ 18 
3.3.1 Trafficking in cultural goods fosters organised crime, terrorism financing, money 
laundering and tax evasion .............................................................................................. 18 
3.3.2 Loss of cultural identity and heritage to source countries and to mankind ........... 18 
3.3.3 Uncertainty undermines the licit market ................................................................ 19 
3.3.4 Heavy administrative burden and cost is placed on EU customs ........................... 19 
4. WHY SHOULD THE EUROPEAN UNION ACT ......................................................................... 20 
5. POLICY OBJECTIVES .............................................................................................................. 21 
Objectives tree ..................................................................................................................... 22 
6. POLICY OPTIONS ................................................................................................................... 23 
6.1 OPTION 0 - Baseline Scenario ......................................................................................... 23 
6.2 GROUPING A - Soft-law options to improve capacities and foster stakeholder goodwill 
and self-discipline ................................................................................................................. 23 

6.2.1 OPTION A1 - Endorsing codes of ethics or conduct established by art market 
associations or museums ................................................................................................. 23 
6.2.2 OPTION A2 - Raising awareness of potential buyers and of customs and other 
enforcement authorities .................................................................................................. 24 
6.3 GROUPING B - Regulatory options regarding the definition of cultural goods ............. 24 
6.3.1 OPTION B1 - Definition used in the UNESCO 1970 Convention .............................. 24 
6.3.2 OPTION B2 - Definition used in the UNIDROIT 1995 Convention ........................... 25 
6.3.3 OPTION B3 - Definition used in Regulation (EC) No 116/2009 on the export of 
cultural goods ................................................................................................................... 25 
6.3.4 OPTION B4 - Definition used in US legislation on the import of cultural goods 
(CPIA) ................................................................................................................................ 27 
6.3.5 OPTION B5 – A wide typology of goods narrowed down by an age threshold ...... 27 

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6.4 GROUPING C - Regulatory options regarding the documentation needed to certify the 
licit nature of the goods ....................................................................................................... 28 
6.4.1 OPTION C1 - Requirement on importers to present a copy of the export certificate 
issued in the source country ............................................................................................ 28 
6.4.2 OPTION C2 - Requirement to submit an importer’s statement for all goods 
concerned ......................................................................................................................... 29 
6.4.3 OPTION C3 - Requirement to obtain an import licence for all goods concerned ... 30 
6.4.4 OPTION C4 - Requirement to obtain an import licence for archaeological finds and 
elements of monuments and to submit an importer’s statement for other goods ........ 31 
7. IMPACT OF POLICY OPTIONS ................................................................................................ 31 
7.1 OPTION 0 - Baseline Scenario ......................................................................................... 32 
7.2 GROUPING A - Soft-law options to improve capacities and foster stakeholder goodwill 
and self-discipline ................................................................................................................. 33 
7.2.1 OPTION A1 - Endorsing codes of ethics or conduct established by associations of 
the art market or museums ............................................................................................. 33 
7.2.2 OPTION A2 - Raising awareness of potential buyers and of customs and other 
enforcement authorities .................................................................................................. 34 

7.3. GROUPING B - Regulatory options regarding the appropriate definition of cultural 
goods .................................................................................................................................... 36 
7.3.1 OPTION B1 - Definitions used in the UNESCO 1970 Convention ............................ 37 
7.3.2 OPTION B2 - Definitions used in the UNIDROIT 1995 Convention ......................... 37 
7.3.3 OPTION B3 - Definitions used in Regulation (EC) No 116/2009 on the export of 
cultural goods ................................................................................................................... 38 
7.3.4 OPTION B4 - Definition used in US legislation on the import of cultural goods 
(CPIA) ................................................................................................................................ 38 
7.3.5 OPTION B5 – A wide typology of goods, narrowed down by an age threshold ..... 39 
7.4. GROUPING C - Regulatory options regarding the documentation needed to certify the 
licit nature of the goods ....................................................................................................... 40 

7.4.1 OPTION C1 - Requirement to present, where applicable, a copy of the export 
certificate issued in the source country ........................................................................... 41 
7.4.2 OPTION C2 - Requirement to submit an importer’s statement for all goods falling 
within the scope ............................................................................................................... 42 
7.4.3 OPTION C3 - Requirement to obtain an import licence for all cultural goods........ 43 
7.4.4 OPTION C4 - Requirement to obtain an import licence for archaeological finds and 
elements of monuments and to submit an importer’s statement for other goods ........ 44 
8. COMPARISON OF OPTIONS .................................................................................................. 47 
8.1 Baseline scenario ............................................................................................................ 47 
8.2 GROUPING A – Soft law options based on stakeholder goodwill and self-discipline .... 47 
8.3 GROUPING B – Regulatory options regarding the appropriate definition of cultural 
goods .................................................................................................................................... 47 
8.4 GROUPING C – Regulatory options regarding the documentation needed to certify the 
licit nature of the goods ....................................................................................................... 47 
8.5 Preferred options ........................................................................................................... 47 

8.5.1 OPTION A2 - Raising awareness of potential buyers and of customs and other 
enforcement authorities .................................................................................................. 48 
8.5.2 OPTION B5 - Wide typology of UNIDROIT 1995 definition narrowed-down by an 
age threshold .................................................................................................................... 48 

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8.5.3 OPTION C4 - Requirement to obtain an import licence for archaeological finds and 
elements of monuments and to submit an importer's statement for other goods ........ 48 
8.6 Conclusion ...................................................................................................................... 48 
9. MONITORING AND EVALUATION ......................................................................................... 49 
9.1 Operational objectives ................................................................................................... 49 
9.2 Monitoring indicators ..................................................................................................... 49 
10. GLOSSARY ........................................................................................................................... 50 
11. WHO IS AFFECTED BY THE PROBLEM AND HOW ............................................................... 52 

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1. INTRODUCTION 

In the framework of the 2015 European Agenda on Security1 and of the 2016 Action Plan to 
step up the fight against the financing of terrorism2 the Commission announced that it would 
prepare a legislative proposal against illicit trade in cultural goods. The European Parliament 
and  the  Council  welcomed  the  European  Agenda  on  Security3  and  the  Action  Plan  and 
requested further intensification of work4.  

In a letter addressed to Commissioners Navracsics and Moscovici and the Minister of Culture 
of the Grand Duchy of Luxembourg5, the Ministers of Culture of France, Germany and Italy 
urged the Commission to submit to the Council of the European Union and to the European 
Parliament a proposal for an EU Regulation with a view to prohibiting, with all due efficiency, 
the importation into the EU of cultural goods exported illegally from their home countries.  

The  Council,  in  its  Conclusions6  of  12  February  2016,  recalled  the  importance  of  urgently 
enhancing the fight against the illicit trade in cultural goods and called on the Commission to 
propose legislative measures on this matter as soon as possible. 

At international level, UNESCO’s World Heritage Committee adopted the Bonn Declaration 
of  29  June  2015  on  world  heritage,  which  calls  upon  States  Parties  to  strengthen  their 
national  legislation  for  the  protection  of  cultural  heritage  by  introducing  more  effective 
measures to combat illicit trafficking and illegal trade of cultural property.  

A  World  Customs  Organisation  (WCO)  Resolution  of  June  2016  stresses  that  customs 
authorities have an instrumental role to play in preventing and intercepting illicit trafficking. 
The Resolution advocates the need to elevate illicit trafficking in cultural objects as an issue 
of global concern and to identify and close gaps in the current legislation.  

The  United  Nations  Security  Council  (UNSC)  has  issued  several  Resolutions7  supplementing 
earlier resolutions covering Iraq and Syria regarding concerns that ISIL, ANF and other groups 
associated  will  Al-Qaida  are  generating  income  from  engaging  directly  or  indirectly  in  the 
looting and smuggling of cultural heritage. The UNSC calls upon its Member States to adopt 
adequate  and  effective  regulations  on  export  and  import,  including  certification  of 
provenance,  where  appropriate,  of  cultural  property,  consistent  with 
international 
standards. 

With  the  Cairo  Declaration  of  14  May  2015,  the  governments  of  Egypt,  Libya,  Sudan,  UAE, 
Saudi  Arabia,  Iraq,  Oman,  Jordan  and  Lebanon  considered  the  possibilities  to  start 
negotiations  with  international  partners  such  as  the  US  and  the  EU  on  a  “Regional 
Memorandum of Understanding” on the banning of dealing in looted antiquities.  

Finally, with the Florence Declaration of March 2017, the G7 have called on States to identify 
and prohibit the trade in looted cultural property that has been trafficked across borders, to 
reinforce monitoring of free ports and free zones and to ensure closer cooperation between 
international law enforcement authorities. 

1 COM (2015) 185 final, 28 April 2015 
2  Commission  Communication  the  European  Parliament  and  the  Council  on  an  Action  Plan  for  strengthening  the  fight  against  terrorist 
financing [COM(2016) 50 final], 2 February 2016 
3 European Parliament resolution of 9 July 2015 on the European Agenda on Security (2015/2697(RSP)) 
4 European Council Conclusions of 18 December 2015 
5 holding the EU Presidency, 7 December 2015 
6 http://www.consilium.europa.eu/en/press/press-releases/2016/02/12-conclusions-terrorism-financing/  
7 2199 (2015), 2253 (2015) and 2347 (2017). See Annexes 16 to 18. 

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The  present  impact  assessment  examines  a  range  of  regulatory  and  non-regulatory  policy 
options in order to address weaknesses identified regarding the entry into the EU of cultural 
goods illicitly taken out of their home countries, paying special attention to situations where 
cultural  goods  are  endangered  e.g.  by  armed  conflict  and  where  illicit  trafficking  may 
support terrorism and organised crime. 

2. EXISTING REGULATORY AND OPERATIONAL FRAMEWORK 

Over  the  years,  measures  to  combat  trafficking  of  cultural  goods  have  been  taken  at 
international  level,  EU-level  and  national  level.  These  measures  cover  the  movement  of 
cultural  property  (export,  import  and  transfer  of  ownership)  with  a  view  to  protecting  the 
interests of individual States as well as the interests of the international community. 

At EU level the focus has been on protecting the cultural heritage of the Member States. 
The  Union  has  common  rules  subjecting  the  export  of  EU  cultural  goods  to  prior 
authorisation8 and common rules on the return9 of cultural goods which are found within its 
territory.  With  regard  to  importation  and  transit,  in  addition  to  the  general  customs 
legislation  (Union  Customs  Code)  the  Union  also  applies  prohibitions  for  cultural  goods 
arriving from Iraq and Syria.  

2.1 International instruments and initiatives 

There are three main relevant international Conventions. 

The  Hague  Convention  of  1954  for  the  Protection  of  Cultural  Property  in  the  Event  of  an 
Armed Conflict and its two Protocols focusing on the protection of cultural heritage during 
hostilities.  

The UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, 
Export  and  Transfer  of  Ownership  of  Cultural  Property10  in  response  to  increased  concerns 
about  commercially  motivated  plunder  in  the  1960s.  This  is  a  comprehensive  instrument 
providing for preventive measures such as inventories, export certificates, monitoring trade, 
penal and administrative sanctions, educational campaigns, etc., as well as for the restitution 
of stolen cultural property and for international co-operation on import and export controls, 
where designated cultural patrimony is in jeopardy from pillage.  

The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects11 which, while 
being  an  international  private  law  initiative,  is  an  important  source  of  law  for  combating 
illicit  trade  in  cultural  goods.  It  completes  the  UNESCO  1970  Convention  by  laying  down 
more specific rules for the restitution of cultural objects between Contracting States and in 
particular  dealing  with  the  question  of  bona  fide  possession.  It  covers  all  cultural  goods 
independently of whether or not they are designated by a signatory party.  

8  Regulation  (EC)  No  116/2009  on  the  export  of  cultural  goods.  Latest  implementation  report:  http://eur-lex.europa.eu/legal-
content/EN/TXT/HTML/?uri=CELEX:52015DC0144&qid=1488291848328&from=EN 
9 Directive 2014/60/EU 
10 The Convention entered into force on the 24th April 1972. It subsequently entered into force for each State three months after the date 
of deposit of that State’s instrument, except in  cases  of notifications of succession,  where the entry into force occurred  on  the date on 
which the State assumed responsibility for conducting its international relations. At the moment (February 2017) the Convention numbers 
131 signatory States, 25 of which are EU Member States. Ireland, Malta and Lithuania have still not signed the Convention. 
http://www.unesco.org/new/en/culture/themes/illicit-trafficking-of-cultural-property/1970-convention/text-of-the-convention/  
11 Signed in Rome in 24.06.1995 and currently numbering 37 signatory States, 16 of which are EU Member States. 
http://www.unidroit.org/instruments/cultural-property/1995-convention  

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Neither  the  UNESCO  1970  Convention  nor  the  1995  UNIDROIT  Convention  make  any 
reference to the possibility of accession of an international organisation such as the EU; only 
States may become a Party. Moreover, under the TEU and the TFEU, the European Union has 
no general power to enter into such international treaty relations.  

2.2 National legislation in the EU Member States 

All EU Member States regulate trade in cultural goods12. Most national legislations relate to 
the cultural heritage of the specific Member State. Since national definitions vary and may 
include  cultural  goods  which  are  not  covered  by  the  common  EU  provisions  of  Regulation 
(EC) No 116/2009 on the export of cultural goods, Member States have measures in place 
regarding the export and intra-Union movement of such goods. 

Twenty  five  Member  States  are  signatories  of  the  UNESCO  1970  Convention.  The 
Convention does not have a direct effect on the legal order of signatory states but relies on 
national  laws  and  regulations  to  implement  it.  The  large  margin  of  appreciation  involved 
leads to different degrees of protection and varying degrees of effectiveness. 

According  to  UNESCO13,  some  EU  Member  States  that  are  signatories  had  pre-existing 
national  legislation  on  cultural  heritage,  which  continues  to  apply  in  parallel  with  the 
provisions of the Convention. 

Only sixteen Member States have ratified the UNIDROIT 1995 Convention on the return of 
cultural objects. This is mainly attributed to conflicts between the Convention and the legal 
order of certain Member States. 

Member  State  specific  legal  provisions  on  the  import  of  cultural  goods  are  very  rare.  In 
Greece  an  import  licence  is  required  for  certain  cultural  goods.  In  Spain  and  in  Italy, 
provisions for import licences exist but their use by operators is voluntary: such licencing of 
imports is often requested by operators to facilitate their legal re-exportation.  

In  the  last  three  years,  often  in  response  to  the  crisis  in  the  Middle  East,  some  Member 
States,  in  particular,  Germany,  France,  Austria  and  the  Netherlands  have  introduced 
legislation  to  combat  illicit  trafficking  in  cultural  goods.  Germany  and  France14  require  an 
export  certificate  from  the  source  country  to  allow  the  entry  of  cultural  goods  into  their 
territory,  whereas  Austria  and  the  Netherlands  stipulate  that  the  importation  of  cultural 
goods that have been illegally exported from the countries of origin is forbidden.  

Austria and Germany also require that buyers of cultural goods should exercise due diligence 
to make sure that the cultural goods have licit provenance.  

2.3 Third country legislation regarding the import of cultural goods 

2.3.1 USA 

Third countries that are members of the 1970 UNESCO Convention may submit a request to 
the  US  President  for  US  measures15  concerning  archaeological  or  ethnological  material 
imported  into  the  US  from  their  country.  The  request  is  subject  to  proof  that  their 
patrimony is under threat from pillage; that they themselves have taken measures to protect 

12  Annex  8.  From  'Fighting  illicit  trafficking  in  cultural  goods:  analysis  of  customs  issues  in  the  EU',  external  study  carried  out  for  the 
Commission, 2017. 
13 UNESCO legislation of signatory States: http://www.unesco.org/culture/natlaws/  
14 Only in the case of exports directly from countries-signatories of the 1970 UNESCO Convention. 
15 The 1983 Convention on Cultural Property Implementation Act 19 USC 2601 et seq. or Public Law 97-446 referred to as the CPIA, is the 
U.S. statute implementing the 1970 UNESCO Convention. 

7

 
 
                                                 
it; that US import restrictions would be of benefit; and that US import restrictions will not 
impede the exchange of cultural property for educational or scientific purposes. 

After an agreement has been negotiated, the US publishes a list designating the categories 
of archaeological or ethnological objects that are subject to import restrictions. The objects 
listed  may  only  be  imported  into  the  US  after  an  export  permit  is  issued  by  the  source 
country, or any other documentation showing that the object left the source country prior to 
the imposition of restrictions. 

Any  designated  archaeological  or  ethnological  material  which  is  imported  into  the  US 
without the necessary export proof is subject to seizure and forfeiture, unless the importer 
proves  that  the  object  is  in  compliance  with  the  law.  A  declaration  under  oath  by  the 
importer  or  the  person  for  whose  account  the  good  is  imported  is  required.  In  case  of 
seizure or forfeiture, the object is returned to the State of origin. 

In  addition,  stolen  cultural  property  documented  as  appertaining  to  the  inventory  of  a 
museum or religious or secular public monument or similar institution in any State party to 
the UNESCO Convention may not be imported into the US after the date the 1970 UNESCO 
Convention entered into force with respect to the State party, or the effective date of the 
Act (April 12, 1983), whichever date is later.  

2.3.2 Switzerland 

In  implementation  of  the  1970  UNESCO  Convention,  Switzerland  has  adopted  the  Federal 
Act  on  the  International  Transfer  of  Cultural  Property  (CPTA)  and  the  implementing 
ordinance (CPTO)16 that entered into effect on 1 June 2005. These govern the import, transit, 
export and repatriation of cultural property.  

Operators  must  provide  the  following  in  the  customs  declaration:  (i)  the  cultural  property 
object type and (ii) a description as detailed as possible on the place of manufacture or, in 
case of archaeological or paleontological excavations, the place where the cultural property 
was  found.  Whoever  imports  or  places  cultural  property  in  transit  must  declare  that  the 
export of cultural property from a contracting State is not subject to a permit under the 
laws of that State. Persons required to notify customs inform the customs office in writing 
on the storage of cultural property in a free zone. The notification must contain the required 
aforementioned documents and information. 

Further  measures  taken  in  2016  impose  an  official  audit  for  every  archaeological  object 
bound  for  importation  in  the  Freeport17.  In  case  of  dubious  origin  or  absence  of  an 
internationally recognised paper trail, the item is barred from entering the facilities. 

