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Article Italy: New Code of Cultural Heritage and Landscape

(May 20, 2016) On March 31, 2016, an updated version of the 2004 Code of Cultural Heritage and Landscape entered into effect in Italy.  (Legislative Decree No. 42 of January 22, 2004, Code of Cultural Heritage and Landscape, as Mandated by Article 10 of Law No. 137 of July 6, 2002 (L.D. No. 42), GAZETTA UFFICIALE No. 45 (Feb. 24, 2004), available at NORMATTIVA (in Italian) (consolidated text updated with provisions effective Mar. 31, 2016).)

Innovations in the Updated Code  

The updated Code contains a number of new provisions to enhance protection of and promote the Italian cultural heritage. Some of the most important innovations are:

  • Revised Definition of Cultural Property

The Code excludes from the definition of cultural property the works of a living author whose creations do not go back more than 50 years and creations that are less than 70 years old.  (Id. art. 10(5).)

  • Government Authorization and Notification Requirements Revised

The Code adds the “removal or demolition, even if followed by re-construction,” of legally protected cultural property to the types of conduct that require prior governmental authorization.  (Id. art. 21(1).)

The Code provides that the national police assigned to protect the national cultural heritage must be informed of any fortuitous discovery of protected cultural property, whether real estate or movable property. (Id. art. 90(1).)  The Code exempts from the need to obtain prior government authorization certain activities performed without a profit motive related to the study, research, or free expression of thought and creative expression aimed at promoting knowledge of the national cultural heritage.  (Id. art. 108(3-bis).)

  • Strengthening of Government Powers vis à vis Cultural Property 

The Code strengthens the supervision mechanisms of the central government to protect cultural property located throughout the country.  (Id. art. 18(2).)  The Code also charges governmental entities, including local authorities, with the obligation to preserve and create inventories of cultural property under their administration.  (Id. art. 30(4).)  In addition, it recognizes and strengthens cooperative activities between government and academic entities aimed at disseminating  knowledge of the national cultural heritage (id. art. 119) and creates mechanisms for cooperative activities between public and private entities aimed at protecting the national landscape (id. art. 133).

The Code provides rules applicable to the upkeep of the colors of the facades of culturally protected buildings (id. art. 154).  It also expands the prohibition against placing or affixing signs or other means of publicity on buildings or in areas protected as cultural property.  (Id. art. 49(1).)

The Code regulates the payment of compensation in cases where the restitution of cultural property must be made (id. art. 79(2)) and eliminates the statute of limitations on legal actions for the recovery of cultural property illegally removed from Italy (id. art. 78(3)).

  • Modernization of Authorization Procedures for Transfers of Cultural Property 

The Code sets forth a procedure for the issuance of a government authorization to transfer legally protected cultural property held in private hands or in the public domain (id. arts. 55(2) & 56(2)), eliminating the requirements of a prior authorization for the transfer of the property to the state and the payment of tax obligations (id. art. 57(1)).  The Code also now contains a detailed procedure for the transfer to private ownership of public real estate subject to legal protection as cultural property.  (Id. art. 57-bis.)

  • Procedures on Landscaping, Real Estate, and Intervenors

The Code regulates the procedure for the issuance of a “Declaration of Remarkable Public Interest” procured to protect real estate and other areas with cultural value throughout the country.  (Id. art. 138.)  It sets forth stringent rules for the approval of landscape planning projects and activities (id. art. 135) and establishes the procedure for the approval of  “Landscape Plans” affecting certain territories with cultural value in the country, a procedure that includes public participation and consultation mechanisms (id. arts. 143 & 144).  It also grants legal recognition to the profession of intervenors in cultural property (i.e., handlers, specialists, experts).  (Id. art. 9-bis.)

  • International Standards and Cooperation

The Code creates cooperation mechanisms for the control of the circulation of Italian cultural property outside the national territory.  (Id. art. 64-bis.)  It adopts the United Nations Educational, Scientific and Cultural Organization (UNESCO) 2003 Convention for the Safeguarding of the Intangible Cultural Heritage into the Italian legal system.  (Id. art. 7-bis; Convention for the Safeguarding of the Intangible Cultural Heritage (Oct. 17, 2003), UNESCO website.)  It also implements European Union legislation on the restitution of cultural property to its state of origin and on cooperative activities with other EU countries concerning cultural property stolen or illegally removed from Italy.  (L.D. No. 42, arts. 75(2) & 76(2-bis).)

  • Protected Cultural Property Held by Private Parties

The Code contains new provisions on the protection of cultural property granted to private parties by concession. (Id. art. 116(1).)  It also includes new seminal measures to allow for the sponsorship by private parties of initiatives to protect the national cultural heritage.  (Id. art. 120(1).)

