Explanatory Memorandum to COM(2017)375 - Import of cultural goods - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2017)375 - Import of cultural goods. |
|---|---|
| source | COM(2017)375  |
| date | 13-07-2017 |
1. CONTEXT OFTHEPROPOSAL
• Reasons for and objectives of the proposal
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. On 15 March 2017 the Directive on combating terrorism was adopted, including provisions on criminal sanctions for individuals or entities who provide material support to terrorism5.
The intention to prepare a legislative proposal was also announced in the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy Joint Communication to the European Parliament and the Council Towards an EU strategy for international cultural relations.6
At the global level, this proposal should also be seen in the light of the declaration of G20 Leaders of 8 July 20177, in which they affirmed their commitment to tackle the alternative sources of financing of terrorism, including the looting and smuggling of antiquities.
The Regulation and the actions described below also respond to the European Parliament Resolution of 30 April 2015 on the destruction of cultural sites perpetrated by ISIS/Da’esh, which called, inter alia, for strong actions to disrupt the illegal trade of cultural goods and the development of European training programmes for judges, police and customs officers, government administrations and market players more generally, as well as for awareness-raising campaigns in order to discourage the purchase and sale of cultural goods coming from illicit trade.
The Council, in its Conclusions 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.
On 24 March 2017, with Resolution 2347 (2017)8, the Security Council of the United Nations requested Member States to take steps to counter the illicit trade and trafficking in cultural property in particular when originating from a context of armed conflict and conducted by terrorist groups. Also in March 2017, the Culture ministers of the G7 group have invited all States to prohibit the trade in looted cultural property trafficked across borders while stressing
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
European Parliament resolution of 9 July 2015 on the European Agenda on Security (2015/2697(RSP))
European Council Conclusions of 18 December 2015
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.6-21
JOIN(2016) 29 final
www.g20.org/gipfeldokumente">https://www.g20.org/gipfeldokumente
unscr.com/en/resolutions/doc/2347
2
3
4
5
6
7
8
the importance of closer cooperation among international judicial and law enforcement authorities9.
In the Rome Declaration of 25 March 2017, the Leaders of 27 Member States and of EU institutions have also re-affirmed their commitment to the protection of cultural heritage and cultural diversity. The fight against the illicit trade in cultural goods will be a key European action in the course of the 2018 European Year of Cultural Heritage
The initiative aims to 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, especially archaeological objects in source countries affected by armed conflict. For this purpose it proposes to: establish a common definition for cultural goods at import; ensure importers exercise diligence when buying cultural goods from third countries; determine standardised information to certify the goods are legal; provide for effective deterrents to trafficking; and promote the active involvement of stakeholders in protecting cultural heritage.
The proposal is not linked to REFIT.
• Consistency with existing policy provisions in the policy area
Currently, there are no common rules regarding the import of cultural goods from third countries, except Council Regulation (EC) No 1210/200310 of 7 July 2003 concerning certain specific restrictions on economic and financial relations with Iraq and Council Regulation (EU) No 36/201211 concerning restrictive measures in view of the situation in Syria, which provide for a prohibition of trade in cultural goods with these countries. The initiative aims to complement those two measures and also the existing EU legislation on the export of cultural goods (Regulation (EC) No 116/200912).
• Consistency with other Union policies
The proposed Regulation completes the EU legal framework on trade in cultural goods, which has included until now only legislation on the export of cultural goods13 and on the return of cultural objects unlawfully removed from the territory of a Member State14. As for imports, it was limited to restrictive measures on trade in cultural goods from Iraq and Syria.
The implementation of the provisions in the Regulation will be accompanied by a series of EU actions – ongoing or about to be launched – addressing the factors driving both the supply of and the demand for illicitly traded cultural goods, such as the uneven level of preparedness and application of due diligence standards in the Member States, and the weak capacity in certain countries at the origin of the traffic, particularly in fragile contexts.
Combating the trafficking of cultural property is part of the EU fight against organised crime. Following the decision of the Justice and Home Affairs Council of 18 May 201715, enhanced
10
12
15
www.beniculturali.it/mibac/multimedia/MiBAC">www.beniculturali.it/mibac/multimedia/MiBAC OJ L 169, 8.7.2003, p. 6. OJ L 16, 19.1.2012, p. 1.
Council Regulation (EC) No 116/2009 of 18 December 2008 on the export of cultural goods; OJ L 39, 10.2.2009, p. 1. OJ L 324, 22.11.2012, p. 1.
Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 (Recast); OJ L 159, 28.5.2014, p. 1–10. data.consilium.europa.eu/doc/document
9
11
operational cooperation between law enforcement authorities will continue under the EU Policy Cycle on serious and organised crime for 2018-2021.