2.4 Ad hoc EU trade prohibitions: EU Regulations on Iraq and Syria 

Council Regulation (EC) No 1210/2003 of 7 July 2003 concerning certain specific restrictions 
on  economic  and  financial  relations  with  Iraq  and  Council  Regulation  (EU)  No  36/2012 
concerning  restrictive  measures  in  view  of  the  situation  in  Syria  prohibit  trade  in  cultural 
goods with these countries where there are reasonable grounds to suspect that the goods 
have been removed without the consent of their legitimate owner or have been removed in 

16 They both entered into force on 1 June 2005. 
17 http://www.arts-franc.ch/copie-de-procedure-pfeg-fr; http://geneva-freeports.ch/files/5514/7444/3078/info-flash-contle-objets-
archologique.jpg both retrieved 25 October 2016. 

8

 
 
                                                 
breach  of  national  or  international  law18.  The  legislation  does  not  include  any  further 
requirements regarding implementation. 

These two instruments are the only example of restrictive measures adopted by the Union 
so far with regard to the importation of cultural goods. 

3. THE PROBLEM 

The Problem Tree below serves as a logical framework to illustrate current problems, their 
drivers and consequences.  

Problem tree 

- Standard customs 
import controls are 
inadequate in 
addressing the 
specificity of cultural 
goods 

S
R
E
V

I

R
D

- Uneven treatment 
by different Member 
States of cultural 
goods being brought 
into the EU 

EXTERNAL FACTORS 

- trafficking in cultural 
goods fosters 
organised crime, 
terrorism financing, 
money laundering and 
tax evasion  

↓

M
E
L
B
O
R
P

L
A
R
E
N
E
G

Cultural goods from 
third countries 
illegally taken from 
their historical and 
archaeological 
context are brought19 
into the EU 

↓

S
E
C
N
E
U
Q
E
S
N
O
C

- Loss of cultural 
identity and heritage 
to source countries 
and to mankind 

- Uncertainty 
undermines the licit 
market  

- Heavy administrative 
burden and cost is 
placed on EU customs  

- poverty, unstable political situations and armed conflict in third countries 

- better equipment in the hands of looters (metal detectors, excavation machinery) 

- EU as attractive destination for cultural goods: high demand and many affluent buyers 

- development of cross-border financial transactions and e-commerce 

18 Regulation (EC) No 1210/2003 (Iraq) and Regulation (EU) No 36/2012 (Syria). 
19 This includes goods stored in free zones as well as those released for free circulation. 

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3.1 Problem definition 

Before  presenting  the  problem  of  illicit  trade,  it  is  appropriate  to  give  an  idea  of  the 
structure of the licit market. 

3.1.1 The licit market and trade 

The  licit  global  art  and  antiques20  market  is  estimated  at  $63.8  billion  of  sales  (2016)21. 
Dealers and private sales account for some 53% and auction houses account for some 47%. 
Post-war and contemporary art accounts for  46% and modern art accounts for 30% of the 
auction  market.  The  remaining  24%  is  the  market  for  antiques,  ancient  art  and  collectible 
articles of an older age. 

The US market share is 43%, followed by Europe at 35% and China at 19%. The total value of 
the European market is around $22 billion, of which, the UK accounts for two-thirds, or 24% 
of  global  trade.  Among  other  European  countries,  Switzerland22  represents  6%,  France  5% 
and Germany 3%, while Austria, Spain and the Netherlands represent each roughly 0.5%. 

Online sales are a fast-growing section of the world market. Conservative estimates set the 
value  of  e-commerce  to  $4.7  billion,  on  an  upward  trend,  representing  around  7%  of  the 
global art and antiques sales.  

European  art  and  antiques  exports  are  estimated  at  $14.59  billion  and  place  Europe  first 
among  other  continents.  After  the  Americas,  with  $11.5  billion,  Europe  comes  second  in 
terms of imports to and between European countries. More than half of these imports are 
going into the UK ($6.3)23.  

In particular with regard to the classical antiquities and ancient art market, the European 
auction market, estimated at $67 million, is relatively small compared to the Chinese ($295 
million)  but  larger  than  the  U.S.  market  ($52  million).  Reportedly,  6  out  of  10  lots  sold  at 
auction in Europe in the course of 2016 originated in the Far East.  

Besides the above estimates stemming from the art market, estimates of EU external trade 
(i.e.  excluding  intra  EU  movements)  may  be  based  on  EUROSTAT  figures  for  Chapter  9724, 
covering works of art, collectors pieces and antiques. On this basis, a rough estimate of the 
annual value of total EU imports declared to EU customs may be in the order of €3.7 billion a 
year. 

Classical antiquities and ancient art objects are covered by tariff heading 9705 which for the 
same  period  showed  a  total  of  €1  billion  worth  of  annual  EU  imports.  However,  this  tariff 
heading includes a variety of other goods25. Taking into account that the European auction 
market for such objects represents $67 million, it may be safely assumed that the value of 
such EU imports is only a small fraction of the total imports declared under this heading. 

20 Antiques are generally considered objects over 100 years of age. 
21 Source: TEFAF Art Market Report 2016. In the 2017 TEFAF Report however, this figure was cut down by a third, to $45 billion. This report 
was conducted by a different author, Rachel Pownall, applying a new methodology. These figures have raised a controversy. 
See relevant article: https://www.artsy.net/article/artsy-editorial-new-estimate-cuts-art-markets-value-third  
22 Switzerland is first when it comes to high-end jewellery trade, at $330 million worth of Haute Joaillerie sales or 50% of the total European 
auction market. 
23 The UK has been historically a net exporter of art and antiques, a trend only briefly changed in 2011 due to the financial crisis, but re-
established in 2013 when exports exceeded imports again. 
24  Average  for  2014-17.  There  are  considerable  difficulties  in  obtaining  reliable  trade  statistics  for  cultural  goods.  For  example,  cultural 
goods may also be declared under chapters other than 97. The inadequacy of the current classification nomenclature is an issue that has 
been flagged by the WCO but the changes to the tariff nomenclature will take many years to introduce. 
25  ‘Collections  and  collectors'  pieces;  of  zoological,  botanical,  mineralogical,  anatomical,  historical,  archaeological,  palaeontological, 
ethnographic or numismatic interest’. 

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In terms of employment, the major volume of the trade is operated by micro businesses of 
the  sector.  Most  prevalent  are  small  or  sole  retailers  with  no  employees;  75%  of  the  art 
market trade in terms of number of enterprises is made up of sole traders. Next to those, 
there is a handful of big auction houses operating internationally, which can be considered 
medium or large enterprises in the sector.  

3.1.2 What is trafficking or illicit trade in cultural goods? 

In the present context, trafficking or illicit trade in cultural goods is to be understood as: 

a) Trading in cultural goods exported from a third country in violation of its national laws and 
regulations. The laws of the source country determine the licit or illicit character of the good 
in question and of the relevant transaction.  

b) The trading in Iraqi or Syrian cultural goods in violation of the prohibitions laid down by 
Regulations (EC) No 1210/2003 and (EU) No 36/2012. In this case, the illegality stems from 
decisions  taken  by  the  Council  of  the  European  Union  in  line  with  United  Nations  Security 
Council Resolutions. 

3.1.3 External factors contributing to the development of the illicit market 

There are technological, geopolitical and socio-cultural factors which contribute to intensify 
the problem26. These cannot be changed by this initiative and must be taken as given. 

An  important  factor  on  the  supply  side  is  the  prevailing  poverty  in  many  regions  of  the 
developing  world  which  are  rich  in  cultural  heritage  sites.  Money  from  illicit  digging  can 
supplement  the  income  of  impoverished  locals  in  rural  areas.  They  often  only  receive  a 
fraction of the payment for the goods, compared to the middlemen who organise the trade 
and  the  dealers  who  make  the  final  sale27.  Such  activity  may  be  combined  with 
environmental  crime,  in  particular  trafficking  in  endangered  wildlife  and  exotic  timber.  In 
both cases, a non-renewable resource is exploited for temporary gain until it is exhausted.  

When poverty is combined with political instability and armed conflict, the plundering and 
destruction  may  even  intensify,  especially  when  motivated  by  ideological  reasons,  e.g. 
where  a  warring  faction  deliberately  attempts  to  erase  traces  of  past  civilisations  and 
religions  (so-called  'cultural  cleansing').  A  typical  example28  is  the  case  of  post-Soviet 
occupation Afghanistan, where Taliban commanders organised systematic illegal excavations 
of archaeological sites to finance their war effort, but also blew up ancient artefacts because 
they were perceived as 'idols' (March 2001, the destruction of Bamiyan Buddhas).  

Technological  progress  has  provided  modern-day  looters  with  exceedingly  powerful  tools, 
compared to the digging implements of the past. Where classic tomb-robbers had only pick 
axes,  rods  and  shovels  at  their  disposal,  modern  looters  have  metal-detectors,  bulldozers, 
power drills, scuba-diving equipment and explosives. They also have powerful vehicles and 
vessels which permit them access to remote unguarded land and maritime areas. Access to 
sites  has  become  easier  also  by  the  falling  cost  of  international  travel  and  the  erosion  of 
borders.  

The offer of stolen and illegally exported cultural goods exists because there is a market for 
these  objects.  The  demand  is  concentrated  mostly  in  Europe  and  North  America,  where 

26 Neil Brodie, Illicit Antiquities. The Theft of Culture and the Extinction of Archaeology.  
27 Studies suggest that 'subsistence diggers' only receive less than one per cent of the final sale price of an object. 
28 Also the conflicts in Cambodia and former Yugoslavia. 

11

 
 
                                                 
private  and  institutional  collectors  have  the  financial  means  to  buy  cultural  objects, 
considering  them  desirable  as  good  investment  opportunities  or  signs  of  prestige,  or 
appreciating  them  for  their  aesthetic  properties.  Purchasing  and  collecting  archaeological 
objects  is  perceived  even  as  a  way  of  protecting  them  from  deterioration  and  destruction 
and  evocative  of  an  educated  taste.  The  idea  is  also  often  promoted  that  it  is  the  sole 
responsibility of the source countries to police their cultural heritage. 

Lastly,  the  development  of  cross-border  transactions  and  e-commerce  has  provided 
criminals with greater opportunities to offer goods to buyers throughout the world and to 
receive payment undetected. In recent decades, e-commerce has brought offer and demand 
into  much  closer  contact,  allowing  transactions  to  take  place  on  online  platforms  in  all 
discretion.  

3.1.4 The magnitude of the illicit market and trafficking 

There  are  hardly  any  data  or  instruments  for  measuring  illicit  commerce.  Nevertheless, 
according to Interpol, the black market in works of art is becoming as lucrative as those for 
drugs, weapons and counterfeit goods.  
The  information  dossier  that  UNESCO  produced  for  the  40th  anniversary  of  the  1970 
Convention states that, together with the drugs and armaments trades, the black market in 
antiquities  and  culture  constitutes  one  of  the  most  firmly  rooted  illicit  trades  in  the 
world29.  

The main destination markets are Europe and North America, while China is considered both 
source  and  market  country  in  the  global  trade  in  cultural  objects  because  of  its  growing 
affluence.  

The  value  of  the  illegal  antiquities  traffic  is  also  hard  to  assess30  due  to  its  invisible  and 
seamless character31. It is estimated that only 30-40% of antique dealings take place through 
auction  houses  where  the  pieces  are  published  in  catalogues32;  the  rest  occurs  through 
private  transactions33.  According  to  some  estimates,  in  80-90%  of  sales  of  antiquities  the 
goods have illicit origins34. 

According to studies, the total financial value of the illegal antiquities and art trade is larger 
than  any  other  area  of  international  crime  except  arms  trafficking  and  narcotics35  and  has 
been estimated at $3 to 6 billion yearly36. 

Links  between  the  antiquities  trade  and  drug,  wildlife  and  arms  trafficking37,  money 
laundering  and  tax  evasion38  and  the  financing  of  war  machines  and  terror  organisations 

29 UNESCO. The Fight against the Illicit Trafficking of Cultural Objects: the 1970 Convention: Past and Future. 15 and 16 March 2011. 
 http://unesdoc.unesco.org/images/0019/001916/191606E.pdf  
30 Alesia Koush 'Fight against the Illegal Antiquities‘ Traffic in the EU: Bridging the Legislative Gaps' Bruges, College of Europe 2011; Hardy 
'Illicit trafficking, provenance research and due diligence: the state of the art'. Research study, 30 March 2016. 
31  Duncan  Chappell  &  Kenneth  Polk,  Unravelling  the  Cordata‖:  Just  How  Organized  Is  the  International  Traffic  in  Cultural  Objects?‘,  in 
Stefano Manacorda & Duncan Chappell (eds.), Crime in the Art and Antiquities‟ World. Illegal Trafficking in Cultural Property 
32 Peter Watson, Sotheby's: The Inside Story, Random House, 1997, cited in Chauncey D. Steele 
33 Alesia Koush, op. cit., p. 4. 
34 Peter Watson, loc. cit. 
35 Lisa J. Borodkin, The Economics of Antiquities looting and a Proposed Legal Alternative‘, Columbia Law Review, no. 2, 1995, p. 377-418.  
36 Ibid., p. 377 
37 Neil Brodie, Jenny Doole & Peter Watson, op. cit., p. 16. 
38  WCO 
compliance/activities-and-programmes/illicit-trade-report/itr-2015-en.pdf?db=web 

Illicit  Trade  Report  2015,  available  at:  http://www.wcoomd.org/-/media/wco/public/global/pdf/topics/enforcement-and-

12

 
 
                                                 
have  been  widely  reported39,  which  puts  antiquities  trafficking  on  the  level  of  serious 
transnational organised crime.  

Endangered heritage – categories of cultural goods at risk 
Certain categories of cultural heritage are particularly vulnerable to dispersion and thereby 
to disappearance and loss; the loss is not only when an artefact is destroyed but also when 
it is wrongfully appropriated. 

Certain  cultural  goods  are  by  their  nature  directly  exposed  to  increased  risk  of  loss  or 
dispersion  and  therefore  need  special  protection.  This  is  the  case  in  particular  with 
archaeological heritage and religious artefacts.  

However,  the  notion  of  endangered  heritage  is  not  expressly  identified  in  national 
legislations nor defined as such on the basis of increased exposure of those cultural goods to 
loss or dispersion to justify the adoption of a set of special rules for cultural goods at risk.  

Statistical  analyses  of  Sotheby’s  auctions  in  2001,  2005,  2008  and  2010  demonstrate  that 
Egyptian, Greek and Roman antiquities are worth more than other ancient societies’ cultural 
objects. Sculpture is worth more than mosaics and jewellery, which in turn are worth more 
than ceramics40. Each year, more than a million ancient coins are sold through one Internet 
auction site in the US alone41; they are ‘fundamental and lucrative’ for the trade42.  

Crisis or conflict situations and wars increase the risk of trafficking in cultural goods that are 
by  their  nature  particularly  vulnerable  to  theft  and  looting.  Particularly  at  risk  are  goods 
from countries with numerous archaeological sites, where the question of maintaining an 
inventory of cultural property has long been logistically problematic43 and effectively policing 
the remote areas where the archaeological sites are located is near impossible. 

The UNESCO Subsidiary Committee of the Meeting of States-Parties to the Convention, in its 
review  of  national  reports44,  has  underlined  the  increased  risk  of  illegal  archaeological 
excavations,  in  particular  in  the  absence  in  certain  States-Parties  of  legal  supervision 
framework (permits, certificates, licences, etc.). 

Storage of cultural goods in free zones 
Another issue related to the problem of trafficking is the storage of looted cultural goods in 
free zones. Free zones are designated tax free areas where no customs duties are levied on 
imports  or  exports.  The  key  role  played  by  the  European  free  zones  in  storing  looted 
archaeological  items45  is  exemplified  by  the  1995  Medici  case.  A  long-running  investigation 
led  to  the  arrest  and  conviction  of  Giacomo  Medici,  who  ran  an  extensive  and  highly 
lucrative  international  antiques  smuggling  ring  for  nearly  40  years,  selling  the  looted 
artefacts through major auction houses. The Medici criminal group used a holding company 
located in the Geneva Freeport. 

39 Documentary Journeyman Pictures: Blood antiques‘ https://www.journeyman.tv/film/4571/blood-antiques  
40 Kiel and Tedesco, 2011: 10 
41 According to numismatist Nathan Elkins’ calculations, Elkins, 2012: 98 
42 Elkins, 2012: 93 
43  Evaluation  of  UNESCO’s  Standard-setting  Work  of  the  Culture  Sector;  Part  II  –  1970  Convention  on  the  Means  of  Prohibiting  and 
Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. FINAL REPORT. April 2014 
http://unesdoc.unesco.org/images/0022/002269/226931E.pdf  
44  Review  of  national  reports  submitted  by  the  UNESCO  States  Parties  on  the  measures  taken  to  implement  the  1970  Convention. 
C70/15/3.SC/6, Paris, July 2015. 
45 "Fighting illicit trafficking in cultural goods: analysis of customs issues in the EU", Study conducted for DG TAXUD, not published yet. 

13

 
 
                                                 
Free zones may serve as repositories for valuable art and antiques and conceal ownership of 
high-value  objects.  The  ability  of  free  zones  to  shroud  financial  wealth  and  encourage 
criminal behaviour casts shadow on the anonymity that prevails in the free zones46. Supra-
national institutions could alleviate some of the privacy, a measure that would be welcomed 
by many in the art industry. 

The urgency created by terrorist activity and terrorism financing 
Multi-billion  antiquities  revenues  are  used  by  Taliban,  Al-Qaeda  and  Hezbollah,  to  say 
nothing of more common drug smugglers dealing also in antiquities47. In Afghanistan, there 
are  entire  zones  controlled  by  Taliban  where  antiquities  are  excavated  and  subsequently 
sold on the market at prices ranging up to €300,000 to finance their war activities.  

From 1996 to 1998, for example, the Society for the Preservation of Afghanistan’s Cultural 
Heritage reported, based on eyewitness accounts, that militant Islamist fighters were looting 
ancient Afghan sites, sometimes with bulldozers, to obtain marketable antiquities. 

In 1999, Mohamed Atta, the al-Qaeda member who hijacked and flew an American Airlines 
plane  into  the  North  Tower  of  the  World  Trade  Centre  in  New  York,  tried  to  sell  Afghan 
antiquities  to  a  German  university  professor  in  Göttingen.  Atta,  according  to  information 
released by the German intelligence agency, claimed that he was selling artefacts in order to 
purchase an airplane48.  

In its report titled Financing of the Terrorist Organisation Islamic State (ISIL) in Iraq and the 
Levant49, the Financial Action Task Force (FATF) notes that although it might be impossible to 
show a direct link between the ISIL and the sale of a specific artefact, ISIL makes money in 
two  ways  from  antiquities,  through  selling  looted  artefacts  and  taxing  traffickers  moving 
items  through  ISIL-held  territory50.  The  total  amount  that  ISIL  is  earning  is  difficult  to 
estimate,  notes  the  report,  particularly  as  the  activity  is  taking  place  across  Syria,  in  the 
midst of the conflict, not just in ISIL-held areas.  

