Legal provisions of COM(2017)375 - Import of cultural goods

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dossier COM(2017)375 - Import of cultural goods.
document COM(2017)375 EN
date April 17, 2019

Contents

Article 1 - Subject matter and scope

1. This Regulation sets out the conditions for the introduction of cultural goods and the conditions and procedures for the import of cultural goods for the purpose of safeguarding humanity’s cultural heritage and preventing the illicit trade in cultural goods, in particular where such illicit trade could contribute to terrorist financing.

2. This Regulation does not apply to cultural goods which were either created or discovered in the customs territory of the Union.

Article 2 - Definitions

For the purposes of this Regulation, the following definitions apply:

(1)‘cultural goods’ means any item which is of importance for archaeology, prehistory, history, literature, art or science as listed in the Annex;

(2)‘introduction of cultural goods’ means any entry into the customs territory of the Union of cultural goods which are subject to customs supervision or customs control within the customs territory of the Union in accordance with Regulation (EU) No 952/2013;

(3)‘import of cultural goods’ means:

(a)the release of cultural goods for free circulation as referred to in Article 201 of Regulation (EU) No 952/2013; or

(b)the placing of cultural goods under one of the following categories of special procedures referred to in Article 210 of Regulation (EU) No 952/2013:

(i)storage, comprising customs warehousing and free zones;

(ii)specific use, comprising temporary admission and end-use;

(iii)inward processing;

(4)‘holder of the goods’ means holder of the goods as defined in point (34) of Article 5 of Regulation (EU) No 952/2013;

(5)‘competent authorities’ means the public authorities designated by the Member States to issue import licences.

Article 3 - Introduction and import of cultural goods

1. The introduction of cultural goods referred to in Part A of the Annex which were removed from the territory of the country where they were created or discovered in breach of the laws and regulations of that country shall be prohibited.

The customs authorities and the competent authorities shall take any appropriate measure when there is an attempt to introduce cultural goods as referred to in the first subparagraph.

2. The import of cultural goods listed in Parts B and C of the Annex shall be permitted only upon the provision of either:

(a)an import licence issued in accordance with Article 4; or

(b)an importer statement submitted in accordance with Article 5.

3. The import licence or the importer statement referred to in paragraph 2 of this Article shall be provided to the customs authorities in accordance with Article 163 of Regulation (EU) No 952/2013. In the event that the cultural goods are placed under the free zone procedure, the holder of the goods shall provide the import licence or the importer statement upon presentation of the goods in accordance with points (a) and (b) of Article 245(1) of Regulation (EU) No 952/2013.

4. Paragraph 2 of this Article shall not apply to:

(a)cultural goods that are returned goods within the meaning of Article 203 of Regulation (EU) No 952/2013;

(b)the import of cultural goods for the exclusive purpose of ensuring their safekeeping by, or under the supervision of, a public authority, with the intent to return those cultural goods, when the situation so allows;

(c)the temporary admission of cultural goods, within the meaning of Article 250 of Regulation (EU) No 952/2013, into the customs territory of the Union for the purpose of education, science, conservation, restoration, exhibition, digitisation, performing arts, research conducted by academic institutions or cooperation between museums or similar institutions.

5. An import licence shall not be required for cultural goods that have been placed under the temporary admission procedure within the meaning of Article 250 of Regulation (EU) No 952/2013, where such goods are to be presented at commercial art fairs. In such cases an importer statement shall be provided in accordance with the procedure in Article 5 of this Regulation.

However, if those cultural goods are subsequently placed under another customs procedure referred to in point (3) of Article 2 of this Regulation, an import licence issued in accordance with Article 4 of this Regulation shall be required.

6. The Commission shall lay down, by means of implementing acts, detailed arrangements for cultural goods that are returned goods, for the import of cultural goods for their safe keeping and for the temporary admission of cultural goods as referred to in paragraphs 4 and 5 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 13(2).

7. Paragraph 2 of this Article shall be without prejudice to other measures adopted by the Union in accordance with Article 215 of the Treaty on the Functioning of the European Union.

8. When submitting a customs declaration for the import of cultural goods listed in Parts B and C of the Annex, the number of items shall be indicated using the supplementary unit, as set out in that Annex. Where the cultural goods are placed under the free zone procedure, the holder of the goods shall indicate the number of items upon presentation of the goods in accordance with points (a) and (b) of Article 245(1) of Regulation (EU) No 952/2013.

