ang-top-sx   ang-top-dx


ang-bot-sx   ang-bot-dx
studio collaboratori pareri dello studio aree di attivitą dove siamo
ang-top-sx   ang-top-dx
  legal advices

Object: Purchase of archaeological material from a foreign country.

Regarding the possibility and the policies for the purchase of archaeological material from a foreign country concerning the state and structure of ancient roman legions, with the purpose of setting up an exhibit in the National territory.

On this matter the law maker has always stressed the ? to monitor every possible such movement of goods, banning their commercialization, in order to counter illegal trade and outflow of any class of object of clear historic value to our country.

For nearly seventy years Law No. 1089 of June 1st 1939 has represented the main legislature on this merit, which underlying theme deals with subjecting cultural heritage objects to norms having public law relevance.

First articles of law clearly express what objects are to be considered "cultural heritage objects", including those not only of clear historic and artistic value, but also archaeological objects discovered throughout the entire national territory.

An example of the subjecting to norms of public law relevance can be seen in paragraph 3, on the restoration of cultural heritage objects is mentioned, and where the clear limitation to the principle of the civil code regarding the right to property as per Art. 832, in which is affirmed the possibility for owners to enjoy and dispose fully and on exclusive basis of the object, keeping to the limits set by juridical ordinance. The law maker of 1939 intended to grant the owner the enjoyment of the object, but in a way compatible with the public interest; as per the possibility to dispose of the object, the exclusivity of such right is subject to public control, which may take form in three different ways: traceability control (the public administration is to be kept updated of all translation movements effecting rights on the objects), hindering actions (the public administration may prevent any movement of the object hindering public enjoyment), by purchase (the public administration retains the right to purchase an object, in order to destine it to public use).

An additional limitation inferred is given by the bind of inalienability of objects belonging to public bodies or to the State.

Law No.1089/39 has in any case left the possibility to alienate the aforementioned objects, making an explicit distinction on whether the alienation is perpetrated by the State or a Public Body, Private Body, or private subject.

The alienation of objects belonging to private bodies (whether they be juridical personas or not) is allowed as long as there is an authorization from the public administration, which can be denied when and only when there is a clear likelihood for a serious damage to the Country?s cultural patrimony or the public enjoyment of the object (see art. 26); on this matter the administration is subject to the obligation of motivating clearly and realistically the reasons for which the said permit is denied (in which case the competent administration may dispose for an authorizing intervention).

Regarding private subjects no authorization is required, except in case of collections or series of objects, for which stands the obligation of notification to the Ministry of Cultural Assets in case of transfer entailing compensation or free, with which the ownership or the possession of cultural heritage objects considered subject to bind is transferred (should such notification be missing, the transaction deed is considered void).

Legislative Decree No. 42 of January 22nd of 2004 integrated and substituted the previously standing legislature, considered outdated and obsolete; such policies not only referred to the safeguard of objects of historic and cultural value, but it also meant to include within the genus of the national cultural patrimony, besides cultural assets in the strictest sense (works of art, archaeological objects, musical texts, films, etc?), an additional class of cultural heritage goods (in the broader sense), constituted by the Italian landscape.

Art. 2, paragraph 2, defines as cultural heritage objects all things movable and immovable that, pursuant articles 10 and 11 of the Civil Code, are of artistic, historic, archaeological, ethno-anthropological, and with archival and bibliographic interest [?]as testimonies having value of civilization, leaving in any case the possibility for further additions to such list, whether they be property of the State, the Region, or of other public bodies, territorial or non, and private juridical persons or private subjects.

The quoted decree certainly did not re-dimension the extent of safeguard actions for things included in the said category, but left in any case the possibility for objects subject to such movement binds, granting the competent public bodies the faculty to monitor the transfer of the same. Art. 72 of the Legislative Decree 42/2004 rules the entry within the national territory of such objects, affirming that the shipping to Italy from a EU member State or the importation of an object from another State [?] is certified, upon request, by the Exports Office (Ufficio Esportazione del Ministero per i Beni e le Attivitą culturali).

Such certificates are issued, as far as the Lombardy Region is concerned, by the Export Office at the Superintendence for the Historic, Artistic, and Demo-anthropologic Patrimony, and are subject to the exhibition of documents suitable for the identification of the object (i.e., photographic material, etc.) and to sufficient evidence to prove the origin in the foreign State where it was sent from or to.

The new Decree does not in any way reduce the Public Administration?s powers, upholding the owner?s limitations to the right to enjoy of the object or objects: in fact said policy follows in the same footsteps of the legislator in 1939, underlying the obligation to keep the documents pertaining to the archaeological material, as the competent administration and the organs of judiciary police are always and at any moment entitled to demand to view such documents, in force of the powers exercised in order to grant traceability , and with the purpose of having full knowledge of all transactional movements of the objects subject to cultural heritage bind.

Back to legal advices

ang-bot-sx spacer ang-bot-dx
ang-top-sx spacer ang-top-dx
  studio legale tasca
MILANO 20129, Piazza Cinque Giornate n.3 Tel: (39) 0254100378 - 5466066
ROMA 00195, Via XX Settembre n.26 Tel: (39) 06 42016234 - 42391396

Vat number: 11157430155
ang-bot-sx   ang-bot-dx