FATF  also  notes  that  ISIL’s  influence  and  presence  has  also  expanded  globally  with 
recognised  affiliates  in  North  and  West  Africa  (including  Boko  Haram),  Pakistan  and 
Afghanistan and the Arabian Peninsula. 

In order to disrupt the financing through the buying and selling of tainted antiquities, FATF 
implement  policies  that  require  clear,  certified 
points  to  the  need  to  adopt  or 
documentation  that  identifies  the  origin  of  the  artefacts  offered  for  sale  by  the  auction 
houses and other legitimate businesses involved in the antiquities trade.  

National Geographic  reported that according to flash drives seized by Iraqi security forces, 
ISIL and other illicit groups operating in Syria could have earned as much as tens of millions 
of  USD  to  date  from  antiquities  stolen  from  Syria51.  ISIL  also  occupies  more  than  4500 
archaeological sites, some of them UNESCO World Heritage sites.  

46 According to TEFAF Art Market Report 2017. 
47 Neil Brodie, Jenny Doole & Peter Watson, loc. cit. 
48 Documentary Spotlight: Blood antiques‘, with the reference to "Kunst als Terrorfinanzierung?", Der Spiegel, 18 July 2005, retrieved 13 
April 2011, http://www.spiegel.de/spiegel/print/d-41106138.html 
49 http://www.fatf-gafi.org/media/fatf/documents/reports/Financing-of-the-terrorist-organisation-ISIL.pdf  
50 Frenkel, S. (2014) 
51 Pringle, H. (2014) 

14

 
 
                                                 
The Permanent Representative of the Russian Federation to the United Nations, in a letter 
addressed to the Security Council52, reported a profit derived by the Islamists from the illicit 
trade in antiquities and archaeological treasures estimated at $150-200 million annually. 

According to the letter, within ISIL, the smuggling of artefacts is organised by the antiquities 
division,  which  is  part  of  the  so-called  ministry  for  control  of  natural  resources  within  the 
group’s  “government”.  Only  individuals  in  possession  of  a  written  permit  stamped  by  this 
“department”  are  authorised  to  carry  out  excavations  and  to  remove  and  transport 
excavated  items.  Antiquities  from  Syria  and  Iraq  are  exported  by  the  extremists  mostly 
through  neighbouring  countries,  where  representatives  of  international  criminal  groups 
produce fake documents on the origin of the antiquities. 

The  antiquities  are  then  offered  to  collectors  from  various  countries,  generally  through 
Internet  auction  sites  and  specialised  online  stores.  The  criminals  employ  concealment 
measures, such as IP-address spoofing, which makes it difficult to identify and determine the 
actual location of the seller. ISIL has been exploiting the potential of social media more and 
more  frequently  so  as  to  cut  out  the  middleman  and  sell  artefacts  directly  to  buyers. 
Preference  is  given  to  cash  transactions,  while  transactions  conducted  over  the  Internet 
involve  the  same  financial  institutions  as  are  involved  in  transactions  for  the  purchase  of 
weapons and ammunition. 

In  its  report  titled  'Protection  of  Iraqi  and  Syrian  antiquities'53  the  US  Government 
Accountability Office (GAO) states that, in addition to the destruction of cultural property, 
looters, including people affiliated with ISIS and other terrorist organisations, other parties 
to the conflict, as well as opportunistic individuals, have illegally excavated areas in Iraq and 
Syria, presumably in search of antiquities to sell. The proceeds of these sales could be linked 
to  financing  terrorism.  Moreover,  satellite  imagery54  shows  several  archaeological  sites  in 
Syria  in  2012,  before  extensive  looting,  and  after  extensive  looting  in  2014,  with  visible 
looting pits. 

Further according to the GAO report, a US Deputy Assistant Secretary of State reported that 
ISIS  has  encouraged  the  looting  of  archaeological  sites  as  a  means  of  both  erasing  the 
cultural heritage of Iraq and Syria and raising money. The State official noted that the US raid 
to  capture  ISIS  leader  Abu  Sayyaf  resulted  in  the  finding  of  documents  that  demonstrated 
that ISIS had established an Antiquities Division with units dedicated to researching known 
archaeological  sites,  exploring  new  ones,  and  marketing  antiquities.  According  to  these 
documents, the Antiquities Division collects a 20 percent tax on the proceeds of antiquities 
looting  and  issues  permits  authorising  certain  individuals  to  excavate  and  supervise 
excavations  of  artefacts.  Documents  found  during  the  raid  also  indicate  ISIS  made 
statements prohibiting others from excavating or giving permits not authorised by ISIS. Sales 
receipts indicated the terrorist group had earned more than $265,000 in taxes on the sale of 
antiquities over a four-month period in late 2014 and early 2015. 

These developments have further magnified the problem in recent years making it urgent to 
take action. 

52 S/2016/298. Letter dated  31 March 2016 from the  Permanent Representative of the Russian Federation to the United Nations Mr.  V. 
Churkin, addressed to the President of the UN Security Council. See Annex 13 
53  GAO  was  asked  to  examine  the  protection  of  Iraqi  and  Syrian  cultural  property,  including  views  of  art  market  experts.  The  report 
describes activities undertaken by U.S. agencies and the Smithsonian Institution to protect Iraqi and Syrian cultural property since 2011, 
and  art  market  experts’  suggestions  for  improving  U.S.  government  activities.  GAO  reviewed  documents  and  interviewed  U.S., 
international, and foreign officials. http://www.gao.gov/assets/680/679075.pdf  
54 http://unosat.web.cern.ch/unosat/unitar/downloads/chs/FINAL_Syria_WHS.pdf See Annex 15 

15

 
 
                                                 
3.2 Drivers 

This  section  examines  the  drivers  in  the  EU  of  the  problem  of  cultural  goods  from  third 
countries illegally taken from their historical and archaeological context and brought into the 
EU. 

3.2.1 Standard customs controls are inadequate for addressing the specificity of cultural 
goods  

Currently,  cultural  goods  undergo  only  standard  customs  controls  i.e.  the  customs 
declaration has to identify the type of goods based on tariff classification, the source country 
of the shipment and its value. Standard controls do not seem adequate where it comes to 
identifying the proper origin and provenance as well as the age or value of the goods.  

For example, the difficulty in establishing the provenance of cultural goods that have never 
been  registered  in  museum  catalogues  or  are  claimed  to  belong  in  private  collections  that 
have  never  been  inventoried  is  considerable.  While  unique  cultural  goods  may  be  easy  to 
identify  and  describe,  other  cultural  goods  belonging  for  instance  to  civilisations  that 
flourished  over  a  wide  geographical  area  (e.g.  Babylonian,  Egyptian,  Greco-Roman,  Arab, 
Byzantine,  Ottoman)  or  serial  cultural  goods  such  as  coins  or  jewellery  that  can  be 
dismembered are not as easy to identify. The INTERPOL database for stolen art for instance, 
while  considered  one  of  the  most  important,  does  not  include  items  for  which  there  is  no 
photograph. This would be the case of cultural goods illicitly excavated, where the State to 
which they belong is not even aware of the fact.  

The  difficulties  that  customs  authorities  face  in  detecting  cultural  goods  that  have  been 
illicitly exported from their source country are exemplified in the implementation of the ad 
hoc EU measures banning trade in cultural goods with Iraq and Syria: 

Article 3 of Council Regulation (EC) No 1210/2003 on specific restrictions on economic and 
financial  relations  with  Iraq  stipulates  that  any  movement  of  Iraqi  cultural  property  is 
prohibited  unless  the  exportation  of  the  cultural  good  in  question  can  be  proved  to  have 
happened prior to 6 August 1990. 

According  to  Article  11c  of  Regulation  (EU)  No  36/2012,  it  is  prohibited  to  import,  export, 
transfer  or  provide  brokering  services  related  to  the  import,  export  or  transfer  of  Syrian 
cultural property goods and other goods of archaeological, historical, cultural, rare scientific 
or  religious  importance.  The  prohibition  applies  where  there  are  reasonable  grounds  to 
suspect  that  the  goods  have  been  removed  from  Syria  without  the  consent  of  their 
legitimate owner or have been removed in breach of Syrian law or international law unless it 
is demonstrated that the goods were exported from Syria prior to 15 March 2011 or if the 
goods are being safely returned to their legitimate owners in Syria.  

As  artefacts  are  rarely  dispatched  directly  from  the  source  countries,  in  the  case  of  illicit 
cultural  goods  from  Iraq  or  Syria,  where  a  different  origin  is  declared  by  an  importer,  the 
burden  of  proof  that  the  goods  are  indeed  from  these  countries  and  that  they  are  the 
products of looting or illegal excavations is placed on EU customs.  

16

 
 
Based on the results of surveys55, the adequacy of the EU ad hoc measures is questioned by a 
considerable  number  of  Member  States.  The  possibility  that  these  prohibitions  are  not 
currently enforced to their full extent cannot be discarded. 

The  issue  of  customs  having  to  prove  Iraqi  or  Syrian  provenance  is  believed  to  undermine 
the  purpose  of  the  ad  hoc  measures.  For  instance,  importers  of  cultural  goods  may  claim 
other  origin  e.g.  Jordan  or  United  Arab  Emirates,  which  would  then  have  to  be  proved 
inaccurate  by  the  authorities  of  the  Member  States.  This  requirement  on  the  shoulders  of 
customs authorities is very difficult to meet. Usually, customs lack expertise in art history to 
identify  suspicious  objects  and  operational  resources  to  trace  provenance  and  determine 
age. Especially when it comes to cultural goods from illegal excavations, the finds cannot be 
traced back to any museum catalogue or database of stolen art, since they have never been 
registered.  Similarly,  when  exported  prior  to  a  certain  date,  the  goods  are  considered  to 
have been moved legally. Again, the burden of proof regarding exportation after that date 
lies  with  the  competent  authorities  of  the  Member  States.  Finally,  once  a  good  has  been 
seized, the identification of the legitimate owner might pose difficulties, which is important 
for restitution. 

While customs are well-placed at the EU external border to intervene at the stage of physical 
delivery of the goods, properly implementing these prohibitions in a context where imports 
of cultural goods are not subject to any specific or targeted controls is very difficult.  

EU  customs  authorities  have  no  means  to  determine  conclusively  facts  and  events  that 
happened  at  a  specific  time  in  the  third  country  in  question,  especially  without  the 
administrative assistance of the local authorities. Standard customs controls at import seem 
inadequate for addressing the specificity of cultural goods; such goods may therefore tend 
to enter the EU without sufficient scrutiny. 

3.2.2 Uneven treatment by Member States of cultural goods imported in the EU 

The above technical difficulties and lack of expertise are in themselves a source of divergent 
implementation  of  EU  legislation  by  Member  States.  However,  they  are  also  compounded 
with a variety of legal rules and requirements applied by Member States. 

While there is a clear EU prohibition of imports into the EU of goods originating in Iraq and 
Syria, imports from other countries are not subject to any EU restrictions. At the same time, 
a small number of Member States do apply restrictions on imports that have been illegally 
exported from their historical and archaeological environment in any third country.  

These  Member  States  also  apply  variable  requirements  regarding  the  proof  of  the  legal 
movement  of  the  goods,  ranging  from  the  presentation  of  export  certificates  from  third 
countries or of an import licence issued by competent national authorities to a commitment 
by operators to due diligence regarding the origin and provenance of the goods.  

The recent introduction by Member States of such measures has increased the diversity of 
rules  and  regulations  within  the  EU.  This  partial  and  patchy  legal  framework  relating  to 
imports of cultural goods to the EU contributes to uncertainty about the licit or illicit nature 
of  cultural  goods  being  brought  into  the  EU  and  suggests  that  illicit  trade  may  be  directed 
towards Member States where import restrictions are weaker or non-existent.  

55 In the framework of the study titled 'Fighting illicit trafficking in cultural goods: analysis of customs issues in the EU', 2017, conducted by 
the Commission. Not published yet. 

17

 
 
                                                 
The effectiveness of national measures is undermined by the possibility for cultural goods to 
enter  the  internal  market  through  any  Member  State  which  has  no  customs  measure  in 
place and then move freely and reach the market even of those Member States that have 
adopted strict measures. Such divergences of customs measures allow for ‘port shopping’ at 
external  EU  borders  and  undermine  the  consistency  and  protective  character  of  the  EU 
customs union in dealing with illicit trade. 

3.3 Consequences 

Failing  to  stop  cultural  goods  from  third  countries  illegally  taken  from  their  historical  and 
archaeological context to be brought into the EU has several consequences. 

3.3.1  Trafficking  in  cultural  goods  fosters  organised  crime,  terrorism  financing,  money 
laundering and tax evasion 

The  law  and  order  consequences  both  in  the  source  countries  and  in  the  countries  of 
destination  are  negative.  Looting  and  trafficking  cultural  goods  fosters  common  as  well  as 
organised crime in all the countries concerned. Starting from the theft of the objects, their 
trajectory until they reach the countries of destination (the EU in this case) is fraught with 
illegality. Theft56, bribery and corruption, violation of domestic export legislation, smuggling, 
forgery,  counterfeiting,  fraud,  etc.  are  perpetrated  until  the  goods  reach  the  buyers  in 
Europe. As a result, in all of these cases, the objects arrive on the destination market with a 
high criminal record57. 

As indicated in the problem section, the illegal trade in antiquities and other cultural goods is 
associated  with  transnational  organised  crime  often  connected  to  drugs  and  arms 
trafficking and terrorism financing. Dealers and middlemen bringing the goods to their final 
destination  operate  in  criminal  networks  implicated  in  other  forms  of  illicit  trade  that  are 
detrimental to public order and security. To the extent that goods imported to the EU and 
their value are not properly declared at import, tax evasion is also a consequence. 

3.3.2 Loss of cultural identity and heritage to source countries and to mankind 

Illicit trade in cultural goods is detrimental to mankind as it deprives all citizens from having 
access to and gaining knowledge about their common historical and cultural heritage.  

In  particular,  from  the  point  of  view  of  educational  and  historical  value  that  the  objects 
represent,  looting  of  cultural  treasures  causes  irreparable  damage,  since  it  destroys  the 
archaeological  and  historical  context  of  the  sites,  and  often  the  objects  themselves. 
Trafficking of the cultural objects makes them end up in private hands, never to be seen by 
the public, nor studied by education and science professionals. 

Foreign  demand  for  illicit  cultural  goods  provides  local  impoverished  populations  with  a 
supplement  to  their  meagre  income  (so-called  'subsistence  digging').  The  chain  of  supply 
starts  with  common  thieves  and  tomb  robbers  in  source  countries,  who  often  destroy  the 
archaeological  context  and  damage  the  objects  themselves  while  excavating.  For  relatively 

56 The category of clandestinely excavated cultural goods sometimes overlaps with the category of stolen goods, when some countries have 
declared all unexcavated archaeological material to be the property of the State. Therefore their removal without State permission may 
amount to theft. O'Keefe 1994. 
57 Alesia Koush, 'The illegal antiquities‘ traffic as a form of transnational organized crime‘, Bruges, College of Europe, April 2011, p. 6.  

18

 
 
                                                 
small amounts of money58, they sell the objects to professional dealers and middlemen, who 
transport the goods towards final destinations. 

While  gaining  these  small  amounts  of  money  may  be  seen  as  positive59  by  those  local 
populations, in the longer term this activity is unsustainable. The number of cultural goods 
to be found is not unlimited. When all of them are found and sold, the local population loses 
permanently not only the link to their history and culture but also the opportunity to gain a 
steady income for the whole area by developing cultural tourism. 

3.3.3 Uncertainty undermines the licit market 

From the point of view of the licit art and antiques market in the EU, the current uncertainty 
regarding  the  licit  provenance  of  imported  cultural  goods  can  be  also  detrimental  to  art 
dealers  and  private  collectors.  Unprovenanced  or  insufficiently  provenanced  goods  quite 
often turn out to be fakes or they can be later identified as stolen and seized. As the TEFAF 
Art Market Report 2017 states: "the building blocks of the art market depend fundamentally 
on  quality  and  trust;  key  to  this  are  maintaining  reputation  and  credibility,  to  ensure 
longevity,  stability  and  resilience".  Painstakingly  developing  a  business  reputation  for 
decades  can  be  seriously  impacted  by  just  one  well-publicised  major  case  of  art  theft  or 
forgery. 

Conversely, cultural goods with well-documented provenance can always fetch higher prices 
on the market. 

As explained in Section 2.2, depending on the Member State of entry, scrutiny and controls 
on trade in cultural goods vary widely. This  uneven treatment of cultural goods that enter 
the EU brings discrimination amongst traders and buyers. It also brings uncertainty as to the 
applicable  law  and  to  the  licit  or  illicit  nature  of  the  trade  concerned.  Uncertainty  is 
detrimental to the licit art market, to the benefit of informal and criminal networks. 

3.3.4 Heavy administrative burden and cost is placed on EU customs 

The lack of a comprehensive control system at import at the EU external border renders the 
tasks of customs and cultural authorities in the Member States more difficult to carry out 
and their efforts ineffective, since even strong legislation in certain Member States can be 
easily  bypassed  by  unscrupulous  operators  choosing  a  different  entry  point.  This  is 
compounded  by  the  requirement  in  the  case  of  the  implementation  of  the  ad  hoc 
prohibitions  of  goods  originating  in  Iraq  and  Syria  to  prove  the  illicit  nature  of  the  import 
where customs may have doubts about the truthfulness of an importer's declaration. Such 
demonstration  is  in  practice  very  difficult  due  to  lack  of  expertise  and  customs  resources, 
lack of provisions pertaining to the detention of the goods and lack of provisions relating to 
penalties for false declarations. 

58 As compared to the final market prices for the artefacts, the tomb robbers receive not more than 1% of the total value, cf. N. Brodie, J. 
Doole, P. Watson, Stealing History: the illicit trade in cultural material, commissioned by ICOM UK and Museums Association, Cambridge, 
The McDonald Institute for Archaeological Research, 2000, p. 13.  
59 Particularly where the local inhabitants do not identify themselves with the culture or religion that the artefacts represent. 

19

 
 
 
                                                 
4. WHY SHOULD THE EUROPEAN UNION ACT  

In accordance with the Action Plan for strengthening the fight against terrorist financing, the 
Commission is to consider a wider response than at present, including a legislative initiative, 
to tackle illicit trade in cultural goods. 

Section 3 above discusses the problem of cultural goods introduced into the EU, which have 
illegally been extracted and exported from their source country. The main drivers leading to 
this  are:  on  the  one  hand,  the  inadequacy  of  standard  customs  controls  at  EU  borders  to 
deal with the specificity of trade in cultural goods even in the case of existing prohibitions 
currently applied by the EU on the import of cultural goods from Iraq and Syria; and, on the 
other  hand,  the  existence  of  a  patchwork  of  Member  State  legislations  applying  to  the 
import of cultural goods to their territory.  