Article 4 - Import licence

1. The import of cultural goods listed in Part B of the Annex other than those referred to in Article 3(4) and (5) shall require an import licence. That import licence shall be issued by the competent authority of the Member State in which the cultural goods are placed under one of the customs procedures referred to in point (3) of Article 2 for the first time.

2. Import licences issued by the competent authorities of a Member State in accordance with this Article shall be valid throughout the Union.

3. An import licence issued in accordance with this Article shall not be construed to be evidence of licit provenance or ownership of the cultural goods in question.

4. The holder of the goods shall apply for an import licence to the competent authority of the Member State referred to in paragraph 1 of this Article via the electronic system referred to in Article 8. The application shall be accompanied by any supporting documents and information providing evidence that the cultural goods in question have been exported from the country where they were created or discovered in accordance with the laws and regulations of that country or providing evidence of the absence of such laws and regulations at the time they were taken out of its territory.

By way of derogation from the first subparagraph, the application may be accompanied instead by any supporting documents and information providing evidence that the cultural goods in question have been exported in accordance with the laws and regulations of the last country where they were located for a period of more than five years and for purposes other than temporary use, transit, re-export or transhipment, in the following cases:

(a)the country where the cultural goods were created or discovered cannot be reliably determined; or

(b)the cultural goods were taken out of the country where they were created or discovered before 24 April 1972.

5. Evidence that the cultural goods in question have been exported in accordance with paragraph 4 shall be provided in the form of export certificates or export licences where the country in question has established such documents for the export of cultural goods at the time of the export.

6. The competent authority shall check whether the application is complete. It shall request any missing or additional information or document from the applicant within 21 days of receipt of the application.

7. Within 90 days of receipt of the complete application, the competent authority shall examine it and decide whether to issue the import licence or to reject the application.

The competent authority shall reject the application where:

(a)it has information or reasonable grounds to believe that the cultural goods were removed from the territory of the country where they were created or discovered in breach of the laws and regulations of that country;

(b)the evidence required by paragraph 4 has not been provided;

(c)it has information or reasonable grounds to believe that the holder of the goods did not acquire them lawfully; or

(d)it has been informed that there are pending claims for the return of the cultural goods by the authorities of the country where they were created or discovered.

8. In the event that the application is rejected, the administrative decision referred to in paragraph 7, together with a statement of reasons and information on the appeal procedure, shall be communicated to the applicant without delay.

9. Where an application is made for an import licence relating to cultural goods for which such an application has been previously rejected, the applicant shall inform the competent authority to which the application is submitted of the previous rejection.

10. Where a Member State rejects an application, that rejection, as well as the grounds on which it was based, shall be communicated to the other Member States and to the Commission via the electronic system referred to in Article 8.

11. Member States shall designate without delay the competent authorities for the issuing of import licences in accordance with this Article. The Member States shall communicate the details of the competent authorities as well as any changes in that respect to the Commission.

The Commission shall publish the details of the competent authorities and any changes thereto in the ‘C’ series of the Official Journal of the European Union.

12. The Commission shall lay down, by means of implementing acts, the template for and the format of the application for the import licence and shall indicate possible supporting documents to prove licit provenance of the cultural goods in question as well as the procedural rules on the submission and processing of such an application. In establishing those elements, the Commission shall endeavour to achieve uniform application by competent authorities of the import licencing procedures. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 13(2).

Article 5 - Importer statement

1. The import of the cultural goods listed in Part C of the Annex shall require an importer statement which the holder of the goods shall submit via the electronic system referred to in Article 8.

2. The importer statement shall consist of:

(a)a declaration signed by the holder of the goods stating that the cultural goods have been exported from the country where they were created or discovered in accordance with the laws and regulations of that country at the time they were taken out of its territory; and

(b)a standardised document describing the cultural goods in question in sufficient detail for them to be identified by the authorities and to perform risk analysis and targeted controls.

By way of derogation from point (a) of the first subparagraph, the declaration may instead state that the cultural goods in question have been exported in accordance with the laws and regulations of the last country where they were located for a period of more than five years and for purposes other than temporary use, transit, re-export or transhipment, in the following cases:

(a)the country where the cultural goods were created or discovered cannot be reliably determined; or

(b)the cultural goods were taken out of the country where they were created or discovered before 24 April 1972.

3. The Commission shall lay down, by means of implementing acts, the standardised template for and the format of the importer statement as well as the procedural rules on its submission and shall indicate possible supporting documents to prove licit provenance of the cultural goods in question that should be in the possession of the holder of the goods and the rules on processing of the importer statement. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 13(2).