Through a Pilot Project in 2017-18 the EU will team up with the United Nations Educational, Scientific and Cultural Organisation (UNESCO) to design training modules on the trafficking of cultural goods for the relevant professional groups, including police officers. The same Pilot project will also fund a comprehensive study on the dimensions of illicit trade in cultural goods focused on routes, volumes and operational modes of the trafficking and on the use of new technologies to combat it.
Capacity building of law enforcement authorities is also provided through the Technical Assistance and Information Exchange instrument (TAIEX) of the EU. Several workshops on combating the illicit trade in cultural goods have been organised in recent years: for instance in the Former Yugoslav Republic of Macedonia, Turkey, Kosovo, Bosnia and Herzegovina, and Serbia. Once available only in the countries belonging to the Neighbourhood, TAIEX assistance can now be deployed also elsewhere in the world.
Experts in cultural heritage increasingly participate in joint Post Disaster Needs Assessments and Recovery and Peace-Building Assessments missions of the EU, the UN and the World Bank to help assess damages and risks to cultural heritage, including trafficking.
This list of initiatives is not exhaustive. Additional measures aimed at facilitating implementation of the proposed regulation and supporting its objectives will be put in place in the near future.
The proposal is also in line with and contributes to other Union policies, notably:
– the European Agenda on Security16, which emphasises the importance of the fight against terrorism and organised crime;
– the Action Plan for strengthening the fight against terrorist financing, which lists a number of policy and legal initiatives (including this proposal) to be taken as part of a comprehensive approach in this area; and
– the Directive of the European Parliament and of the Council on combating terrorism and replacing Council Framework Decision 2002/475/JHA on combating terrorism, which includes provisions on criminal sanctions for individuals or entities who provide material support to terrorism.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The EU has exclusive competence for commercial policy and for customs legislation, such as customs controls measures at import, under Articles 3 and 207 of the Treaty on the Functioning of the EU (TFEU).
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, for instance, the case of Regulation (EC) No 116/2009 on the export of cultural goods, which was adopted on the basis of Article 207 TFEU.
16
• Subsidiarity (for non-exclusive competence)
• Proportionality
The preferred policy choice combines regulatory and non-regulatory policy options. The scope of the proposed regulatory measure covers a wide typology of cultural goods without impeding legitimate trade, thanks to a 250-years minimum age limit for these goods. This age limit represents a balanced approach in line with the rules in place in some other jurisdictions and will help ensuring a coherent approach at the international level. Moreover, the level of scrutiny before entry in the Union's customs territory is differentiated, based on the perceived risk from pillage for certain categories of cultural goods, such as archaeological finds or parts of monuments.
See reference to proportionality considerations in the Impact Assessment report, in particular, sections 7.3.5 and 7.4.4 thereof.
• Choice of the instrument
A European Parliament and Council Regulation is the appropriate instrument in this case, in accordance with Article 207 TFEU, which is the legal basis of the proposal.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER
Contents
ANDIMPACTASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
Currently there is no existing EU legislation covering the import of cultural goods, therefore the present proposal is unrelated to ex-post evaluations or fitness checks.
• Stakeholder consultations
The Commission organised the following stakeholder consultations:
1. An Open Public Consultation17 on the Europa server, which was open for contributions to all stakeholders from 23 October 2016 to 23 January 2017. The questionnaire was designed to capture the views and opinions of the following categories of stakeholders: citizens, enterprises, professional associations and interests representatives, NGOs and civil society, public authorities. It was targeting the issue of illicit trafficking in cultural goods; the actions to take regarding the import of cultural goods in order to fight illicit trade and terrorist financing, the impact and parameters of possible legislative measures. The Commission received 305 contributions in total.
While there is strong support for the Union adopting customs rules at import, opinion is more divided on whether such measures would contribute against organised crime and terrorist financing; enterprises mostly considering that they wouldn't. Difficulty to determine licit provenance is considered a weakness of the current system. Rarity, historical/educational value, age and whether a cultural good originates in a conflict zone are considered the main criteria for defining the goods which should be subject to a measure. Enterprises seem to favour action to be taken primarily by the exporting countries to protect their heritage –with help from the EU, whereas public authorities and civil society strongly favour Union legislation empowering customs to prevent the entry of illicit cultural goods in the EU.
For the synopsis report of the consultation, see: https://ec.europa.eu/info/consultations_en
17
Regarding documentation requirements for proving licit provenance, enterprises seem to favour mostly a form of self-certification (affidavit), whereas public authorities favour export certificates (in fact, from written submissions it appears that they would prefer to issue import licences on the basis of export certificates).