While The Hague, UNESCO and UNIDROIT Conventions establish general principles relating 
to  the  trade  in  cultural  goods  and  the  protection  of  cultural  heritage,  there  exists  no 
international legislation that renders these principles operational. At the moment, with the 
exception  of  the  prohibitions  for  Iraq  and  Syria  that  have  been  established  at  EU  level  all 
other action is organised at Member State level.  

However, measures taken by Member States on their own initiative, as foreseen on the basis 
of Article 36 of the Treaty on the Functioning of the European Union (TFEU), i.e. with a view 
to protecting 'national treasures possessing artistic, historic or archaeological value', seem to 
be  more  suitable  for  the  protection  of  their  own  national  cultural  heritage.  National 
measures  fall  short  when  it  comes  to  preventing  the  entry  into  the  EU  of  cultural  goods 
illegally exported from a third country. Such goods may enter the Union through any point, 
including  where  no  control  specific  to  such  goods  is  foreseen.  This  uneven  treatment  by 
Member  States  of  cultural  goods  imported  into  the  Customs  Union  creates  incentives  for 
traders to bypass the strict national legislations applied by some Member States by choosing 
other  entry  points  in  Member  States  with  less  stringent  legislations  and  customs  controls 
when bringing cultural goods into the EU customs territory. It encourages criminals wishing 
to import in the EU cultural goods that have illicitly exited their countries of origin to do so 
by  using  the  more  vulnerable  routes.  It  also  discriminates  between  operators,  as  they  are 
subjected to different compliance requirements depending on the Member State of entry. 

The ineffectiveness of existing Member States legislation creates a necessity for action at EU 
level to ensure consistent treatment of imports of cultural goods all along the external EU 
borders.  The  EU  has  exclusive  competence  for  commercial  policy  and  for  customs 
legislation60  under  Articles  3  and  207  TFEU.  It  is,  therefore,  appropriate  that  any  required 
action to address the problems identified must be taken at EU level.  

Article  207  TFEU  empowers  the  European  Parliament  and  the  Council,  acting  by  means  of 
regulations  in  accordance  with  the  ordinary  legislative  procedure,  to  adopt  the  measures 
defining the framework for implementing the common commercial policy. Such is the case 
of Regulation (EC) No 116/2009 on the export of cultural goods which was adopted on the 
basis of Article 207 TFEU. 

60 In the case of customs cooperation under Article 33 TFEU, the Union shares the competence with the Member States. 

20

 
 
                                                 
Based  on  surveys  carried  out61  and  discussions  within  the  Expert  Group  on  customs  issues 
related to cultural goods62, Member States unanimously agree in principle on the need for EU 
action in this area. 

5. POLICY OBJECTIVES 

This  report  focusses  on  the  issue  of  cultural  goods  illicitly  exported  from  third  countries 
being  brought  into  the  EU.  It  does  not  cover  any  EU  action  relating  to  the  circulation  of 
cultural goods within the EU and to the restitution of seized goods to their rightful owners 
nor any EU activities, such as capacity building and other cooperation organised with third 
countries  with  a  view  to  helping  them  to  protect  their  cultural  heritage.  [Some  of  these 
aspects  are  discussed  in  a  separate  overall  Commission  Communication  on  illicit  trade  in 
cultural goods.]  

61 "Fighting illicit trafficking in cultural goods: analysis of customs issues in the EU", Study conducted for DG TAXUD, not published yet. 
62  Group  composed  by  expert  delegates  from  Member  State  administrations  to  assist  the  Commission  in  the  preparation  and 
implementation of relevant legislation. 

21

 
 
 
                                                 
The policy objectives relating to this initiative may be structured as follows: 

Objectives tree 

General objective 

Prevent the import and storage in the EU of cultural goods illicitly exported from a third country; 
thereby reducing trafficking in cultural goods, combatting terrorism financing and protecting cultural 
heritage, in particular in source countries affected by armed conflict 

Specific objectives 

(1) 
Establish a 
common 
definition of 
cultural goods in 
the context of 
importation 

(2) 
Ensure that EU 
buyers and 
importers exercise 
diligence regarding 
the legality of 
cultural goods 
brought into the EU 

(3) 
Determine 
standardised 
information 
regarding the 
identity of cultural 
goods brought 
into the EU 
(facilitation of 
customs controls) 

(4) 
Provide for more 
effective 
deterrents to 
trafficking in 
cultural goods 

(5) 
Promote active 
involvement of 
stakeholders in 
reducing 
trafficking 

Notes: 

1: A common definition is indispensable to create a common frame of reference for public 
authorities, businesses and buyers throughout the EU when it comes to the importation of 
cultural  goods.  The  definition  should  be  proportional  to  the  protection  needed  without 
impeding legitimate trade. 

2: Importers and buyers normally know the provenance of the goods they sell and buy. They 
are  therefore  in  the  best  position  to  exercise  diligence  regarding  the  legality  of  the  goods 
they bring in the EU. The burden of proof should not remain with customs authorities. 

3:  With  standardised  documentation  used  for  the  import  of  cultural  goods  into  the  EU, 
customs  can  perform  controls  more  effectively  and  efficiently,  therefore  also  facilitating 
trade. 

4: The initiative should deter Importers and buyers from engaging in illicit trade of cultural 
goods. 

5: Mobilising market operators and other stakeholders can make an important contribution 
to  the  prevention  of  import  and  storage  in  the  EU  of  cultural  goods  illicitly  exported  from 
their source country. 

22

 
 
 
6. POLICY OPTIONS 

The  policy  options  considered  under  this  initiative  are  discussed  in  relation  to  the  general 
policy objective of preventing the entry into the territory of the EU of cultural goods illicitly 
exported  from  a  third  country  and  in  relation  to  the  specific  objectives  also  identified  in 
Section 8.  

This Section discusses several options: 

- Firstly, the Baseline Scenario. 

-  Secondly,  a  grouping  of  soft-law  options  to  improve  capacities  and  foster  stakeholder 
goodwill and self-discipline (GROUPING A), and 

-  thirdly,  two  groupings  of  regulatory  options  addressing  two  important  elements:  on  the 
one hand, the appropriate definition of the scope of the cultural goods to be covered by the 
initiative (GROUPING B); and, on the other hand, the documentary requirements needed to 
certify the licit nature of the goods (GROUPING C). 

6.1 OPTION 0 - Baseline Scenario  

The  Baseline  Scenario  assumes  the  continuation  of  two  ad  hoc  measures  prohibiting  the 
import of certain cultural goods from Iraq and Syria (resp. Regulation (EC) No 1210/2003 and 
Regulation  (EU)  No  36/2012).  These have been taken in the broader restrictive framework 
established by the EU in respect of Iraq and Syria and in line with the relevant UN Security 
Council resolutions (see point 2.4 above). 

The Baseline Scenario also assumes the EU Member States would continue with their own 
national  legislations,  as  the  case  may  be,  regarding  the  import  of  cultural  goods  to  their 
territory (see point 2.2 above). 

6.2 GROUPING A - Soft-law options to improve capacities and foster stakeholder goodwill 
and self-discipline  

Active  involvement  of  stakeholders  can  make  an  important  contribution  to  achieving  the 
general  objective  stated  in  section  5  above.  Such  involvement  can  be  promoted  by  the 
recognition of codes of ethics or conduct and by raising awareness of stakeholders and the 
capacities of enforcement authorities. 

These approaches are presented in the following options A1 and A2 which are non-exclusive 
of one another. 

6.2.1  OPTION  A1  -  Endorsing  codes  of  ethics  or  conduct  established  by  art  market 
associations or museums 

Under this option the EU would endorse existing codes of ethics or conduct established by 
art  market  associations  or  museums,  through  e.g.  a  Commission  communication  or 
recommendation. 

The  two  internationally  most  pro-eminent  codes  are  the  UNESCO  International  Code  of 
Ethics for Dealers in Cultural Property63 and the ICOM Code of Ethics for Museums64.  

63  Adopted  by  the  UNESCO  intergovernmental  Committee  for  Promoting  the  Return  of  Cultural  Property  to  its  Countries  of  Origin  or  its 
Restitution  in  Case  of  Illicit  Appropriation  at  its  Tenth  Session,  January  1999  and  endorsed  by  the  30th  General  Conference  of  UNESCO, 
November 1999.  

23

 
 
                                                 
Codes  of  ethics  typically  cover  four  aspects  of  the  movement  of  cultural  goods:  the 
acquisition and disposal of goods and collections; the provenance of items and collections; 
the professional conduct of members; and the sanctions laid down in the event of violation 
of the rules.  

These  key  aspects  already  form  the  subject  of  specific  rules  in  major  international 
conventions. It should be noted, however, that one of the most notable functions served by 
these  codes  of  ethics  is  that  –  at  least  for  the  groups  of  operators  concerned  –  they  may 
render certain rules covered by international conventions applicable. 

The  institutional  character  of  the  Union  would  not  allow  it  to  subscribe  to  these  codes  of 
ethics  or  conduct  as  an  operator-member  of  the  professional  associations  concerned. 
However, the Union could opt to promote those norms and give them greater visibility and 
status by formally endorsing them. 

6.2.2  OPTION  A2  -  Raising  awareness  of  potential  buyers  and  of  customs  and  other 
enforcement authorities 

This  option  involves  the  organisation  by  the  EU,  alone  or  in  co-operation  with  Member 
States,  of  awareness-raising  campaigns  using  various  media  (printed  or  audio-visual)  to 
reach  potential  buyers  in  Europe  and  dissuade  them  from  acquiring  cultural  goods  when 
their  licit  provenance  is  in  doubt.  Awareness-raising  campaigns  may  inform  and  sensitise 
particular  categories  of  buyers  such  as  travellers  and  tourists  about  the  need  to  respect 
source country legislation at export as well as EU requirements at import and promote the 
idea that it is not socially acceptable to buy dubious cultural goods from foreign countries. 

This  option  also  involves  EU  and  Member  States  initiatives  to  strengthen  the  capacity  of 
customs  and  other  enforcement  authorities  in  tackling  the  entry  into  the  EU  of  cultural 
goods  illicitly  exported  from  third  countries.  This  would  involve  appropriate  training  of 
customs  officers  as  well  as  cultural  authorities'  officials  to  develop  relevant  expertise  and 
cooperation  between  them  at  Member  State,  EU  and  international  level  as  well  as  with 
market  stakeholders.  Such  actions  could  be  considered  for  financing  under  EU  sectoral 
programmes (e.g. customs, cultural, security). 

6.3 GROUPING B - Regulatory options regarding the definition of cultural goods  

For reasons of legal certainty, any EU regulatory measures will need to have a clearly defined 
scope of application, i.e. an appropriate definition of the goods to be covered. In the light of 
existing legislations, the aspects relating to such definition are the typology of the goods to 
be covered, their age and, in certain cases, their value. The typology that will be selected will 
be introduced into the legislation and will be translated into the Integrated Tariff (TARIC). 

Options B1 to B5 below are mutually exclusive. 

6.3.1 OPTION B1 - Definition used in the UNESCO 1970 Convention 

Article 1 of the UNESCO 1970 Convention (Box 1) defines a wide range of cultural goods by 
type  based  on  their  importance  for  archaeology,  prehistory,  history,  literature,  art  or 
science.  It  provides  for  a  minimum  age  limit  of  100  years  only  in  two  cases,  namely  for 

http://www.unesco.org/new/en/culture/themes/illicit-trafficking-of-cultural-property/legal-and-practical-instruments/unesco-
international-code-of-ethics-for-dealers-in-cultural-property/  
64 Approved in Seoul, 8 October 2004. http://archives.icom.museum/ethics.html  

24

 
 
                                                                                                                                                         
antiquities such as inscriptions, coins and engraved seals and for articles of furniture. It does 
not provide for minimum value limits: 

Box 1 
"Property which, on religious or secular grounds, is specifically designated by each State as 
being of importance for archaeology, prehistory, history, literature, art or science and which 
belongs to the following categories: 
(a)  Rare  collections  and  specimens  of  fauna,  flora,  minerals  and  anatomy,  and  objects  of 
palaeontological interest; 
(b) property relating to history, including the history of science and technology and military 
and social history, to the life of national leaders, thinkers, scientists and artist and to events 
of national importance; 
(c)  products  of  archaeological  excavations  (including  regular  and  clandestine)  or  of 
archaeological discoveries ; 
(d)  elements  of  artistic  or  historical  monuments  or  archaeological  sites  which  have  been 
dismembered;  
(e)  antiquities  more  than  one  hundred  years  old,  such  as  inscriptions,  coins  and  engraved 
seals;  
(f) objects of ethnological interest; 
(g) property of artistic interest, such as: 
(i)  pictures,  paintings  and  drawings  produced  entirely  by  hand  on  any  support  and  in  any 
material (excluding industrial designs and manufactured articles decorated by hand); 
(ii) original works of statuary art and sculpture in any material;  
(iii) original engravings, prints and lithographs ; 
(iv) original artistic assemblages and montages in any material; 
(h)  rare  manuscripts  and  incunabula,  old  books,  documents  and  publications  of  special 
interest (historical, artistic, scientific, literary, etc.) singly or in collections ; 
(i) postage, revenue and similar stamps, singly or in collections;  
(j) archives, including sound, photographic and cinematographic archives; 
(k) articles of furniture more than one hundred years old and old musical instruments." 

6.3.2 OPTION B2 - Definition used in the UNIDROIT 1995 Convention 

The  UNIDROIT  1995  Convention  defines  cultural  goods  in  exactly  the  same  manner  as  the 
UNESCO 1970 Convention but for one important difference: it does not include the words "is 
specifically designated by each State". As a result, the definition has a wider scope than that 
of the UNESCO 1970 Convention because it also includes cultural goods, such as products of 
clandestine  excavations,  which  are  not  specifically  designated  by  States  and  where  the 
State is not even aware of their existence, let alone their theft. 

6.3.3 OPTION B3 - Definition used in Regulation (EC) No 116/2009 on the export of cultural 
goods 

Regulation (EC) No 116/2009 on the export of cultural goods lists a broad range of cultural 
goods by type, i.e. category of objects, in its Annex I.A (Box 2). It has a similar scope to the 
previous definitions but is specific and precise to reflect EU Member States' needs for the 
protection  of  their  cultural  heritage.  For  most  of  the  categories  there  are  minimum  age 
limits.  In  its  Annex  I.B,  the  Regulation  further  specifies  minimum  value  limits  for  certain 
categories but not all (e.g. no minimum value limit is applied for archaeological objects): 

25

 
 
Box 2 
A. 
1. Archaeological objects more than 100 years old which are the products of: 

- excavations and finds on land or under water 
- archaeological sites 
- archaeological collections 

2. Elements forming an integral part of artistic, historical or religious monuments which have been 
dismembered, of an age exceeding 100 years 
3. Pictures and paintings, other than those included in categories 4 or 5, executed entirely by hand in 
any medium and on any material (1) 
4. Watercolours, gouaches and pastels executed entirely by hand on any material (1)  
5. Mosaics in any material executed  entirely by hand, other  than those falling in  categories 1 or 2, 
and drawings in any medium executed entirely by hand on any material (1) 
6.  Original  engravings,  prints,  serigraphs  and  lithographs  with  their  respective  plates  and  original 
posters (1) 
7. Original sculptures or statuary and copies produced by the same process as the original  (1), other 
than those in category 1 
8. Photographs, films and negatives thereof (1) 
9. Incunabula and manuscripts, including maps and musical scores, singly or in collections (1) 
10. Books more than 100 years old, singly or in collections 
11. Printed maps more than 200 years old 
12. Archives, and any elements thereof, of any kind or any medium which are more than 50 years old 
(2)  and  specimens  from  zoological,  botanical,  mineralogical  or  anatomical 
13.(a)  Collections 
collections; 

(b) Collections (2) of historical, palaeontological, ethnographic or numismatic interest 

14. Means of transport more than 75 years old 
15. Any other antique items not included in categories A.1 to A.14 

(a) between 50 and 100 years old 
toys,  games,  glassware,  articles  of  goldsmiths’  or  silversmiths’  wares,  furniture,  optical, 
photographic  or  cinematographic  apparatus,  musical  instruments,  clocks  and  watches  and  parts 
thereof, articles of wood, pottery, tapestries, carpets, wallpaper, arms 
(b) more than 100 years old 

(1) Which are more than 50 years old and do not belong to their originators 
(2)  As  defined  by  the  Court  of  Justice  in  its  judgment  in  Case  252/84,  as  follows:  ‘Collectors’  pieces 
within  the  meaning  of  heading  No  97.05  of  the  Common  Customs  Tariff  are  articles  which  possess 
the  requisite  characteristics  for  inclusion  in  a  collection,  that  is  to  say,  articles  which  are  relatively 
rare, are not normally used for their original purpose, are the subject of special transactions outside 
the normal trade in similar utility articles and are of high value’ 

B. Financial thresholds applicable to certain categories under A (in euro) 
Value: 
Whatever the value 
— 1 (Archaeological objects) 
— 2 (Dismembered monuments) 
— 9 (Incunabula and manuscripts) 
— 12 (Archives) 
15 000 
— 5 (Mosaics and drawings) 
— 6 (Engravings) 
— 8 (Photographs) 
— 11 (Printed maps) 
30 000 

26

 
 
 
 
— 4 (Watercolours, gouaches and pastels)  
50 000 
— 7 (Statuary) 
— 10 (Books) 
— 13 (Collections) 
— 14 (Means of transport) 
— 15 (Any other object) 
150 000 
— 3 (Pictures) 

6.3.4 OPTION B4 - Definition used in US legislation on the import of cultural goods (CPIA) 

With regard to the type of the goods covered, the US legislation on import of cultural goods 
implementing the UNESCO 1970 Convention (Box 3) covers a narrower range, namely only 
objects of archaeological and ethnological65 interest. It does not provide for minimum value 
limits, but sets out a minimum age limit of 250 years. 

Box 3 
(2) The term "archaeological or ethnological material of the State Party" means -  

(A) any object of archaeological interest;  
(B) any object of ethnological interest; or  
(C) any fragment or part of any object referred to in subparagraph (A) or (B); which was first 
discovered within, and is subject to export control by, the State Party. For purposes of this 
paragraph -  

(i) no object may be considered to be an object of archaeological interest unless such object -  

(I) is of cultural significance;  
(II) is at least two hundred and fifty years old; and  
(III)  was  normally  discovered  as  a  result  of  scientific  excavation,  clandestine  or  accidental 
digging, or exploration on land or underwater; and  

(ii) no object may be considered to be an object of ethnological interest unless such object is -  

(I) the product of a tribal or nonindustrial society, and  
(II)  important  to  the  cultural  heritage  of  a  people  because  of  its  distinctive  characteristics, 
comparative  rarity,  or  its  contribution  to  the  knowledge  of  the  origins,  development,  or 
history of that people. 

