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The Court of Appeal has today dismissed an appeal against the judgment of Mrs Justice Carr DBE in R(Simonis) v Arts Council England [2018] EWHC 1822 (Admin).

The case is the first of its kind to determine issues relating to the common EU framework on export licensing for cultural objects, and provides clarity to national authorities, art dealers and auction houses across the European Union. In a detailed judgment, the Court examined the context and principles applicable in this area. In one of the first high-profile judgments after ‘Brexit day’, the Court also examined the effect of the EU-UK Withdrawal Agreement and EU exit legislation during the transition period (at [9]-[11]). 

The case concerned an oil painting on wood panel entitled “Madonna con Bambino” (116 x 69 cm) – which is now attributed to the artist Giotto di Bondone (1266-1337) (or his school). 

The claim turned on whether the painting had been “lawfully” dispatched to the UK, and therefore whether the Arts Council of England (ACE) was competent to grant the Claimant a licence to remove it from the European Union, within the meaning of Article 2(2)(b) of EC Regulation 116/2009. The Appellant also sought to challenge the compatibility of the Italian licensing system for cultural property with EU law.

The Court (Green LJ) dismissed the appeal, finding that:

(i) The concept of ““lawful and definitive dispatch” refers to the law of the state of physical export or dispatch, in this case Italy” (at [59]), in light of the language, structure and purpose of the EU coordinating rules (at [62]-[70]);

 (ii) An English Court should “exercise considerable caution and vigilance” before ruling upon the legality of the law of another Member State under EU law (at [84]);

(iii) In such a challenge “there is an evidential burden on a claimant to show that prima facie a measure falls within Article 35 TFEU.  This includes doing the very best that can be done to identify with precision the actual measure in dispute so that, then, the state can marshal its arguments and evidence in as focused a way as it can in order to meet its burden of proof” (at [92]).  The State was not required to produce evidence to justify all measures restricting the free movement of goods ([92]-[100]). On the facts, “the duty on putative exporters to give notice as part of a licence application system is justified” and as such Italian law did not fall foul of the EU law free movement of goods, which recognised a substantial discretion for Member States to protect their national treasures (at [101]-[109]).

The full judgment can be read here.

Ben Jaffey QC and Ravi Mehta acted for the successful Respondent, the Arts Council England and the Secretary of State for Digital, Culture, Media and Sport (the 2nd Interested Party).