Highlights of Provisions Already in the Code Prior to the 2016 Changes 

  • General Protection of the Italian Cultural Heritage 

The Code was designed to reinforce the importance of Italy’s cultural heritage to the identity of the Italian people. (Id. art. 1(2).)  Cultural heritage is composed of, among other elements, art, history, archeology, anthropology, archives, bibliographical libraries, museums, picture galleries, and art galleries.  (Id. arts. 2(2) & 10(2)(a).) In order to make preservation of the cultural a government responsibility, the Code created the Ministry for Cultural Assets and Activities (MCAA).  (Id. arts. 3 (1) & 4(1).)   Religious cultural property is to be protected by the relevant religious institution.  (Id. art. 9(1).)

The Code instituted the use of a “Declaration of Cultural Interest” certificate for certain properties, to be issued by the authorities, who also must maintain an online registry of such declarations.  (Id. arts. 10, 11, & 15(2-bis).)  Additionally, the Code enables the regions and other public territorial entities to enter into financial agreements with foundations in order to implement activities that protect the cultural heritage.  (Id. art. 121(1).)

  • Governmental Protection

The Code establishes a procedure for carrying out renovations or changes or other forms of material intervention in protected cultural property, including environmental impact assessments.  (L.D. No. 42, arts. 22 & 26.)  The state and regional and local government entities are under the obligation to adopt measures for the protection and conservation of cultural property throughout the country.  (Id. art. 30.) Under the Code, private owners of legally protected cultural property may be compelled to carry out conservation of such property.  (Id. art. 34.)  In addition, the MCAA may order the transportation of protected cultural property to public institutions that provide custody for movable cultural property and grant them temporary custody rights over such property.  (Id. art. 43.)  Cultural property may also be given in deposit to specific institutions for purposes of better protecting it.  (Id. art. 44.)

  • Regulation of Activities in Protected Cultural Areas

The exercise of commercial activities in areas deemed to have archaeological, historical, artistic, or landscape value is also heavily regulated by the Code. (Id. art. 52.)  The Code forbids the disposition of certain property from certain cultural domains, such as places of archaeological interest, national monuments, museums, galleries, libraries, and archives, among others.  (Id. art. 54(a), (b), (c) & (d).) Furthermore, the Code mandates enforcement authorities to report all banned commercial activity carried out with the use of protected cultural property.  (Id. art. 63(1).)

  • Exportation of Protected Cultural Property from Italy

The Code makes international circulation of protected property subject to stringent requirements and restrictions.  (Id. art. 64-bis.)  The permanent removal of cultural property from Italian territory is generally forbidden (id. arts. 65 & 68), but the temporary exit of cultural property from Italian territory is allowed under strict conditions (id. arts. 66 & 67).  The MCAA maintains a database of all cultural property that has been illegally removed from Italian territory.  (Id. art. 85.)

  • Protection of Landscape Assets

The Code protects landscape assets, defined as territory that is expressive of the Italian identity and whose character derives from both natural and man-made factors. (Id. art. 131(1).)  The Code lists landscape areas that are to receive legal protection as cultural property in Italy.  (Id. art. 142.)

The Code prohibits owners, possessors, or holders of real estate and areas that have a landscape interest from destroying or harming them.  (Id. art. 146(1).)  Such persons must submit a proposal for intervention in the protected asset to the respective authorities and may not commence any work on them before the respective authorization is issued.  (Id. art. 146(2).)  Certain minor interventions, however, do not require government authorization.  (Id. art. 149.)

  • Penalties Associated with Violations of the Code

The Code regulates situations of loss of cultural assets due to lack of traceability or exit from the national territory, in which case the violator must pay an amount to the state equivalent to the value of the respective property. (Id. art. 163.)

The Code imposes administrative penalties for violation of its protective provisions related to the conservation of cultural property, urban construction and cultural property preservation, and other activities. (Id. art. 160.)  The Code also establishes administrative penalties for violation of the provisions on the international circulation of protected cultural assets.  (Id. art. 165.)

Criminal penalties are established by the Code for acts such as the destruction, modification, unauthorized restoration, or performance of works of any type affecting legally protected cultural property.  (Id. art. 169(1)(a).)  These penalties include incarceration for six months to one year and a fine of €775 to €38,734.50 (about US$884-$44,181).  (Id.) The performance of activities on protected cultural property that adversely affects its conservation is subject to this same punishment.  (Id. art. 170(1).)  (Id.) 

Forgery of cultural property and the failure to implement conservation measures ordered by the MCAA are also crimes subject to criminal penalties. (Id. arts. 178 & 172(1), respectively.)  The forgery of cultural property is punishable with incarceration for a term of from three months to four years, and a fine of €103 to €3,099 (about US$117 to $3,535).  (Id.)

The Code penalizes the unauthorized transfer of cultural assets with a term of imprisonment of up to one year and a fine of €1,549.50 to €77,469 (about US$1,767 to $88,361).  (Id. art. 173.)  Criminal penalties are also set for conduct that violates the Code’s provisions on archaeological research and the theft of cultural property belonging to the state.  (Id. arts. 175 & 176.)  Under the Code, collaboration by a convicted party in the recovery of lost or stolen cultural property is a mitigating circumstance in their sentencing.  (Id. art. 177.)

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