6.3.5 OPTION B5 – A wide typology of goods narrowed down by an age threshold 

While  options  B.1,  B.2  and  B.3  define  a  wide  typology  of  goods,  option  B4  reduces  the 
material scope by using the narrow typology of archaeological and ethnological goods and 
by applying a 250 years minimum age threshold. 

An  intermediate  option  combining  a  wide  typology66  with  a  restrictive  minimum  age 
threshold is also worth considering. This intermediate option (B5) combines the typology of 
UNIDROIT 1995 definition with a more restrictive age threshold. Under this option the age 
threshold could initially be set at 250 years, as is in the case of current US legislation. This 
threshold  could  be  made  adjustable  by  means  of  implementing  act  to  take  account  of 
experience  in  implementation  and  of  changing  circumstances  in  the  illicit  trade  of  cultural 
goods. 

65 Defined as the product of a tribal or nonindustrial society and important for the cultural heritage of a people. 
66 However, it is worth noting that Switzerland whose legislation is also presented under point 2.3 above applies the UNESCO definition, i.e. 
option B1. 

27

 
 
                                                 
6.4 GROUPING C - Regulatory options regarding the documentation needed to certify the 
licit nature of the goods  

Having  defined  the  scope  of  the  cultural  goods  to  be  covered,  it  is  equally  important  to 
determine the procedure through which importers will be able to bring cultural goods into 
the  EU  including  storage  in  free  zones.  Such  procedures  would  need  to  define  (a)  the 
documentation required for customs to be satisfied that the goods have not been exported 
illegally from the source country, (b) any other requirements to deter trafficking and (c) the 
conditions for detention or confiscation of the goods. 

Options C1 to C4 below are mutually exclusive. 

6.4.1  OPTION  C1  -  Requirement  on  importers  to  present  a  copy  of  the  export  certificate 
issued in the source country 

Under this option, a person who seeks to introduce cultural goods into the EU67 would have 
to present the export certificate issued in the source country on the basis of that country's 
legislation. This certificate would accompany the standard import declaration. 

An export authorisation, usually called 'export certificate' or 'export licence', is issued by the 
designated  competent  authorities  of  the  country  where  the  cultural  good  is  lawfully  and 
permanently  located  (i.e.  not  just  transiting  or  being  transhipped)  before  it  can  be  legally 
exported to another country (in this case, dispatched to the territory of the EU). An export 
certificate  is  a  standardised  document  which  serves  as  proof  of  compliance  with  the  laws 
and regulations of a country regarding its cultural heritage.  

At  international  level,  State  Parties  to  the  UNESCO  1970  Convention  are  requested68  to  (a) 
introduce appropriate certificates in which the exporting State would specify that the export 
of the cultural property in question is authorised and (b) prohibit the exportation of cultural 
property  unless  accompanied  by  such  an  export  certificate.  Among  the  respondents  to  a 
UNESCO survey69 around 91% reported that their legislation contained export controls, while 
more  than  30  countries  confirmed  that  export  certificates  were  mandatory  for  a  cultural 
good to exit lawfully their territory.  

Export legislations, however, differ considerably in scope and content, according to UNESCO. 
It  has  also  become  apparent  that,  while  authorisation  is  usually  required  for  the  export  of 
cultural property that is not banned from export, export certificates in line with the UNESCO-
WCO Model Export Certificate or similar models are not always in use.  

The  Model  Export  Certificate  form70  was  developed  by  UNESCO  and  the  World  Customs 
Organisation  (WCO)  in  2005.  The  most  significant  advantage  of  using  standardised 
certificates is that customs officers, whatever their mother tongue, will find the same kind of 
information in the same place.  

Under  this  option,  third  countries  signatories  of  the  UNESCO  1970  Convention  which  have 
established  an  export  certification  system,  such  as  Cambodia,  South  Africa,  Argentina, 

67 For release for free circulation but also for placing under a special customs procedure (e.g. free zone). It would be however inappropriate 
to include goods in transit in this context as this would considerably complicate customs action as well as international trade flows. Where 
such movements are suspected to be related to criminal or terrorist networks, customs action would still be possible in accordance with 
Member State legislation enacting Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating 
terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (OJ L 88, 31/3/2017, p. 
6). 
68 Article 6, paragraphs (a) and (b) 
69 Survey organised by UNESCO addressed to all State Parties of the Convention and administered from November 2013-January 2014, with 
over half of State Parties responding (66 responses received, response rate of 53%).  
70 http://unesdoc.unesco.org/images/0013/001396/139620E.pdf (See also Annex 11) 

28

 
 
                                                 
Myanmar, Bosnia and Herzegovina, Niger, would request from the EU to allow the import of 
cultural goods from their country only when accompanied by a valid export certificate issued 
by the designated competent authorities of the third country in question. EU customs would 
therefore  require  from  importers  to  present  a  copy  of  this  certificate  together  with  the 
import declaration. 

It has to be noted that a document issued by foreign authorities would be prone to abuse if 
EU  customs  have  no  means  to  verify  its  authenticity  and  the  accuracy  of  the  information 
contained  therein.  For  this  reason  it  is  a  prerequisite  for  any  certification  system  used  in 
international trade to include an undertaking71 by the issuing country's authorities to provide 
administrative  assistance  to  the  authorities  of  the  importing  country.  When  EU  customs 
need  to  perform  controls  and  ask  for  verification  in  the  context  of  customs  risk 
management,  they  need  to  be  able  to  request  and  obtain  the  assistance  of  the  third 
country's  competent  authorities.  For  this  reason,  the  request  of  the  third  country  would 
have  to  be  accompanied  by  an  undertaking  to  communicate  specimens  of  the  export 
certificate or licence used and the names and stamps of the issuing competent authorities, 
as well as to provide administrative cooperation to EU customs whenever the latter would 
need to verify the authenticity and accuracy of the certificate. 

Pending the results of the request for administrative cooperation the release of the goods 
would be suspended. 

Where an export certificate is not foreseen by the source country, no documentation would 
be required from importers. This option would therefore have a limited geographical scope, 
corresponding to countries using an export certification system who would have moreover 
requested  the  EU  to  make  imports  of  cultural  goods  from  their  country  conditional  upon 
presentation of a copy of the relevant export certificate. 

6.4.2 OPTION C2 - Requirement to submit an importer’s statement for all goods concerned 

Under this option, a person who seeks to introduce cultural goods into the EU72 would have 
to sign a standardised statement (affidavit) stating that the cultural object in question has 
been  exported  from  the  third  country  in  accordance  with  its  laws  and  regulations.  This 
would accompany the standard import declaration. 

A standardised document describing the cultural good in enough detail for it to be identified 
by customs would be attached to the statement.  

Standardised information requirements and forms are important because they (a) guarantee 
that  the  minimum  necessary  information  is  always  submitted  and  (b)  facilitate  customs 
controls  because  officers  can  know  which  field  of  the  form  corresponds  to  what  kind  of 
information, even if the form has been completed in a foreign language. In this sense, the 
Object  ID73  standard  is  considered  an  appropriate  accompanying  document  within  the 
context of this option. 

71 In the form of a Memorandum of Understanding or similar agreement between administrations. 
72 For release for free circulation but also for placing under a special customs procedure (e.g. free zone) other than transit. 
73 UNESCO Operational Guidelines, Point 36, pg. 11 (See Annex 10): 
Regarding  movable  cultural  property  in  museums  and  religious  or  secular  public  monuments  or  similar  institutions,  including  legally 
excavated archaeological sites and objects of ethnological interest, the usage of the Object ID Standard is recommended. The Object ID 
Standard  facilitates  rapid  transmission  of  basic  information  on  lost  and  stolen  cultural  objects.  The  Standard  provides  for  eight  key 
identifying elements which, together with a photograph, make the identification of an object and its tracking much simpler. States Parties 
which do not have extensive inventories and need to elaborate them quickly to make use of the international procedures now available for 
tracking cultural objects are now encouraged to use the Object ID Standard. 

29

 
 
                                                 
The Object ID is an international standard for describing cultural objects74. It is the result of 
years  of  research  in  collaboration  with  the  museum  community,  international  police  and 
customs agencies, the art trade, insurance industry, and valuators of art and antiques. The 
Object ID project was initiated by the J. Paul Getty Trust and the standard was launched in 
1997. It is being promoted by major law enforcement agencies, including the FBI, Scotland 
Yard  and  Interpol,  UNESCO,  museums,  cultural  heritage  organisations,  art  trade  and  art 
appraisal organisations, and insurance companies. It has also been endorsed by UNESCO as 
the international standard for recording minimal data on movable cultural property, which 
should be used to the fullest extent possible by all signatory States. 

The Object ID is known and used by many Member States75 for cataloguing objects in digital 
databases  by  their  specialised  police  units,  as  a  rapid  means  to  communicate  information 
and as inspiration for setting minimum information requirements for museums. 

The  Object  ID  standard  requires  at  least  one  good  quality  photograph  and  detailed 
information  on  the  type  of  cultural  good;  materials  and  techniques  used;  measurements; 
inscriptions  and  markings;  distinguishing  features;  title  (if  known);  subject;  date  or  period; 
maker (if known). The standard finally recommends adding a short description of the object.  

Under this option, EU customs receive the signed statement and the accompanying Object 
ID form, check if all formal documentary requirements are met, register the object (i.e. date 
it and assign it a serial number) and keep a copy of both documents.  

Customs,  if  they  have  doubts76  about  the  real  provenance  or  the  claims  made  in  the 
statement and attached document by the importer, may suspend the release. During a set 
time  period77,  the  importer  would  have  the  possibility  to  provide  documentary  evidence 
supporting his claims. 

Under  this  option,  there  may  also  be  a  possibility  to  use  electronic  copies  which  can  be 
stored in a searchable database containing the statements and Object ID forms submitted by 
importers. This could improve the traceability of the objects and would allow, in the future, 
for  customs  and  other  law  enforcement  authorities  to  access  the  information  stored  and 
apply appropriate risk analysis at importation. 

6.4.3 OPTION C3 - Requirement to obtain an import licence for all goods concerned 

Under  this  option,  a  person  who  seeks  to  introduce  cultural  goods  into  the  EU  territory 
would have to obtain an import licence. 

An import licence is an official document that would be issued by EU authorities designated 
for  this  purpose  by  the  Member  States78,  following  a  request  by  the  person  who  seeks  to 
import cultural goods in the EU. The import licence would authorise the entry of the cultural 
goods in question into the EU. 

The  importer-applicant  would  have  to  provide  the  EU  competent  authority  with  all  the 
information  and  documents  supporting  his  application  for  import  authorisation  and 
demonstrating the legality of export from the third country, e.g. export certificates issued by 

74 See Annex 12. 
75  Bulgaria;  Poland;  Finland;  Czech  Republic;  Romania;  UK;  Belgium;  Cyprus;  Greece;  the  Netherlands;  Estonia;  Norway.  Italy  uses  a 
compatible description in their Carabinieri website. 
76 E.g. based on principles of customs risk management or information received from specialised law enforcement units. 
77 In the US legislation it is 90 days. 
78 The same authorities (departments of Ministries of Culture in the Member States or similar) which currently examine and issue export 
licences for EU cultural goods in the framework of Regulation 116/2009. 

30

 
 
                                                 
the  third  country  authorities, 
documents, other proof supporting the licit provenance, etc. 

invoices,  titles  of  ownership,  transport  or 

insurance 

In the absence of the import licence the declaration would not be validated by customs and 
the goods would remain blocked in a warehouse. 

6.4.4  OPTION  C4  -  Requirement  to  obtain  an  import  licence  for  archaeological  finds  and 
elements of monuments and to submit an importer’s statement for other goods 

Under this option, a distinction would be made between archaeological finds and elements 
of  artistic,  historical  or  religious  monuments  (i.e.  heritage  endangered  by  pillaging  and 
theft) and other cultural goods. 

As  in  the  case  of  Option  C3,  a  person  who  seeks  to  introduce  into  the  EU  archaeological 
goods  and  elements  of  monuments  would  have  to  obtain  an  import  licence  issued  by  the 
national  competent  authority  designated  for  this  purpose  by  the  Member  State  of  entry. 
Likewise,  the  importer-applicant  would  have  to  provide  the  said  competent  authority  with 
all the information and documents supporting his application and demonstrating the legality 
of export from the third country. 

For other cultural goods as in the case of Option C2, the person who seeks to introduce such 
goods into the EU would have to submit a signed statement accompanied by an Object ID 
stating  that  the  cultural  object  in  question  has  been  exported  from  the  third  country  in 
accordance  with  its  laws  and  regulations.  Similarly,  this  could  be  supported  by  the 
establishment of an electronic database. 

7. IMPACT OF POLICY OPTIONS 

In  the  following  section,  the  impact  of  the  identified  policy  options  is  examined  and 
compared  in  terms  of  effectiveness,  i.e.  ability  to  achieve  the  set  objectives;  efficiency  in 
terms of operational and compliance cost for stakeholders; coherence with existing policies 
and instruments and, where relevant, proportionality. 

Due  to  the  lack  of  detailed  subheadings  in  the  customs  nomenclature  for  cultural  goods, 
available statistical, and thus quantitative, data are limited and lack the desirable precision. 
Chapter 97 of the Harmonised System covering 'works of art, collectors' pieces and antiques' 
does  not  contain  enough  subdivisions  to  allow  the  collection  of  trade  data  for  specific 
categories of cultural goods79. As a result, the assessment that follows is mostly qualitative. 

The  analysis  takes  into  consideration  the  points  of  view  and  positions  expressed  by 
stakeholders  (citizens,  enterprises  and  associations  thereof,  public 
institutions  and 
authorities  and  civil  society),  in  particular  within  the  framework  of  an  Open  Public 
Consultation (OPC) conducted by the Commission80. All the options under consideration are 
unrelated to and are not expected to have any environmental impact. 

79  As  an  example,  archaeological  goods  are  classified  under  the  same  heading  9705  with  objects  of  zoological,  botanical,  mineralogical, 
anatomical,  paleontological,  historical,  ethnographic  or  numismatic  interest.  Furthermore,  the  collection  of  import  data  is  based  on  the 
value of the cultural goods, not per unit. For this reason, it is impossible to determine with certainty the number of imports the amount 
involves  and  how  many  times  would  EU  customs  be  called  to  process  formalities  or  competent  authorities  to  examine  import  licence 
applications or operators would need to prepare documentation. An import value of 100 million could theoretically represent one single 
import of a very valuable painting or 100,000 imports of articles of an average value of 1000 euro. 
80 For a more detailed overview please refer to Annex 2 of the IA report. 

31

 
 
 
 
 
                                                 
In the comparative tables at the end of each grouping section, the options are graded from 0 
to  3,  depending  on  how  well  they  perform  in  comparison  to  the  baseline  scenario.  The 
baseline  scenario  is  graded  zero,  1  =  fair;  2  =  good;  3  =  very  good.  The  highest-ranking 
options are highlighted in green. 

7.1 OPTION 0 - Baseline Scenario  

Under  this  scenario  the  problem  would  remain  and  possibly  be  magnified  as  explained  in 
SECTION 3. 

The demand in Europe – one of the world's biggest markets – for cultural goods from third 
countries  would  continue  to  provide  impoverished  populations  with  a  supplement  to  their 
income but this resource is not renewable or sustainable. 

The uncertainty regarding the provenance of the goods would continue to plague the licit art 
and antiques market in the EU, which is dependent on good reputation and credibility. 

Trafficking  in  illicit  cultural  goods  would  continue  to  foster  the  organised  crime  networks 
that  bring  the  goods  into  the  EU  and  would  continue  to  represent  a  threat  to  the  public 
order  in  all  the  countries  concerned:  the  source  countries,  the  transit  countries  and  the 
destination countries in the EU. 

Terrorists and other warring factions would continue to gain income from this illicit trade to 
finance their activities abroad and in the EU. 

The  uneven  import  provisions  across  the  EU  would  mostly  continue  to  hinder  individual 
efforts by the Member States to regulate imports. Buyers of cultural goods in the EU would 
continue  to  be  treated  differently  depending  on  which  Member  State  they  reside  in.  The 
persisting  lack  of  provenance  requirements  would  continue  to  benefit  unscrupulous 
operators who manage to pass fake cultural goods as genuine. 

From the point of view of applying the current legislation on imports by customs, the partial 
coverage  –  only  imports  from  Iraq  and  Syria  are  regulated  –  would  continue  to  be  a 
hindering factor for the efforts of EU customs. 

Finally,  the  Union  would  fail  to  prevent  goods  illegally  exported  from  source  countries 
entering the EU market, to the detriment of world cultural heritage. 

Stakeholders  position:  The  position  of  respondents  to  the  Open  Public  Consultation  (OPC) 
with regard to whether the EU should adopt customs rules to prevent and deter imports of 
illicit cultural goods differs notably, depending on the category of respondents: 

While 63% of enterprises and 66% of interest representatives are not favourable to the EU 
taking  any  measures,  99%  of  NGOs  and  representatives  of  civil  society  and  90%  of 
respondents from public authorities consider that the Union should adopt customs controls 
at the importation of cultural goods. This reflects concerns of economic operators about the 
compliance cost that the adoption of measures might represent for their business, while civil 
society and public authorities seem to prioritise the safeguarding of cultural heritage and the 
rule of law. 

Social impact: 

The  baseline  scenario  will  not  limit  risks  to  security,  will  not  decrease  crime  or  reduce 
terrorist financing from trafficking in cultural goods. It is more likely that these phenomena 

32

 
 
 
will  intensify.  Nor  will  law  enforcement  capacity  to  address  criminal  activity  (including  tax 
in  cultural  goods  be 
evasion,  money 
strengthened. If measures are not taken to tackle the problem from the demand side, more 
and  more  artefacts  will  be  irretrievably  lost  to  their  source  countries  and  to  archaeology, 
history, science and education, as they are removed from their cultural context.  

laundering  and  corruption)  related  to  trade 

Subsistence  diggers  in  third  countries  –  many  of  which  are  developing  countries  –  may 
temporarily  benefit,  but  since  cultural  goods  are  not  a  renewable  resource,  those  local 
populations  will  lose  in  the  long  run  the  potential  to  develop  the  more  economically 
sustainable  income  source  that  is  cultural  tourism.  Terrorist  and  warring  factions  who  are 
ideologically hostile to the remnants of past civilisations and cultures will succeed further in 
erasing the history and cultural identity of the affected local populations. 

