The Proposal for a Regulation of the European Parliament and of the Council on the import of cultural goods (hereinafter, the "Regulation"), which is available on the following link, supplements the existing common rules applied by the European Union through Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 (Recast) in respect of imports.

As a result of the instability and the escalating violence in the Middle East, several measures have been taken by the International Community to solve the problem. The United Nations has advocated joint efforts to suppress the financing of terrorist acts, such as, among other measures, the Security Council Resolution 2253 (2015) and particularly Resolution 2347 (2017) which focuses on the trafficking in cultural goods from these territories.

In 2018, the European Year of Cultural Heritage, the European Union has decided to strengthen its legal system to fight against the illicit trade in cultural goods, which is of major concern.

Some European regulations have previously attempted to regulate the trade in cultural goods, namely Council Regulation (EC) No 116/2009 of 18 December 2008 on the export of cultural goods, and, particularly with regard to the fight against the financing of terrorism, Council Regulation (EC) No 1210/2003 of 7 July 2003 concerning certain specific restrictions on economic and financial relations with Iraq along with Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation (EU) No 442/2011.

Pursuant to the Treaty on the Functioning of the European Union, article 3, the Union shall have exclusive competence in the customs union and in the common commercial policy, which facilitates the development of legislative acts on these matters. On that basis and pursuant to article 207 of the Treaty on the Functioning of the European Union, the Regulation before us is expected to be developed in accordance with the ordinary legislative procedure, expediting its adoption since it is not subject to the subsidiarity control mechanism. At present, the proposal and the report with the different amendments by the committees have been submitted to the European Parliament for a first-reading vote in plenary.

By adopting this Regulation the European Union intends to harmonise the definition of cultural good in the context of imports, as well as to ensure the exercise of due diligence when the cultural goods within the scope of this Regulation –cultural goods of at least 250 years old (Annex I)– are imported into the common market: In this way 28 legal systems (27 after Brexit) and their different approaches to the trade in cultural goods would be set aside to take forward work on the creation of a single market of cultural goods, which would result not only in increased security but also in greater liquidity. Additionally, the Regulationn would resolve outstanding issues such as port-shopping, whereby cultural goods are brought into the European Union customs territory through Member States with less strict regulations and can then benefit from the free circulation of goods.

The Regulation seeks the establishment of a single import licence from the competent authorities in the Member State of entry enabling the free circulation of the good in question, which will further require the submission of an importer statement. A penalty system for infringement of the Regulation is expected to be developed by each Member State.

This Regulation may have a significant and interesting impact on Spain. Firstly, as this Regulation puts it, the goal is to build a common European awareness and sensitivity to the trade in cultural goods on the basis of common rules. As expressly stated in the Regulation, its provisions are fully compatible with the system established by the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970 (hereinafter, the "UNESCO 1970 Convention"), which further increases legal security as regards to Brexit.

Imports from the United Kingdom would be governed by the Regulation (along with the UNESCO 1970 Convention), enabling a single import framework and preventing each Member State from entering into bilateral agreements with the United Kingdom after Brexit.

One of the most alluring aspects of the future enforcement of the Regulation is its potential impact on article 32 of Law 16/1985, of 25 June, on the Spanish Historical Heritage (Ley del Patrimonio Histórico Español). The free circulation of imported cultural goods under the Regulation would expedite the system set forth by the said article with regard to the trade in cultural goods within the Single Market. It should be noted, however, that article 36 of the Treaty on the Functioning of the European Union provides an exception for "the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property", leaving this triad under a certain control of the State Administration. Lastly, it should be stressed that 220 amendments to the proposal have been submitted by the legislative committees and, therefore, the final version could differ from the present proposal to a greater or lesser degree.