Commentary on the ruling no. 25343 of 2023: the transfer of cultural assets abroad

The recent ruling of the Court of Cassation no. 25343 of March 29, 2023, has sparked a lively debate regarding the regulations concerning the transfer of culturally significant assets abroad. In particular, the Court reiterated the importance of establishing the "exceptional significance" of a cultural asset before a crime can be configured under Article 518-undecies of the Penal Code. This decision provides food for thought on the protection of Italian cultural heritage and the methods of exporting works of art in an increasingly globalized context.

The regulatory context

The crime of unlawful transfer of culturally significant assets is governed by Legislative Decree no. 42 of January 22, 2004, currently provided for by Article 518-undecies of the Penal Code. The ruling in question fits into a regulatory framework that has undergone significant changes, particularly with Law no. 124 of August 4, 2017, which introduced the necessity of assessing the cultural significance of assets before their export.

Unlawful transfer abroad of culturally, historically, or artistically significant items - Work by a non-living author, created over seventy years ago, valued at less than 13,500 euros - Crime under Article 174 of Legislative Decree no. 42 of 2004 (now Article 518-undecies of the Penal Code) - Existence - Conditions - Case. Regarding the export of culturally significant assets, following the amendments introduced by Law no. 124 of August 4, 2017, the transfer abroad of an artistic work by a non-living author, created over seventy years ago, valued at less than 13,500 euros, constitutes the crime under Article 174 of Legislative Decree no. 42 of January 22, 2004 (currently provided for by Article 518-undecies of the Penal Code), provided that the asset is declared to have "exceptional significance" by the competent administration in charge of managing the constraint. (In this case, the Court annulled with referral the decision to return a wooden crucifix from the seventeenth century on the grounds that it was necessary to ascertain, for the purposes of the abstract configurability of the crime, the "exceptional significance" of the cultural interest of the asset).

The implications of the ruling

The decision of the Court of Cassation has highlighted some fundamental aspects for the protection of cultural heritage. First of all, it emphasizes the importance of a thorough assessment by the competent administration regarding the cultural significance of assets. Secondly, it clarifies that it is not sufficient for a work to be valued at less than 13,500 euros to exclude the crime of unlawful transfer. The qualification of "exceptional significance" thus becomes a crucial criterion.

  • Need to ascertain the cultural significance of the asset
  • Assessment by competent authorities
  • Legal implications for the transfer of works of art

Conclusions

In conclusion, ruling no. 25343 of 2023 represents an important step forward in the protection of Italian cultural heritage. It clarifies that every transfer of cultural assets must be carefully evaluated and justified, especially when it comes to works by non-living authors. Industry operators and collectors must pay attention to these regulations to avoid legal consequences and to contribute to the safeguarding of our cultural heritage.

Bianucci Law Firm