Economic impact: 

In the absence of effective deterrents, unscrupulous operators, organised crime middlemen 
and  looters  and  thieves  in  the  source  countries  will  continue  to  benefit  and  enrich 
themselves.  The  current  economic  benefits  of  this  kind  of  trade  cannot  be  considered 
relevant and warranted. 

OPTIONS 

Effectiveness 

Efficiency 

Coherence 

Zero - Baseline scenario 

0 

0 

0 

7.2 GROUPING A - Soft-law options to improve capacities and foster stakeholder goodwill 
and self-discipline 

Action within this grouping would particularly address Specific Objectives No 2 and 5, namely 
encouraging due diligence by traders and promoting active involvement of stakeholders. 

7.2.1 OPTION A1 - Endorsing codes of ethics or conduct established by associations of the 
art market or museums  

Effectiveness: An official endorsement by the EU of international codes of ethics or conduct, 
such as the ICOM Code of Ethics for Museums or the UNESCO International Code of Ethics 
for Dealers in Cultural Property, would promote them and give them greater visibility. The 
endorsement can be done through a non-binding act such as a Commission communication 
or recommendation. 

Rules of conduct or codes of ethics for business operators and professionals in the market 
of cultural goods are non-binding and do not enjoy the enforceability that is characteristic of 
legal rules, but they can contribute to improve market conditions. In the majority of cases, 
they  are  instruments  of  self-discipline  of  those  associated  with  or  belonging  to  the 
professional category concerned. 

The main weakness with international codes of ethics or conduct would lie in the sanctions 
laid down for violation of the rules: these sanctions are rarely applicable, which might even 
have an adverse effect on the level of effectiveness of the codes of conduct. In practice, not 

33

 
 
 
 
only is suspension from the association or the loss of membership status rarely provided for, 
but there is also often no indication of the procedures by which violations are established81. 

This  is  further  complicated  by  the  fact  that  it  is  difficult  to  provide  for  sanctions  at 
international  level,  especially  if  the  code  is  adopted  by  bodies  unable  to  exercise  any 
effective power over those to whom the rules are addressed, as is the case with ICOM. 

Furthermore,  such  voluntary 
instruments  are  unlikely  to  modify  the  behaviour  of 
unscrupulous  operators  and  to  effectively  deter  organised  crime,  to  have  an  effect  on 
persons  who  use  cultural  goods  transactions  to  evade  taxation  or  to  launder  money  and 
even less so on terrorists looting cultural goods in third countries to finance their activities. 

A  set  of  non-binding  rules  cannot  be  subject  to  rigorous  monitoring  and  it  would  be  very 
difficult to ascertain compliance of operators.  

Overall,  this  option  could  partially  achieve  the  specific  objective  of  promoting  stakeholder 
involvement in reducing trafficking in cultural goods. However, it would have little deterrent 
effect  and  would  fall  very  short  of  achieving  the  general  objective  set  out  in  Section  5  (cf. 
Objectives tree).  

Efficiency:  Formal  endorsement  of  international  codes  of  ethics  would  not  require  any 
expenditure  from  public  authorities.  It  would  however  require  additional  efforts  by  the 
relevant  associations  to  monitor  implementation,  discipline  the  market  actors  and  ensure 
transparency. 

Coherence: From the point of view of coherence with existing policies and instruments, the 
promotion  of  codes  of  ethics  or  codes  of  conduct  seems  relevant,  but  mostly  as  an 
accompanying measure or follow-up to more robust instruments which directly address the 
problem of illicit cultural goods entering the EU. 

Stakeholders  position:  In  the  OPC,  at  least  half  of  the  art  market  and  museums 
representatives  considered  EU  endorsement  of  codes  of  conduct  an  appropriate  measure 
(ranking  third,  same  as  training  for  customs  officers)  and  62%  of  respondent  NGOs  and 
representatives  of  civil  society  also  find  it  appropriate  (again,  ranking  third,  together  with 
the  training  customs  agents  option).  The  other  categories  of  respondents  (citizens,  public 
authorities, ‘other’) did not select this option among their top three favourites.  

Social impact: 

As  explained  above,  the  impact  of  more  effective  self-regulation  would  be  positive  in 
promoting  accepted  behaviour  by  the  operators  concerned,  however,  because  of  their 
voluntary nature the actual effect of such norms could be limited.  

Economic impact:  

This option would not be expected to have any particular trade and economic impact. 

7.2.2  OPTION  A2  -  Raising  awareness  of  potential  buyers  and  of  customs  and  other 
enforcement authorities 

Effectiveness: Awareness-raising campaigns could contribute to informing potential buyers 
and educating the public with the objective of gradually influencing and changing consumer 
attitudes ('peer pressure').  

81 Study on preventing and fighting illicit trafficking in cultural goods in the European Union. Final Report October 2011.  
http://www.do.etat.lu/voyages/Report_Trafficking_in_cultural_goods_EN.pdf  

34

 
 
                                                 
Actions  to  educate  and  inform  potential  buyers  and  influence  public  opinion  have  been 
undertaken  with  good  results  for  trade  in  other  goods  which  are  either  considered  as 
endangered  (e.g.  wildlife  conservation  in  the  context  of  the  Convention  on  International 
Trade in Endangered Species of Wild Fauna and Flora – CITES82) or are suspected to be traded 
by  rebel  groups  or  their  allies  to  fund  conflict  against  legitimate  governments  and,  in  that 
way,  contributing  to  geopolitical  instability  (e.g.  'conflict  diamonds'  –  the  Kimberley 
Process83).  Similar  awareness  raising  actions  directed  at  traders,  travellers  and  customs 
authorities have been undertaken in respect of the protection of intellectual property rights 
and the cross-border movements of cash. 

A  certain  number  of  collectors  in  the  destination  countries  buy  cultural  goods  from  third 
countries  for  reasons  of  social  prestige.  If  the  opinion  was  nurtured,  in  the  mind  of  the 
collector and in society at large, that it is not socially acceptable to indirectly contribute to 
the  plunder  of  archaeological  sites  and  the  financing  of  organised  crime  and  terrorists, 
perhaps the popularity and the demand for such items would lessen.  

Similarly,  raising  awareness,  expertise  and  capacity  of  customs  and  other  enforcement 
authorities in the Member States could also make an important contribution to deter illicit 
trade and at the same time would facilitate legitimate international trade in cultural goods. 

Overall,  this  option  could  partially  achieve  the  specific  objective  of  promoting  stakeholder 
involvement in reducing trafficking in cultural goods. It would also strengthen deterrence by 
sensitising  buyers  and  by 
improving  capacities  of  customs  and  other  enforcement 
authorities.  However,  it  would  fall  well  short  of  achieving  the  general  objective  set  out  in 
Section 5 (cf. Objectives tree). 

Efficiency:  Apart  from  the  cost  of  launching  and  running  such  awareness  campaigns  and 
training  actions,  no  other  expense  is  foreseen  as  the  measure  would  not  create  any 
obligations. The costs of awareness raising campaigns and capacity building actions would be 
moderate  compared  to  their  expected  impact.  As  an  example,  an  awareness-raising 
campaign  that  was  organised  in  2011  for  cash  controls  (informing  travellers  entering  or 
leaving  the  EU  with  €10,000  or  more  of  the  need  to  declare  it)  cost  around  €500,000  and 
reached  an  estimated  number  of  147  million  people.  It  included  adverts  in  in-flight 
magazines; alternative advertising in airports, a video clip on in-flight screens and on airport 
screens, online banners on Tripadvisor, embassy, travel agency and airport websites, posters 
and displays at customs desks, airports, railway stations and ports and distribution of leaflets 
in  airports  and  embassies.  The  campaign  was  organised  in  cooperation  with  the  Member 
States.   

Coherence:  This  option  would  not  dissuade  suppliers  of  the  illicit  market,  who  would 
continue to bring illicit cultural goods into the Union as long as they consider it a profitable 
market. However it would sensitise buyers, except for those who purchase cultural goods for 
reasons other than social prestige. It may also be noted that training and capacity building 

82 CITES  (the Convention on International Trade in Endangered Species  of Wild Fauna and Flora) is an international agreement between 
governments. Its aim is to ensure that international trade in specimens of wild animals and plants does not threaten their survival. CITES 
was drafted as a result of a resolution adopted in 1963 at a meeting of members of IUCN (The World Conservation Union). The text of the 
Convention was agreed at a meeting of representatives of 80 countries in Washington, D.C., on 3 March 1973, and on 1 July 1975 CITES 
entered in force. CITES has 183 members (182 countries and the EU). 
83 The Kimberley Process Certification Scheme (KPCS) is the process established in 2003 to prevent "conflict diamonds" from entering the 
mainstream  rough  diamond  market  by  United  Nations  General  Assembly  Resolution  55/56  following  recommendations  in  the  Fowler 
Report. The Kimberley Process started when Southern African diamond-producing states met in Kimberley, South Africa, in May 2000, to 
discuss ways to stop the trade in ‘conflict diamonds' and ensure that diamond purchases were not financing violence by rebel movements 
and their allies seeking to undermine legitimate governments. 

35

 
 
 
                                                 
for  customs  and  other  enforcement  officers  would  be  more  relevant  when  linked  to  the 
enforcement of regulatory measures. 

Stakeholders position: In the OPC, this option was favoured mainly by citizens, enterprises 
and  representatives  of  professional  associations.  It  was  not  selected  among  the  top  three 
choices by NGOS and the civil society, public authorities or 'other' respondents. This may be 
explained  by  the  fact  that  the  first  three  categories  of  respondents  did  not  foresee  any 
negative  economic  impact  of  such  awareness  campaigns  on  their  business84.  As  indicated 
above under option A1, organising training for customs and other law enforcement officers 
was considered highly relevant and supported by most categories of respondents. 

Social impact: 

This option would render the public better informed about the issue of trafficking in cultural 
goods  and,  hopefully,  influence  attitudes  of  certain  buyers,  making  them  more  aware  of 
indirect consequences of acquiring unprovenanced or insufficiently provenanced artefacts. 

Economic impact: 

This option would not be expected to have any particular trade and economic impact. 

OPTIONS 

Effectiveness 

Efficiency 

Coherence 

A1 - Endorsing code of 
ethics or conduct 

A2 – Raising awareness of 
potential buyers and of 
customs and other 
enforcement authorities 

1 

2 

1 

2 

1 

1 

7.3.  GROUPING  B  -  Regulatory  options  regarding  the  appropriate  definition  of  cultural 
goods  

Under all of the options, the delimitation of the material scope of the measure is essential 
for achieving a level playing field in the EU with regard to importation. This would directly 
implement  the  specific  objective  "establish  a  common  definition  of  cultural  goods  in  the 
context  of  importation"  and,  in  that  manner,  also  contribute  to  the  achievement  of  the 
general objective. The achievement of establishing a common definition (objective 1) must 
be assessed with regard to the protection needed, without impeding legitimate trade.  

Social impact: 

The  social  impact  of  each  of  the  options  within  this  grouping,  in  particular  as  regards 
criminality  and  terrorism  financing,  is  commensurate  to  their  respective  effectiveness  in 
addressing  the  general  objective  set  out  in  Chapter  5  (cf.  Objectives  tree)  as  specifically 
assessed below under each of the options. 

84 To be noted: certain enterprises [also] responded to the OPC as 'individual citizens'. 

36

 
 
 
 
                                                 
7.3.1 OPTION B1 - Definitions used in the UNESCO 1970 Convention 

Effectiveness:  This  option  would  partially  achieve  the  specific  objective  of  establishing  a 
common definition of cultural goods which is proportional to the protection needed without 
impeding  legitimate  trade.  It  would  contribute  to  achieving  the  general  objective  set  in 
Section 5 (cf. Objectives tree). 

This  definition  is  the  most  widely  known  in  the  world  (the  UNESCO  1970  Convention 
currently numbers 131 signatory States, of which 25 are EU Member States). As indicated in 
Section 2.1, each State may apply its own particular focus for the protection of its cultural 
heritage. 

A weakness in this definition is that it covers cultural property that is specifically designated 
as such by a State, therefore undesignated artefacts, e.g. from illicit excavations, may not be 
covered. Taking account of this aspect, this option would be only partially effective. 

Efficiency:  As  this  definition  is  the  most  widely  known  definition  of  cultural  goods 
worldwide, its implementation by customs and cultural authorities in the EU should not be 
problematic. However, applying no age or value limits could result in subjecting a potentially 
unmanageable number of incoming cultural goods to customs control and, therefore, create 
high costs for operators and public administrations alike. 

Coherence:  Considering  that  the  source  countries  are  third  countries,  an  international 
definition  such  as  that  in  the  UNESCO  1970  Convention  would  be  a  coherent  and  obvious 
choice. 

Proportionality: Applying this definition without additional age or value limits could hamper 
international trade in goods. 

Stakeholders  position:  Although  the  question  was  not  directly  put  in  the  OPC,  several 
respondents have recommended the choice of the UNESCO 1970 Convention definition. 

Economic  impact:  This  option  refers  to  a  very  wide  scope  of  application,  which,  if  not 
otherwise limited, could have a negative impact on trade. The same would apply from the 
point  of  view  of  impact  on  administrations:  depending  on  the  option  selected  for 
documentary  requirements,  customs  could  be  called  to  control  a  very  large  number  of 
shipments and competent cultural authorities could be called to examine a great number of 
applications for import licences. 

7.3.2 OPTION B2 - Definitions used in the UNIDROIT 1995 Convention 

Effectiveness:  This  option  would  partially  achieve  the  specific  objective  of  establishing  a 
common definition of cultural goods which is proportional to the protection needed without 
impeding legitimate trade. It would contribute to the achievement of the general objective 
set out in Section 5 (cf. Objectives tree).  

The  UNIDROIT  1995  Convention  definition  has  the  same  advantages  as  the  UNESCO  1970 
Convention  definition,  without  the  disadvantage  of  covering  only  the  cultural  heritage 
'specifically designated as such' by the signatory States, i.e. it can cover cultural goods from 
clandestine excavations or thefts of which the source country may be unaware. By covering 
the full range, this option would be highly effective. 

Efficiency: Same as for option B1. 

Coherence: same as for option B1. 

37

 
 
Proportionality:  While  this  option  addresses  an  important  gap  compared  to  option  B1, 
applying it without any age or value limit would have a similar effect as option B1. 

Stakeholders position: The support for the definition in UNESCO 1970 expressed in the OPC 
may be considered as equally relevant for the UNIDROIT 1995 definition. 

Economic impact: Similar to option B1. 

7.3.3  OPTION  B3  -  Definitions  used  in  Regulation  (EC)  No  116/2009  on  the  export  of 
cultural goods 

Effectiveness:  This  option  would  partially  achieve  the  specific  objective  of  establishing  a 
common definition of cultural goods which is proportional to the protection needed without 
impeding legitimate trade. It would contribute to the achievement of the general objective 
set out in Section 5 (cf. Objectives tree). 

As this definition is specifically designed for exports from the EU, its relevance on the import 
side  may  be  questionable.  This  is  because  the  specific  criteria  used  for  EU  exports  can  be 
very  different  from  those  used  by  source  countries  in  protecting  their  cultural  heritage  in 
accordance with the UNESCO 1970 Convention.  

Efficiency:  Competent  authorities  in  the  Member  States  are  familiar  with  the  types  of 
objects  in  the  listed  categories  and  this  is  an  advantage.  However,  the  minimum  age 
requirements (e.g. 50 years of age is required for works of art) would result in a high number 
of imported articles falling within the scope of this initiative. This would imply a high burden 
for customs, cultural authorities and importers in terms of human resources, expertise and 
compliance costs. 

Coherence: Although a known frame of reference for authorities and traders in the EU, this 
definition stemming from EU legislation may differ from the legislation of source countries 
whose cultural heritage this initiative is expected to protect. 

Proportionality: While the minimum age and value limits narrow down the material scope of 
the  Regulation,  this  option  may  not  a  priori  be  adapted  to  the  needs  of  source  countries 
whose cultural heritage this initiative is expected to protect. 

Stakeholders  position:  Overall,  Member  States  and  EU  exporters  consider  the  definition 
satisfactory  on  the  export  side.  The  minimum  age  limits  of  the  Regulation  are  considered 
acceptable  by  EU  stakeholders,  while  the  minimum  value  limits  have  been  identified  as 
problematic  (e.g.  only  paintings  valued  more  than  €  150,000  are  within  the  scope  of  the 
Regulation85) by certain Member States and operators86. 

In the OPC, respondents generally considered that age limits are relevant also on the import 
side.  Market  value  was  favoured  by  businesses  as  a  criterion  to  exclude  low  value  cultural 
goods from the scope of the initiative. 

Economic impact: Similar to option B1 and B2. 

7.3.4 OPTION B4 - Definition used in US legislation on the import of cultural goods (CPIA) 

Effectiveness:  This  option  would  partially  achieve  the  specific  objective  of  establishing  a 
common definition of cultural goods in the context of importation which is proportional to 

85 Especially problematic when an icon is considered a 'painting': only very few icons can attain that value. 
86  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 goods. COM(2015) 144 final 
See Annex 9 

38

 
 
                                                 
the  protection  needed,  without  impeding  legitimate  trade.  It  would  also  contribute  to  the 
achievement  of  the  general  objective  set  out  in  Section  5  (cf.  Objectives  tree).  Although  it 
sets no minimum value limits, the CPIA provides for a minimum limit of 250 years of age and 
only covers material of archaeological and ethnological interest. 

While such a narrow definition of cultural goods would protect the archaeological heritage 
of  countries  affected  by  armed  conflict  and  terrorism,  for  example  in  the  Middle  East,  it 
would not provide a deterrent to illicit trade in other cultural goods (rare manuscripts and 
incunabula, old books, documents of special interest, old maps, pieces of furniture, etc.). In 
this respect, this option would fall short of achieving the general objective set out in Section 
5. 

Efficiency:  in  view  of  the  very  narrow  scope  of  the  definition  (both  in  terms  of  type  of 
cultural  goods  and  of  minimum  age),  the  burden  on  customs  and  cultural  administrations 
and on EU operators would be limited relative to the protection this option would achieve in 
relation  to  countries  whose  archaeological  heritage  is  endangered  by  armed  conflict  and 
terrorism. 

Coherence: The restrictive definition of this option would not seem to be fully coherent with 
the general objective set out in section 5 (cf. Objectives tree).  

Proportionality: For the same reason, this option would be proportional to the objective of 
addressing  imports  of  cultural  goods  currently  at  very  high  risk.  However,  a  potentially 
significant portion of illicit trade would be neglected. 