2. The Commission has also held three meetings of the Expert Group on customs issues related to cultural goods (representatives from customs and cultural authorities from the Member States), where the initiative was presented, followed by an in-depth exchange of opinions and a discussion on the various challenges and objectives. The Member States delegates were also invited to submit position statements in writing on the various options and several of them did. While all Member States agree that action should be taken at importation, there was differing support for the specific choice of measures. A large group of Member States said they are in favour of import licences for a limited number of categories of cultural goods, namely, those that are most at risk in the current geopolitical context.
3. Member States customs and cultural authorities were also surveyed with regard to potential or expected impact of various regulatory options to administrations (cost or other burden).
Of the 16 replies received, 12 provided partial information on how much time would be needed to accomplish formalities related to the regulatory policy options. Most Member States were not able to provide any estimates, stating that the structure of their current system and procedures does not permit it. The results (replies extrapolated using the Standard Cost Model) were largely inconclusive as the estimates provided covered only some policy options and not others.
4. A survey was also conducted by an external contractor in the framework of the study titled Fighting illicit trafficking in cultural goods: analysis of customs issues in the EU18. Detailed questionnaires were addressed to businesses, associations, public authorities and international organisations. The conclusions of the survey, as included in the study were used in the Impact Assessment report, mostly those relating to experience with implementing the EU regulation on the export of cultural goods and the two sanctions Regulations on Iraq and Syria.
• Impact assessment
An impact assessment has been conducted19 and the Regulatory Scrutiny Board has delivered initially a negative opinion20, then a positive opinion21 on resubmission, after revising the problem definition and the identified objectives and providing a clearer and more structured presentation and content of the policy options considered.
The options that have been selected to tackle the problems identified are compatible and would 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. This main objective is expected to be achieved without creating unnecessary administrative burdens. In particular, it would be done through:
1. Raising awareness of potential buyers, in particular tourists and travellers, and of customs and other law enforcement authorities.
Not published yet.
See: ec.europa.eu/transparency/regdoc/?fuseaction=ia See: ec.europa.eu/transparency/regdoc/?fuseaction=ia See: ec.europa.eu/transparency/regdoc/?fuseaction=ia
20
21
2. A Regulation providing for customs controls measures applying to cultural goods declared for release for free circulation or placement under other special customs procedures (such as placement in a free zone) with the exception of goods in transit. The controls concern cultural goods, as those are defined in the 1995 International institute for the unification of private law (UNIDROIT) Convention on Stolen or Illegally Exported Cultural Objects, of a minimum age of 250 years. For these cultural goods, the person who seeks to introduce them into the Union's customs territory must provide the following documents in order to prove licit provenance, i.e. legality of export from the source country:
- for archaeological objects, parts of monuments that have been dismembered and for rare manuscripts and incunabula, the person must apply to the competent authority designated for this purpose by the Member State of entry for an import licence, by providing proof of licit export of the goods from the source country;
- for all other cultural goods, the person must submit to customs a signed statement (affidavit) certifying that the goods were legally exported from the source country, accompanied by a standard Object ID document, describing the object in detail. Customs register and keep a copy of these documents.
The selected policy options are expected to achieve the main objective stated above, as well as a number of specific objectives as follows:
By choosing the 1995 UNIDROIT Convention definition for cultural goods, together with a minimum age of 250 years the option establishes a common definition of cultural goods in the context of importation which is proportional to the protection needed (wide typology of goods) without impeding legitimate trade. The requirement to provide information on the cultural good and its provenance either by applying for an import licence or by filling in a standard Object ID form ensures that EU buyers and importers exercise diligence regarding the legality of cultural goods brought into the EU. At the same time, standardised documentation requirements at import regarding the identity of cultural goods brought into the EU facilitate greatly customs controls. The provision of penalties for infringements (enacted by Member States) provide for more effective deterrents to trafficking in cultural goods.
The choice of 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. From the point of view of compliance cost, there might be some costs involved in the preparation of an application for an import licence for these goods, but they represent only a very small fraction22 of the cultural goods imports.
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.
22
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 goods. As a result, the assessment performed is mostly qualitative.
Lastly, organising awareness-raising campaigns for potential buyers and for customs and other law enforcement will promote the active involvement of stakeholders in reducing trafficking.
• Fundamental rights
The envisaged measures are likely to impact the following rights which are enshrined in the following Articles of the Charter of fundamental Rights of the EU ('CFREU'):
– the freedom to conduct a business (Article 16 CFREU); and
– the right to property (Article 17 CFREU).
In cases of suspected false statements in relation to the cultural goods, authorities may decide to retain the goods temporarily, thereby impacting the right to property and freedom to conduct a business.
Article 52 CFREU specifies that any limitation of the recognised rights and freedoms must be provided for by law, respect the essence of the rights and freedoms, meet objectives of general interest recognised by the Union and be proportionate.
