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Arts Council England not “competent authority” under EU law to issue export license to Switzerland in respect of £10 million Giotto painting, Madonna con Bambino

R (Simonis) v Arts Council England [2018] EWHC 1822 (Admin)

Related Member(s):
Aidan O’Neill QC (Scot) QC, Chris Buttler QC
Related Practice Area(s):
EU Law

The claimant and the Ministero Dei Beni E Delle Attività Culturali e Del Turismo, the Italian Ministry of Cultural Heritage and Activities and Tourism, have been in dispute over the validity of a series of export licences and a certificate for free movement issued by the Italian authorities in respect of an oil painting on wood panel entitled “Madonna con Bambino” (the Painting). This artwork is now attributed to Giotto di Bondone or his school (1266 – 1337) and has an estimated value of £10 million [1-2].

On 8 Apr 2015 the claimant, applied to the defendant, the Arts Council England, for a licence to re-export the Painting to Switzerland under the EC Regulation 116/2009, art 2, asserting an unfettered right to move the Painting outside the EU. That application was eventually refused by the Council on 8 May 2017 with the Council concluding that it was not the “authority” “competent” under EU law to issue an export licence to Switzerland in respect of the Painting. The “competent authority” under EU law for the grant was the Italian authorities and the basis for this decision was that the Painting had not been “lawful[ly] and definitive[ly]” dispatched to the UK from Italy within the meaning of art 2 (2)(b). Instead the defendant offered to issue an export licence for the return of the Painting to Italy. The claimant sought to challenge that decision [4-5].

The Court dismissed the claim holding that the Arts Council England was not “competent authority” under EU law to issue an export licence to Switzerland in respect of the Painting. However it did grant permission to appeal to the Court of Appeal.

Chris Buttler and Aidan O’Neill QC were involved in this case.