Stakeholders  position:  Most  respondents  to  the  OPC  favoured  a  focus  on  cultural  goods 
endangered by armed conflicts and natural disasters. 

Economic impact: The very narrow scope of this definition would also imply a low effect on 
the  international  trade  in  cultural  goods.  Equally,  the  very  narrow  typology  of  goods 
concerned would mean a limited operational burden for customs and competent authorities 
alike. 

7.3.5 OPTION B5 – A wide typology of goods, narrowed down by an age threshold  

Effectiveness:  This  option  would  achieve  the  specific  objective  of  establishing  a  common 
definition  of  cultural  goods  in  the  context  of  importation,  which  is  proportional  to  the 
protection  needed,  without  impeding  legitimate  trade.  It  would  also  contribute  to  the 
achievement of the general objective set out in Section 5 (cf. Objectives tree). As indicated in 
Section  3.1.1,  the  total  value  of  EU  imports  of  cultural  goods  may  be  roughly  estimated  in 
the order of €3.7 billion annually. By combining the wide typology of cultural goods of the 
UNIDROIT 1995 Convention definition (same as in the UNESCO 1970 Convention definition 
but  including  goods  not  specifically  designated  by  States)  together  with  a  rather  high 
minimum age threshold the scope of cultural goods covered by this option would exclude an 
important volume of less sensitive goods that would otherwise fall within the scope of the 
definition. By allowing for flexibility in the determination of the minimum age threshold, this 
option would be also effective in taking account of changing profiles of trafficking in cultural 
goods. 

In this way, this option would go a long way towards achieving the general objective set out 
in Section 5 (cf. Objectives tree).  

Efficiency: By focussing on goods with a relatively high age limit, this option would de facto 
exclude  entire  categories  of  non-sensitive  cultural  goods  for  instance,  all  those  which  are 

39

 
 
products  of  relatively  recent  technology  or  societal  development  (e.g.  motor  cars; 
photographic  or  cinematographic  archives;  postage  or  revenue  stamps).  This  would 
substantially  alleviate  operational  costs  for  administrations  and  compliance  costs  for 
operators on the art market. 

Coherence: Setting a high but adaptable minimum age limit would be coherent with the aim 
of  protecting  endangered  heritage  from  third  countries,  in  particular  cultural  goods  from 
ancient civilisations but also for more recent ones, and at the same time would take account 
of changing circumstances and profiles in trafficking. 

Proportionality: As previously mentioned in Section 6, this option is positioned in between 
option  B2,  which  has  the  widest  scope  of  all  definitions,  and  option  B4,  which  has  the 
narrowest. It strikes a proper balance, proportional to the objectives of this initiative. 

Stakeholders position: While this specific combination was not presented to participants in 
the OPC, respondents considered the criterion of age particularly relevant.  

Economic  impact:  Introducing  an  across  the  board  age  threshold  in  the  definition  should 
result  in  a  corresponding  limitation  of  the  effect  on  trade.  Changes  to  the  age  threshold 
could be easily introduced taking account of any adverse effects on legitimate trade as well 
as  of  changing  circumstances  in  the  profiles  of  illicit  trade  in  cultural  goods.  Operational 
costs for customs and cultural authorities are also expected to be limited. 

OPTIONS 

Effectiveness Efficiency Coherence  Proportionality

Option B1 - Definitions used in the 
UNESCO 1970 Convention 

Option B2 - Definitions used in the 
UNIDROIT 1995 Convention 

Option B3 – Definitions used in 
Regulation (EC) No 116/2009 

Option B4 - Definitions used in the 
US legislation 

Option B5 – A wide typology 
narrowed-down by an age 
threshold 

2 

3 

1 

1 

3 

1 

1 

2 

3 

3 

2 

2 

1 

1 

3 

1 

1 

1 

2 

3 

7.4. GROUPING C - Regulatory options regarding the documentation needed to certify the 
licit nature of the goods 

Under  all  of  the  following  options,  the  determination  of  the  documentation  needed  to 
certify the licit nature of the goods would contribute to implementing the Specific Objectives 
No 2, 3 and 4 as defined in Section 5 (cf. Objectives tree).  

40

 
 
 
 
The  Commission  addressed  a  questionnaire87  to  the  Member  States’  customs  and  cultural 
authorities  in  an  attempt  to  quantify  the  costs88  of  carrying  out  the  various  controls  and 
issuing  authorisations  as  per  each  option  in  Grouping  C.  While  some  Member  States  have 
sent estimates of the time needed to accomplish certain steps and formalities, the majority 
of Member States declared unable to provide any such estimates. The variety of capacities 
required  regarding  different  types  of  cultural  goods  is  one  of  the  difficulties  mentioned  in 
providing estimates89. 

With  regard  to  the  costs  for  operators,  an  idea  can  be  had  from  the  implementation  of  a 
similar scheme, namely, the import/export certification of endangered fauna and flora under 
the CITES Convention90. In this case, as an example, the UK applies a fee of £59 in the case of 
import  permits  or  export  permits,  and  a  fee  of  £47  in  the  case  of  re-export  certificates,  An 
additional sum of £29 is due in cases of applications for multiple certificates (£29 for every 100 
applications  for  permits  or  certificates).  The  permits  and  certificates  are  usually  delivered  within 
15 days from submitting the relevant applications to UK authorities. 

Social impact: 

The  social  impact  of  each  of  the  options  within  this  grouping,  in  particular  as  regards 
criminality  and  terrorism  financing,  is  commensurate  to  their  respective  effectiveness  in 
addressing  the  general  objective  set  out  in  Chapter  5  as  specifically  assessed  below  under 
each of the options. 

7.4.1  OPTION  C1  -  Requirement  to  present,  where  applicable,  a  copy  of  the  export 
certificate issued in the source country 

Effectiveness: The requirement to present a valid export certificate issued by the competent 
authorities of the third country would help preserve its cultural heritage and also – because 
this  option  would  be  reserved  for  third  countries-signatories  of  the  1970  UNESCO 
Convention  –  encourage  the  countries  which  have  not  yet  done  so  to  sign  and  ratify  the 
Convention and establish export certification systems, as required by its Article 6. This would 
improve their capacity to deal with risks to their cultural heritage. 

This  option  would  reduce  the  number  of  illicit  cultural  goods  entering  the  EU.  However,  it 
would  cover  only  the  cultural  goods  designated  as  such  by  the  third  countries  that  would 
submit a request to the EU to control export licences whenever a cultural good is exported 
to  the  EU.  It  would  have  no  effect:  on  cultural  items  that  have  been  stolen  or  never 
registered  as  national  treasures  and  declared  under  a  false  origin;  on  cultural  goods  from 
third  countries  which  are  not  signatories  of  the  1970  UNESCO  Convention  or  which  are 
signatories but have not yet established export certification systems; and on cultural goods 
from  third  countries  which  have  not  requested  (yet)  the  assistance  of  EU  customs  at  the 
stage of importation. 

The  presentation  of  an  export  certificate  would  create  a  prima  facie  presumption  that  the 
export  of  the  cultural  good  has  been  in  accordance  with  the  third  country's  laws  and 
regulations. In this way, it would support the work of EU customs, compared to the current 

87 See Annex 4. 
88 Following on the "Standard Cost Model" method. See Annex 5. 
89  e.g.  ranging  "from  inspection  of  coins  found  in  a  traveller's  luggage  to  a  painting  or  other  good  for  which  special  atmospheric 
conservation conditions have to be maintained or specific protocols for the opening of the packaging to be followed" 
90 As implemented in the EU by Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade 
therein  and  by  Commission  Regulation  (EC)  No  865/2006(d)  laying  down  detailed  rules  concerning  the  implementation  of  that  Council 
Regulation 

41

 
 
                                                 
situation  where  customs  bear  the  burden  of  proof  that  the  cultural  good  being  imported 
may be illicitly exported from a source country.  

Therefore,  overall  this  option  would  only  be  partially  effective  in  achieving  the  general 
objective and Specific Objectives No 2, 3 and 4 set out in Section 5 (Objectives tree). 

Efficiency: While customs administrations routinely check certificates at import for a variety 
of other reasons and goods (such requirements, e.g. compliance with rules of origin, sanitary 
and phytosanitary rules, etc., are integrated in the automated customs tariff system91), the 
implementation  of  this  option  would  require  putting  in  place  a  system  of  bilateral 
administrative  cooperation  agreements  between  the  EU  and  third  countries.  This  would 
imply a considerable amount of time and effort at EU level to introduce and implement. 

In principle, there would be no additional cost for businesses since, in any case, businesses 
need  to  comply  with  the  source  country's  laws  and  regulations,  including  with  the 
requirement for the exporter to obtain and provide an export certificate. 

Coherence:  This  option  is  coherent  with  the  UNESCO  1970  Convention  and  promotes 
accession of countries to it; it encourages them to establish control measures (in this case: 
export  authorisation  systems)  and  to  use  the  standardised  form  of  the  Model  Export 
Certificate. 

Proportionality:  This  option  would  imply  a  relatively  light  burden  for  enterprises  and 
authorities  but  would  seem  to  be  only  partially  fit  for  purpose  relative  to  the  objectives 
sought. 

Stakeholder’s  position:  This  option  was  opposed  by  38%  of  the  enterprise  category  but 
favoured by 47% of interest representatives (art market and museum associations) and was 
clearly supported by public authorities, NGOs and civil society and private citizens.  

Economic impact:  

This  option  is  not  expected  to  have  a  significant  impact  on  operators,  as  it  does  not  imply 
new  compliance  costs.  From  the  point  of  view  of  administrative  costs,  as  more  and  more 
source countries would join the scheme, with varying categories of cultural goods for which 
they would wish the Union to control certificates at its external border, the cost in terms of 
human  resources  to  manage  the  system  would  increase.  This  would  be  due  both  to  the 
increase  of  cultural  goods  to  be  checked  and  also  to  the  increasing  complexity  of  the 
relevant legal provisions.  

7.4.2  OPTION  C2  -  Requirement  to  submit  an  importer’s  statement  for  all  goods  falling 
within the scope 

Effectiveness: This option would provide vital documentary evidence of the existence of the 
cultural good, of the person who imported it, and of the date and point of entry in the EU. 
This information could be used to better develop risk profiles and risk management of the 
relevant trade flows. 

The  signed  statement  would  engage  the  liability  of  the  importers  for  any  untrue  or 
inaccurate statements they make to the Member State authorities about the cultural good 
and  its  provenance,  including  statements  contained  in  the  accompanying  standardised 
description document (Object ID standard).  

91 TARIC system. 

42

 
 
                                                 
As  a  result,  importers  in  the  EU  would  become  more  diligent  when  they  purchase  cultural 
goods from third countries, more careful in choosing their suppliers, favouring suppliers who 
are  able  to  provide  the  required  information  on  provenance.  Better  traceability  and 
transparency  might  also  increase  the  market  value  of  the  goods.  Better  traceability  could 
also make objects better known to researchers, academics and scientists. 

However, this option would not fully achieve the general objective and specific objectives 2, 
3 and 4 set out in Section 5 (Objectives tree) as it would not offer the high degree of scrutiny 
that is required in respect of particularly endangered cultural objects such as archaeological 
items. 

Efficiency: The cost of this option for operators is considered minimal, as both documents – 
the signed statement as well as the Object ID form – would be in a standardised form and 
easy  to  download  and  complete.  The  information  to  be  provided  in  the  accompanying 
document  is  considered  as  the  minimum  that  any  diligent  importer  should  know  about 
objects they purchase from foreign countries. In practice, it would hardly require anymore 
efforts  from  market  operators  than  the  effective  implementation  of  codes  of  ethics  or 
conduct as described in option A1. The operational costs for customs authorities would not 
be  significant.  However  this  assessment  does  not  include  the  costs  of  establishing  and 
maintaining a searchable database containing the statements and Object ID forms submitted 
by  importers.  Such  a  step  ahead  could  be  decided  at  a  later  stage  by  implementing  act 
following an ad hoc study. 

Coherence:  The  coherence  of  this  option  in  the  context  of  efforts  to  prevent  and  combat 
trafficking  in  cultural  goods  is  particularly  evident,  since  it  reinforces  the  monitoring  and 
traceability  of  the  whole  range  of  cultural  goods  and  their  trade  flows  –  an  element 
identified as indispensable by UNESCO in safeguarding cultural heritage. 

Proportionality:  By  relying  on  importer  knowledge  and  standardised  documentation  to 
certify  the  legal  provenance  of  the  goods,  this  option  would  contribute  significantly  to  the 
achievement of the objectives pursued. However, it would fall short of fully addressing the 
case of endangered goods. 

Stakeholder’s  position:  Enterprises  (28%)  and  interest  representatives  (31%)  slightly 
favoured  this  option,  while  NGOs  and  civil  society  representatives  (75%)  and  public 
authorities (53%) considered it not appropriate. However, as self-certification is a relatively 
new  idea  in  this  domain,  it  is  possible  that  not  all  the  implications  of  this  option  were 
considered and understood by the respondents92. 

Economic impact:  

This option has no particular impact on diligent market operators, who routinely require the 
minimum amount of information necessary to fill in an Object ID form from their client, the 
exporter.  From  the  point  of  view  of  administrative  costs,  Member  States  may  have  to 
organise  simple  trainings  for  their  customs  officers  and  competent  cultural  authorities  to 
familiarise them with applying the provision.  

7.4.3 OPTION C3 - Requirement to obtain an import licence for all cultural goods 

Effectiveness: Under this policy option, the Union would have complete control over what 
cultural goods may enter its territory. In practice, the effectiveness of this measure would be 

92 For example, the reply of the US Customs  and Border Protection to the open public  consultation contained a question as to the  self-
certification system, although in the US they apply a similar system where the importer's declaration is called an 'oath'. 

43

 
 
                                                 
conditioned on the quality and the amount of verifiable information submitted to customs 
and cultural authorities/experts by the applicant.  

The effectiveness of this measure is also dependent on the existence of adequate resources 
to  process  import  authorisation  applications.  Member  States  would  need  specialists  who 
could provide expertise on a large spectrum of cultures, civilisations and objects from certain 
regions and would have difficulty to process such applications as they would arrive at great 
numbers.  For  operators  it  might  mean  long  waiting  periods  during  which  they  would  be 
prevented from finding buyers and selling the objects. 

Overall,  this  option  would  be  effective  in  achieving  the  general  objective  and  Specific 
Objectives  No 2,  3  and  4  set  out  in  Section  5  (Objectives  tree),  provided  that  all  necessary 
resources became available to authorities. 

Efficiency: The cost for EU importers is expected to be high as they will have to prepare and 
submit  to  the  competent  authority  in  the  Member  State  of  entry  an  application  for  each 
cultural good they seek to introduce into the EU territory. While the value of certain cultural 
goods  would  justify  the  expense,  for  others  of  low  value  it  would  make  the  importation 
impractical.  For  the  competent  authorities  who  would  review  the  applications  it  would 
create a considerable burden because of the potentially large number of application cases 
and the variety of goods to review from a multitude of source countries. There is the risk of 
significant  delays  in  processing  the  applications.  Each  Member  State  competent  authority 
will  have  also  to  ensure  coverage  in  terms  of  expertise  of  many  third  countries'  cultural 
heritage.  

Coherence: The option is coherent with the objectives set in the UNESCO 1970 Convention. 

Proportionality:  This  option  would  be  particularly  burdensome,  especially  if  a  wide 
definition  of  the  scope  of  cultural  goods  was  also  selected.  It  would  be  disproportional 
compared to the objectives set. 

Stakeholder’s  position:  Enterprise  respondents  to  the  OPC  considered  the  option  of  an 
import authorisation as not appropriate (44%), predicting it will require significant additional 
human  resources  and  that  compliance  costs  will  significantly  increase.  On  the  other  hand, 
62% of NGOs and civil society respondents and 68% of Member States' public authorities are 
in favour of import licencing.  

Economic impact: 

The cost for operators seeking to import cultural goods is the highest among the examined 
options. While Member State authorities surveyed indicated a modest fee (20 to 40 EUR) for 
processing the application (some would do it even free of charge), the importer will still have 
to  bear  the  cost  of  preparing  an  application  substantiating  the  licit  provenance  of  the 
cultural  good.  The  cost  of  this  may  vary  depending  on  the  specific  objects  to  be  imported 
and the complexity of each dossier.  

With regard to the provenance documents that applicants would be called to submit for an 
import licence, parallels can be drawn from the implementation of the similar EU system of 
export licences for EU cultural goods. From replies to a survey conducted in the framework 
of the study on 'fighting illicit trafficking in cultural goods: analysis of customs issues in the 
EU' it seems that in general, the cultural competent authorities would allow the applicant to 
supply  any  type  of  documentary  evidence  that  may  contribute  to  establishing  licit 

44

 
 
provenance.  Referring  to  a  standard  situation,  the  Member  States  indicate  the  following 
documentation accompanies the application for a standard export license. 

Figure 1 – Documentation accompanying application 

Source: Specific survey to the EU Customs and Culture administrations (2016) 

The authenticity of the invoice cannot always be verified, hence, supplementary evidence is 
required.  Expert  appraisals  are  more  often  than  not  supplied  and  could  provide  for 
important  information  on  the  provenance,  value,  and  age  of  the  cultural  good.  Most 
applicants  also  provide  other  evidence,  such  as  documentation  on  provenance  (e.g.  an 
export/import  certificate),  photo  documentation,  declarations  by  stakeholders,  proof  of 
value, contract of loan, a catalogue entry, auction or sale details if the item is sold, proof of 
importation, shipping documentation, customs return. It can be deduced from this practical 
experience that documentary requirements are flexible. 

From  the  point  of  view  of  costs  for  Member  States  administrations,  there  might  be  some 
additional expenses involved in ensuring the services of specialists with expertise in a large 
number  of  source  countries'  cultural  heritage.  The  same  authorities  who  are  currently 
competent to issue EU export licences are expected to be in charge of import licences, so no 
significant organisational costs in establishing new departments are foreseen in that respect.   

7.4.4  OPTION  C4  -  Requirement  to  obtain  an  import  licence  for  archaeological  finds  and 
elements of monuments and to submit an importer’s statement for other goods 

Effectiveness:  The  option  contributes  to  making  importers  exercise  diligence  when  they 
purchase certain cultural goods from third countries, as they will have to demonstrate licit 
provenance in order to obtain an import licence for cultural goods at high-risk from pillage. 
For  the  less  sensitive  cultural  goods,  standardised  information  requirements  will  facilitate 
customs controls and validation of entry and improve traceability. Importer's statements still 
engage  the  responsibility  of  operators,  who  face  penalties  if  the  information  they  provide 
turns  out  to  be  false.  As  indicated  in  Section  3.1.1,  the  value  of  imports  of  archaeological 
objects  for  which  import  licencing  will  be  required  is  only  a  fraction  of  the  total  imports 
declared under heading 9705, and therefore, represents a very small proportion of the total 
value of EU imports of cultural goods declared under Chapter 97. 

