Spotlight: art transactions in Italy
i Private sales and auctions
The European Anti-Money Laundering Directive (the AML Directive)36 explicitly includes art galleries and auction houses among the entities obliged to carry out anti-money laundering controls. Thus, art galleries and auction houses involved in transactions (single or multiple) whose values amount to €10,000 or more are subject to anti-money laundering legislation, as are the persons who either preserve or trade in works of art or act as intermediaries in the trade of works of art, when this activity is carried out within freeports and the value of the transaction (even if divided) or of any related transactions is equal to or greater than €10,000.37 Legislative Decree No. 125 of 4 October 2019 implemented the AML Directive into the national jurisdiction.
Irrevocable bids from bidders who will be compensated if their bid is not successful are permitted. Likewise, guaranteed sales to the benefit of the consigner are permissible under Italian law.
ii Art loans
Art loans are subject to authorisation by the Ministry of Cultural Heritage if the work of art is of cultural interest, under Article 48 of the CHL. Art-backed loans can only be granted by intermediaries authorised by the Bank of Italy and are subject to supervisory controls.
No special rule relates to immunity from seizure, notwithstanding several bills of law that have been proposed in recent years (the last of which, DLL S.358, was presented to the Senate on 18 May 2018).38
iii Cross-border transactions
Regulation (EU) 2019/880 sets forth the conditions for the introduction of cultural goods within the EU territory and the conditions and procedures for their import, to protect cultural heritage against illicit trade in cultural goods, specifically when aimed at financing terrorism. The Regulation foresees a system of import licences for specific categories of cultural goods and importer statements for other categories of cultural goods.
Cultural goods either created or discovered in the customs territory of the EU (covered by Directive 2014/60/EU) fall outside the scope of the Regulation. The import licensing system provided for by EU Regulation 2019/880 will enter into force at the date on which the electronic system referred to in Article 8 of the same Regulation becomes operational or from 28 June 2025, at the latest.
Finally, the International Institute for the Unification of Private Law Convention of 1995 on stolen or illegally exported cultural objects has been ratified in Italy by Law No. 213/1999 and is currently in force. When applicable, it obliges the possessor of a stolen cultural object to return it to its rightful owner, entitling the good-faith acquirer to a compensation.39 The acquirer has to prove their good faith.40
Regarding recent legal developments in cross-border transactions of cultural property, see Section III.ii.
iv Art financeNon-possessory liens
Law No. 119 of 30 June 2016 introduced the possibility for professional dealers to create non-possessory liens to secure credits related to their business activities (which are not private loans). These can only be granted over movable property intended for their business activities. This lien must be registered in the online register managed by the Revenue Agency of the Ministry of Economy and Finance.
The Internal Revenue Service (IRS) recently affirmed that sculptures created with 3D printers are not subject to the special 10 per cent VAT regime that benefits works of art. According to the IRS, as 3D sculptures are not cast entirely by the artist’s hand, they cannot be considered works of art, giving a narrow interpretation of the definition of artwork stipulated in Law Decree No. 410 of 23 February 1995.
Under the AML Directive, art galleries and auction houses have specific transparency obligations surrounding clients and art transactions. These include an obligation to carry out adequate verification on clients when transaction values total €10,000 or more (even in the case of multiple related transactions) and signal any suspicious activity to the Bank of Italy (the controlling authority).