Article 6 - Competent customs offices

Member States may restrict the number of customs offices competent to handle the import of cultural goods subject to this Regulation. Where Member States apply such a restriction, they shall communicate the details of those customs offices as well as any changes in that respect to the Commission.

The Commission shall publish the details of the competent customs offices and any changes thereto in the ‘C’ series of the Official Journal of the European Union.

Article 7 - Administrative cooperation

For the purposes of implementing this Regulation, Member States shall ensure cooperation between their customs authorities and with the competent authorities referred to in Article 4.

Article 8 - Use of an electronic system

1. The storage and the exchange of information between the authorities of the Member States, in particular regarding import licences and importer statements, shall be carried out by means of a centralised electronic system.

In the event of a temporary failure of the electronic system, other means for the storage and exchange of information may be used on a temporary basis.

2. The Commission shall lay down, by means of implementing acts:

(a)the arrangements for the deployment, operation and maintenance of the electronic system referred to in paragraph 1;

(b)the detailed rules regarding the submission, processing, storage and exchange of information between the authorities of the Member States by means of the electronic system or by other means referred to in paragraph 1.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 13(2) by 28 June 2021.

Article 9 - Establishment of an electronic system

The Commission shall establish the electronic system referred to in Article 8. The electronic system shall be operational at the latest four years after the entry into force of the first of the implementing acts referred to in Article 8(2).

Article 10 - Personal data protection and data retention periods

1. The customs authorities and competent authorities of the Member States shall act as controllers of the personal data obtained pursuant to Articles 4, 5 and 8.

2. The processing of personal data on the basis of this Regulation shall take place only for the purpose defined in Article 1(1).

3. The personal data obtained in accordance with Articles 4, 5 and 8 shall be accessed only by duly authorised staff of the authorities and shall be adequately protected against unauthorised access or communication. The data shall not be disclosed or communicated without the express written authorisation of the authority which originally obtained the information. However, such authorisation shall not be necessary where the authorities are required to disclose or communicate that information pursuant to legal provisions in force in the Member State in question, particularly in connection with legal proceedings.

4. The authorities shall store personal data obtained pursuant to Articles 4, 5 and 8 for a period of 20 years from the date on which the data were obtained. Those personal data shall be erased upon the expiry of that period.

Article 11 - Penalties

Member States shall lay down the rules on penalties applicable to infringements of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive.

By 28 December 2020, Member States shall notify the Commission of the rules on penalties applicable to the introduction of cultural goods in breach of Article 3(1), and of the related measures.

By 28 June 2025, Member States shall notify the Commission of the rules on penalties applicable to other infringements of this Regulation, in particular the making of false statements and the submission of false information, and of the related measures.

The Member States shall notify the Commission without delay of any subsequent amendment affecting those rules.

Article 12 - Cooperation with third countries

The Commission may, in matters covered by its activities and to the extent required for the fulfilment of its tasks under this Regulation, organise training and capacity building activities for third countries in cooperation with Member States.

Article 13 - Committee procedure

1. The Commission shall be assisted by the committee established by Article 8 of Council Regulation (EC) No 116/2009. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

Article 14 - Reporting and evaluation

1. Member States shall provide information to the Commission on the implementation of this Regulation.

For that purpose, the Commission shall address relevant questionnaires to the Member States. Member States shall have six months from receipt of the questionnaire to communicate the requested information to the Commission.

2. Within three years of the date on which this Regulation becomes applicable in its entirety, and every five years thereafter, the Commission shall present a report to the European Parliament and to the Council on the implementation of this Regulation. That report shall be publicly available and shall include relevant statistical information at both Union and national level, such as the number of import licences issued, of applications rejected and of importer statements submitted. It shall include a consideration of practical implementation, including the impact on Union economic operators, particularly SMEs.

3. By 28 June 2020 and every 12 months thereafter until the electronic system as set out in Article 9 has been established, the Commission shall present a report to the European Parliament and to the Council on the progress made in adopting the implementing acts as set out in Article 8(2) and in establishing the electronic system as set out in Article 9.

Article 15 - Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 16 - Application

1. This Regulation shall apply from the date of its entry into force.

2. Notwithstanding paragraph 1:

(a)Article 3(1) shall apply from 28 December 2020;

(b)Article 3(2) to (5), (7) and (8), Article 4(1) to (10), Article 5(1) and (2) and Article 8(1) shall apply from the date on which the electronic system referred to in Article 8 becomes operational or at the latest from 28 June 2025. The Commission shall publish the date on which the conditions of this paragraph have been fulfilled in the ‘C’ series of the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.