This  option  would  be  effective  in  achieving  the  general  objective,  as  well  as  Specific 
Objectives No 2, 3 and 4 set out in Section 5 (Objectives tree). 

Efficiency:  Due  to  its  limited  specialised  scope,  this  option  would  still  require  specialised 
expertise  from  issuing  authorities  but  to  a  much  lower  extent  than  subjecting  all  cultural 
goods to an import licence (option C3). 

45

 
 
 
 
 
Coherence: This policy option is fully coherent with the identified need for a robust response 
to  the  increased  risk  for  certain  categories  of  cultural  goods  which,  by  their  nature,  are 
directly exposed to loss or dispersion, namely archaeological heritage. As it happens, these 
are also the very cultural goods that are targeted by terrorists and other warring factions for 
the purposes of financing their activities. 

Proportionality:  This  option  would  be  proportional  to  the  objectives  set  since  it  organises 
import  certification  requirements  in  line  with  the  relative  risks  and  is  readily  adaptable  to 
changing circumstances and trafficking profiles. 

Stakeholder’s position: While this was not an option presented as such to the participants to 
the OPC, NGOs and civil society respondents and Member States' public authorities declared 
to be in favour of import licencing (and not only for the limited part of archaeological finds). 
Art  market  enterprises  are  in  principle  against  import  licences,  as  they  foresee  significant 
compliance  costs.  The  limitation  of  this  obligation  to  only  a  small  fraction  of  the  market 
could be expected to make them less opposed to such a measure. At the same time the use 
of importer’s statements seemed to be non-acceptable to businesses (see option C2). 

Economic impact: 

The  balanced  certification  requirements  would  benefit  the  licit  trade  in  imported  cultural 
goods,  as  they  would  provide  for  evidence  of  licit  provenance  which  would  ultimately 
increase the trust of clients in the EU art and antiquities market. The costs linked to import 
licencing  requirements  may  be  considerable,  but  only  for  a  very  small  part  of  the  cultural 
goods market. The cost for customs would be limited for registering the affidavit and Object 
ID  forms,  while  the  cost  for  competent  cultural  authorities  examining  applications  and 
issuing import licences would be significantly lower, compared to that of option C3. 

OPTIONS 

Effectiveness 

Efficiency 

Coherence 

Proportionality 

Option C1 – 
Presentation of a 
copy of the export 
certificate, where 
applicable in source 
country 

Option C2 – 
Submission of an 
importer's statement 
for all goods falling 
within the scope 

Option C3 – 
Obligation to obtain 
an import licence for 
all goods falling 
within the scope 

Option C4 - 

1 

2 

3 

3 

2 

3 

3 

3 

1 

2 

0 

3 

1 

3 

0 

3 

46

 
 
 
Obligation to obtain 
an import licence for 
archaeological finds 
and elements of 
monuments and to 
submit an importer's 
statement for other 
goods 

8. COMPARISON OF OPTIONS  

The merits of each policy option are assessed within each grouping and are compared on the 
basis  of  the  following  criteria:  effectiveness  with  regard  to  the  objectives  set,  efficiency  in 
terms of administrative burden/costs for stakeholders, coherence with other related policies 
and policy instruments and, where appropriate, proportionality.  

8.1 Baseline scenario 

The  performance  of  the  baseline  scenario  (no  change)  is  graded  zero.  See  table  in  Section 
7.1. 

8.2 GROUPING A – Soft law options based on stakeholder goodwill and self-discipline 

Option  A2  ranks  higher  than  option  A1,  as  it  is  expected  to  perform  better  in  terms  of 
effectiveness and efficiency. See table in Section 7.2. 

8.3  GROUPING  B  –  Regulatory  options  regarding  the  appropriate  definition  of  cultural 
goods 

Option B5 ranks higher than options B1 to B4 as it is expected to cover as wide a typology of 
goods  as  options  B1  to  B3,  but  without  impeding  legitimate  trade,  thanks  to  its  restrictive 
minimum age limit (same as in option B4). See table in Section 7.3.  

8.4 GROUPING C – Regulatory options regarding the documentation needed to certify the 
licit nature of the goods  

Option  C4  ranks  higher  than  options  C1  to  C3,  as  it  ensures  protection  and  modulates 
requirements  for  cultural  goods  by  prioritising  those  which  are  most  at  risk.  See  table  in 
Section 7.4. 

8.5 Preferred options 

The  analysis  of  the  impact  of  the  policy  options  in  Section  7  indicates  that,  in  order  to 
achieve the policy objectives set (see Section 5 – Objectives Tree), a combination of soft-law 
and  regulatory  measures  presented  in  Section  6  would  be  necessary.  The  following 
combination  is  expected  to  able  to  produce  the  best  result  in  terms  of  effectiveness, 
cost/efficiency, coherence and proportionality: 

47

 
 
 
 
8.5.1  OPTION  A2  -  Raising  awareness  of  potential  buyers  and  of  customs  and  other 
enforcement authorities 

Option A2 is superior to option A1 because it is more effective in promoting due diligence on 
behalf  of  businesses  and  individual  buyers,  such  as  tourists  and  travellers;  as  shown  from 
previous experience, it is relatively inexpensive to implement; and it is more coherent with 
the  policies  and  objectives  pursued.  This  option  would  particularly  achieve  the  Specific 
Objective No 5. 

8.5.2 OPTION B5 - Wide typology of UNIDROIT 1995 definition narrowed-down by an age 
threshold  

The UNIDROIT 1995 Convention definition achieves Specific Objective No 1 better than the 
definition used in Regulation (EC) No 116/2009 considering that the issue at present is trade 
with  third  countries  which  are  more  familiar  with  cultural  goods  definitions  found  in 
international Conventions. The UNIDROIT 1995 Convention definition is also better than the 
definition  in  UNESCO  1970  Convention  because,  while  identical  on  categories  of  goods, 
UNIDROIT  1995  includes  cultural  goods  that  have  not  yet  been  found  and  therefore,  have 
not  yet  been  designated  by  States  as  cultural  property.  These  happen  to  be  the  cultural 
goods at high-risk from pillage, i.e. endangered heritage. 

However, the UNIDROIT 1995 definition is very wide and might create problems for day-to-
day  trade.  As  previously  stated,  Objective  No  1  requires  the  establishment  of  a  common 
definition,  which  would  cover  the  largest  possible  typology  of  goods,  without  at  the  same 
time  imposing  excessive  restrictions  on  legitimate  trade.  To  overcome  this  drawback, 
inspiration  could  be  drawn  from  US  legislation  (CPIA),  which  relies  on  a  minimum  age 
threshold of 250 years. 

The  merit  of  Option  B5  is  that  it  moderates  the  burden  likely  to  result  for  businesses  and 
administrations  alike  from  the  very  wide  scope  of  option  B3  by  introducing  an  additional 
criterion inspired by option B4, allowing to put the focus on those objects most at risk. 

8.5.3  OPTION  C4  -  Requirement  to  obtain  an  import  licence  for  archaeological  finds  and 
elements of monuments and to submit an importer's statement for other goods 

The merit of Option C4 is that it moderates the burden that would result for businesses and 
Member States administrations alike from a requirement of import licences across the board 
(option C3) by resorting, for less sensitive goods, to the less burdensome requirement of an 
importer's statement (option C2). 

This option would achieve Specific Objectives No 2, 3 and 4. 

8.6 Conclusion 

It  follows  that  the  preferred  option  is  a  combination  of  regulatory  and  non-regulatory 
measures.  

On the regulatory side, with regard to the definition of the scope to be covered, option B5 is 
the  preferred  option.  This  would  be  combined  with  regulatory  option  C4,  which  is  the 
preferred  option  as  regards  the  documentation  needed  to  certify  the  licit  nature  of  the 
goods. 

48

 
 
The  implementation  of  the  regulatory  options  B5  and  C4  could  be  underpinned  by 
implementing  option  A2,  in  order  to  increase  the  involvement  of  stakeholders  through 
awareness raising and capacity building. 

The  combination  of  the  three  options  could  be  expected  to  have  a  more  powerful  overall 
impact  in  relation  to  the  five  specific  objectives  as  well  as  the  general  objective  set  out  in 
Section  5,  compared  to  the  results  shown  above,  where  each  option  is  considered  in 
isolation (e.g. option A2). 

9. MONITORING AND EVALUATION 

9.1 Operational objectives 

The following two operational objectives are set: 

A. Collection of factual data on incoming trade flows in archaeological objects and elements 
of monuments that have been dismembered, as well as for other cultural goods within the 
scope of the regulatory measure 

B. Assessing the performance of certification requirements and soft-law measures   

9.2 Monitoring indicators  

The  Commission  would  monitor  the  performance  of  the 
its 
implementing  provisions  in  close  cooperation  with  the  Member  States.  Monitoring  in  a 
continuous  and  systematic  way  would  allow  identifying  whether  the  policy  proposal  is 
applied as expected and addressing implementation problems in a timely manner.  

instrument  and 

legal 

Collection  of  factual  data  by  the  Member  States  will  provide  the  basis  for  the  future 
evaluation of the Regulation and will be guided by the following monitoring indicators:  

-  statistical information to the Commission on importer's statements registered;  

-  controls  carried  out  in  cases  where  an  importer's  statement  was  made  and  there  were 
doubts as to its accuracy;  

-  numbers of import licence applications submitted and numbers of those refused;  

-  relevant  statistical  information  on  cultural  goods  trade  flows  (e.g.  countries  from  where 
cultural goods are mostly dispatched to the EU);  

- numbers of cases where cultural goods have been detained for further controls, including 
expertise; and  

- penalties established and imposed by the Member States. 

The  development  in  the  future93  of  appropriate  subdivisions  in  the  customs  nomenclature 
will  permit  to  monitor  more  accurately  trade  flows  and  to  collect  more  specific  statistical 
data  on  the  number  and  kind  of  cultural  goods  that  are  entering  the  Union's  customs 
territory.  

An  evaluation  report  would  be  prepared  by  the  Commission  on  the  basis  of  information 
provided by the Member States and submitted to the European Parliament and the Council 
five  years  after  the  entry  into  force  of  the  Regulation  and  every  five  years  thereafter.  The 

93  First  at  EU  tariff  nomenclature  level  by  creating  appropriate  TARIC  subdivisions  for  the  purposes  of  applying  EU  customs 
measures and later on, at international level, by the WCO which has clearly stated their intention to amend Chapter 97 of the 
Harmonised System and create in it more subdivisions.  

49

 
 
                                                 
evaluation  of  the  Regulation  should  assess  the  extent  to  which  the  objectives  have  been 
met.  The  evaluation  results  could  be  communicated  to  other  European  Institutions  in  the 
form of a report. 

The  performance  of  soft-law  measures  will  be  assessed  by  ex  post  evaluation  of  the 
awareness-raising campaigns and trainings (a standard component of EU-funded  actions). 

10. GLOSSARY 

Al-Qaida  ...........................................  Al-Qaeda,  Arabic  al-Qaʿidah  (“the  Base”),  broad-based 
militant  Islamist  organization  founded  by  Osama  bin 
(source:  Encyclopædia 
in 
Laden 
Britannica) 

late  1980s 

the 

ANF  ..................................................  Al-Nusrah Front  
CBP  ..................................................  US Customs and Border Protection 
CITES  ................................................  Convention  on 

International  Trade 

in  Endangered 

Species of Wild Fauna and Flora 

CN  ....................................................  The  Combined  Nomenclature  (CN)  is  a  method  for 
designating  goods  and  merchandise  which  was 
established  to  meet,  at  one  and  the  same  time,  the 
requirements  both  of  the  Common  Customs  Tariff  and 
of the external trade statistics of the Community 

CPIA  .................................................  Convention  on  Cultural  Property  Implementation  Act, 
implementation  of  the  1970 
representing  the  US 
UNESCO convention 
CPTA  ................................................  Federal  Act  on  the  International  Transfer  of  Cultural 
Property, representing the Swiss implementation of the 
1970 UNESCO Convention 

CPTO  ................................................  Cultural Property Transfer Ordinance, Ordinance on the 

International Transfer of Cultural Property 

Cultural goods  .................................  Throughout 

the 

text, 

'artefacts', 

'antiquities', 

'cultural  goods' 

is  used 
interchangeably  with  other  terms  'cultural  property', 
'cultural  objects', 
'national 
treasures',  etc.  according  to  the  context.  In  all  cases  it 
concerns  objects  which  are  considered  of  importance 
for  archaeology,  prehistory,  history,  literature,  art  or 
science. The term 'cultural goods', however, is preferred 
for  use  in  an  eventual  legislative  act,  as  it  is  the  one 
used  in  existing  EU  legislation  (Regulation  (EC)  No 
116/2009 on the export of cultural goods). 

Due diligence  ..................................  The  requirement  that  every  endeavour  is  made  to 
establish the facts of a case before deciding a course of 
action, particularly in identifying the source and history 
item  offered  for  acquisition  or  use  before 
of  an 
acquiring it. 

EUROPOL  .........................................  European Police Office 

50

 
 
 
Export  ..............................................  Export is to be understood in this context as the exit of 
cultural  goods  from  the  territory  of  a  third  country, 
including cases in violation of the third country's laws. 

FATF  .................................................  Financial Action Task Force 
GAO  .................................................  United States Government Accountability Office 
Hague Convention 1954  .................  Convention  for  the  Protection  of  Cultural  Property  in 
the  Event  of  Armed  Conflict  with  Regulations  for  the 
Execution of the Convention 1954 

HMRC  ...............................................  Her Majesty's Revenue and Customs, UK Government 
ICOM  ................................................  International Council of Museums 
ICPRCP  .............................................  UNESCO  intergovernmental  Committee  for  Promoting 
the Return of Cultural Property to its Countries of Origin 
or its Restitution in Case of Illicit Appropriation 

IEG  ...................................................  INTERPOL Expert Group on Stolen Cultural Property 
Illicit trade  .......................................  illicit  trade  is  to  be  understood  in  this  context  as  the 
illegal export of cultural goods, i.e. the export of cultural 
goods  from  a  third  country  in  violation  of  its  national 
laws,  with  the  intention  to  import  those  goods  in  the 
territory of the European Union. 

Implementing Act  ...........................  Instrument  the  European  Commission  may  adopt  on 
the  basis  of  Article  291  TFEU  in  order  to  ensure  the 
implementation of EU law 

Import  ..............................................  Import is to be understood in this context as the entry 
of  cultural  goods  into  the  territory  of  the  EU,  including 
cases of smuggling. 

INTERPOL  .........................................  International Criminal Police Organization 
IP-address spoofing  ........................  Or IP spoofing is an impersonation of a user, device or 
client  on  the  Internet.  It's  often  used  during  a  cyber-
attack to disguise the source of attack traffic 

ISIL  ...................................................  Islamic State of Iraq and the Levant (ISIL) 
Kimberley Process (KP)  ...................  Joint  governments,  industry  and  civil  society  initiative 
to stem the flow of conflict diamonds – rough diamonds 
used  by  rebel  movements  to  finance  wars  against 
legitimate governments 

Object ID (Object ID Standard)  ..........  International standard for describing cultural objects 
OPC  ..................................................  EU Open Public Stakeholder Consultation 
Provenance  .....................................  The full history and ownership of an item from the time 
of  its  discovery  or  creation  to  the  present  day,  from 
which authenticity and ownership are determined. 

Source country  ................................ Source  country  is  to  be  understood  in  the  present 
context  as  the  third  country  where  the  cultural  good 
was  created  or  discovered  and  where  it  was  lawfully 
located before export to the EU 

TARIC  ...............................................  Integrated Tariff of the European Union 

51

 
 
TEFAF  ...............................................  the European Fine Art Fair 
TEU  ..................................................  Treaty on European Union 
TFEU  .................................................  Treaty on the Functioning of the European Union 
Third country  ...................................  All  countries  which  are  not  members  of  the  European 

Union. 

Traceability  ......................................  The  ability  to  establish  the  provenance  of  a  cultural 

good. 

UAE  ..................................................  United Arab Emirates 
UCC  ..................................................  Union Customs Code 
UNESCO  ...........................................  United  Nations  Educational,  Scientific  and  Cultural 

Organization 

UNESCO Convention 1970  ..............  Convention on the Means of Prohibiting and Preventing 
the  Illicit  Import,  Export  and  Transfer  of  Ownership  of 
Cultural Property 

UNIDROIT Convention 1995  ...........  UNIDROIT  convention  on  stolen  or  illegally  exported 

cultural objects 

UNODC  ............................................  United Nations Office on Drugs and Crime 
UNSC  ................................................  United Nations Security Council 
WCO  .................................................  World Customs Organization 

11. WHO IS AFFECTED BY THE PROBLEM AND HOW 

On  the  one  hand,  trafficking  in  cultural  goods  provides  criminals,  warring  factions  and 
terrorists with means to finance and continue their activities. It promotes crime – the goods 
arrive at their market destination with a heavy crime record - and thus it has, indirectly, a 
negative impact on society and public order in the source and transit countries, as well as in 
the countries of destination. 

On  the  other  hand,  while  the  absence  of  any  effective  deterrents  to  the  import  of  illicit 
cultural  goods  in  the  EU  allows  impoverished  local  populations  in  the  source  countries  to 
supplement  their  meagre  income  with  the  small  amounts  of  money  paid  to  them  by  the 
traffickers  and  middlemen,  the  problem  of  illicit  trade  affects  most  directly  and  negatively 
the  citizens  of  those  source  countries.  The  latter  indeed  lose  part  of  their  cultural  identity 
and  the  potential  to  gain  in  future  a  more  sustainable  income  by  investing  in  the 
development of cultural tourism. 

The  absence  of  regulatory  requirements  and  effective  deterrents  (penalties)  makes  the 
purchase  of  artefacts  and  antiquities  easier  for  buyers  in  Europe,  although  the  illicit 
character  of  the  goods  exposes  such  buyers  to  the  risk  of  paying  significant  amounts  of 
money for copies or fakes without having any legal recourse to obtain compensation. It also 
limits  costs  to  traders,  which  explains  their  opposition  to  any  new  import  measures,  as 
expressed in the Open Public Consultation. 

The  loss  of  cultural  heritage  also  deprives  human  society  in  general  from  its  history.  Illicit 
excavation and sale of the individual finds deprives archaeologists, scientists and historians 

52

 
 
from  the  chance  to  study  the  objects  and  learn  about  the  lives  of  ancient  civilisations,  an 
opportunity missed when the contextual link with the site is lost. 

53