Following a court ruling, the Italian Ministry of Culture has issued a potentially ground- breaking statement challenging current thinking on cultural heritage and patrimony and reinforcing private property rights.
Essentially the statement, which was issued to little fanfare, addresses conflicting priorities between private property rights and the Italian state’s desire to protect its cultural heritage, and how this conflict addresses proof of ownership.
Recent years have seen a significant shift in attitudes among state authorities and law enforcement toward the idea of reversing the burden of proof regarding the legitimate ownership of antiquities and ancient coins. Typically, property owners faced with claims that their goods may have been illegally excavated or exported from their places of origin had the burden of proving legitimate provenance for their goods or losing them to law enforcement. This is despite private property rights being enshrined in all fundamental clauses of international human rights conventions and in both common law and natural justice. Guilty until proved innocent has almost become the new normal.
Now, however, comes evidence of a push back against this fundamentally undemocratic idea. This Ministry of Culture statement is one of them, and it has an additional welcome twist. It arose after Italy’s Directorate-General of the Department of Archaeology, Fine Art and Landscape sought advice from the legal department on how to interpret Article 72 of the Cultural Property Act, the article that governs the import of archaeological (numismatic) objects originally from Italy and demands extensive proof of origin.
The legal department’s head, renowned professor of law Antonio Tarasco, came back with a surprising statement, acknowledging competing views on this issue. On the one hand, some lawyers argue for the current state of things, namely that protecting Italian cultural heritage is a priority that requires significant objects to become state property unless private ownership can be proved (reversal of the burden of proof). On the other hand, some lawyers argue that private ownership should take priority except in the most exceptional circumstances.
This dichotomy led Professor Tarasco to look at the part documentation has played over the years in establishing ownership rights for coins in Italy. The first thing he noted was that as late as the 1980s, it was highly unusual for dealers or collectors to retain proofs of purchase. But he also noted that in 2009, his department declared that “proper documentation issued by the countries of origin” was essential in establishing the lawful circulation of cultural heritage objects. Importantly, this meant that any certification issued at the time of importation had to be renewed at the appropriate time or the Italian State might take possession of the item in question.
Fast forward to 2021, however, and Italy’s Court of Cassation – the highest appeal court which focuses only on how laws are interpreted – re-established the priority of private ownership without automatically having to provide supporting documentation (innocent until proven guilty).
In his new statement, Professor Tarasco points out that this meets the test of proportionality and reasonableness, which is what art industry trade associations such as the Art Dealers Association (ADA) and International Association of Dealers in Art and Antiquities (IADAA) have been arguing needs to happen as a result of EU import licensing regulation 2019/880. Of particular note is what Professor Tarasco has to say about this: “Forcing citizens (be they collectors or professional numismatists who buy abroad) to provide (almost fiendishly extensive) proof of the legitimate origin of the coins they buy, which must even date back to before 1909 [when Italy’s patrimony law was passed], is ultimately making it more difficult to buy – and therefore import into Italy – significant numismatic material that may one day enter public collections.”
The welcome twist Professor Tarasco adds at the end of his statement argues that making imports more difficult is actually damaging to Italian cultural heritage: “If we look closely, we can see that this approach – even if applied with good intentions – will not result in Italy protecting its national cultural property, but rather losing it.”
This is fascinating, coming as it does from the head of the legal department of Italy’s Ministry of Culture. With all this in mind, how does Professor Tarasco view Italy’s ap-plication of Article 4 of the EU regulation 2019/880, which takes effect in June 2025? That section insists on the sort of “fiendishly extensive” documentation and evidence that effectively reverses the burden of proof in the way he decries here. And how does he feel about Italy’s Memorandum of Understanding with the United States, which does exactly the same?
Professor Tarasco has highlighted the importance of proportionality and reasonableness here – qualities echoed in the 2019 European Commission President’s guiding principles for policy. If the Italian Government’s leading legal authority on the is-sue, together with its highest court, acknowledges that private property rights have priority over what may be seen as the national interest in this way, how can Italy continue to move forward with either the new EU law or its MoU?