The measures strike a careful balance between the relevant rights and the legitimate interests of society by taking an approach that is efficient (achieves the objective) but affects the rights as little as possible.
4. BUDGETARY IMPLICATIONS
The proposal has no significant implications for the budget of the European Union.
5. OTHERELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The Commission will be empowered to adopt implementing acts in order to provide for the specific forms to use (e.g. licences forms, application forms, affidavit text, etc.) and the relevant procedural details.
The Commission will monitor the performance of the legal instrument and 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.
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 future23 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 three years after the date of application of the Regulation and every five years thereafter. The 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 effectiveness of the non-legislative, accompanying initiatives will be assessed by ex post evaluation of the awareness-raising campaigns and trainings.
• Detailed explanation of the specific provisions of the proposal
Article 1 enunciates the subject matter of the Regulation and its scope of application.
Article 2 provides for a series of definitions of terms used for the purposes of the Regulation.
Article 3 enunciates the principle according to which the entry of cultural goods into the customs territory of the Union is only permitted when an import licence has been obtained for them or an importer statement is submitted. Cultural goods can still enter temporarily for exhibitions or academic and scientific research, or in cases where they need a temporary refuge from destruction and loss, when the source country is affected by armed conflict or is suffering a natural disaster.
Article 4 provides for the cases where an import licence is required, the person who has to apply for it, the conditions and modalities and from which Member State authority it can be obtained. In order to avoid circumvention, when the exporting country is not the one where the object was discovered or created ('source country'), a differentiation is made depending on whether the exporting country is a signatory State of the 1970 UNESCO Convention or not. When it is a signatory and thus a country committed to fighting against illicit trafficking of cultural property, the applicant has to demonstrate lawful export from that country; if not, the applicant has to demonstrate lawful export from the source country.
Article 5 provides for the cases where an importer statement will be required and for the standardised document describing the goods. The standardised document will be an Object ID, which is an international standard for describing cultural objects. It is being promoted by major law enforcement agencies, 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. The Object ID is known and used by many Member States for cataloguing objects in digital databases by their specialised police units, as a rapid means to communicate information and for setting minimum information requirements for museums. A similar distinction is made, as in Article 4, between exporting countries which are signatory States of the 1970 UNESCO Convention and those which are not.
Article 6 refers to control and verification actions by customs.
23
First at EU tariff nomenclature level by creating appropriate TARIC (Integrated Tariff of the European Communities) subdivisions for the purposes of applying EU customs measures and later on, at international level, by the World Customs Organisation which has clearly stated their intention to amend Chapter 97 of the Harmonised System and create in it more subdivisions.
Article 7 provides for the periodic publication by the Commission of the lists of competent customs offices designated by the Member States for the purposes of the Regulation. This publication is considered necessary for informing economic operators.
Article 8 provides for the case where cultural goods may be retained by customs because it cannot be demonstrated that the cultural goods in question have been legally exported from the source country.
Article 9 calls on Member States to organise cooperation between their competent authorities and provides for the future development of an electronic database to facilitate the storage and exchange of information, in particular importer statements and importer licences issued.
Article 10 requires from Member States to foresee penalties for infringements to this Regulation in accordance with their internal legal systems.
Article 11 calls on Member States to organise appropriate training sessions for the authorities that they have designated for the implementation of the Regulation, as well as awareness-raising campaigns in order to inform potential buyers about the legal framework and dissuade them from buying unprovenanced cultural goods from third countries.
Article 12 provides for the power to adopt delegated acts by the Commission. This empowerment will allow the Commission to adapt, if necessary, the minimum age threshold or the categories of cultural goods subject to import licence (for reasons of changing circumstances and based on experience gained). As the World Customs Organisation has declared a clear intention to add more subdivisions to the Harmonised System (HS) Chapter 97 (where the grand majority of cultural goods are classified for tariff and statistical purposes) in the future, the Commission needs to be able to update the relevant tariff codes in the Annex to the Regulation accordingly.
Article 13 provides for the designation of a committee that will assist the Commission with the implementation of the Regulation. For reasons of coherence and efficiency, it is appropriate to designate for this purpose the committee which is already assisting the Commission in the context of Regulation (EC) No 116/2009 on the export of cultural goods.
Article 14 covers reporting and evaluation. The Commission will periodically gather information from the Member States on the implementation and performance of the Regulation, based on a number of indicators. Appropriate questionnaires will be addressed to the Member States in order to gather the same type of information, based on which the Commission will establish a report to the European Parliament and the Council. The first report will be submitted three years after the starting date of implementation of this Regulation.
Article 15 provides for the entry into force of the Regulation.