The collector Kathleen Simonis lost the latest stage in a protracted legal battle to export a painting attributed to Giotto, valued around $13m, brought to the UK from Italy more than ten years ago.
All the story began when in 1990, Simonis purchased what was described as copy of Giotto by an “unknown 19th-century artist” for just £3,500 ($6,400) at a Florence auction. Two years later, art expert Filippo Todini published an article proclaiming the work to be an authentic Giotto. However this attribution just later was given more weight, after a deeper technical analysis during restorations, and suddenly the work’s value insanely rose up.
By the way, Italy first had granted an export license in 1999, but later came to realize that this was a work “of exceptional cultural and historical importance.” Meanwhile the export license expired in 2004, but an Italian ministerial decree the same year prevented the painting’s export.
According to the ruling, the painting, titled Madonna and Child, was thus later illegally exported from Italy in 2007, as Simonis did not inform the Italian export office of her plans and instead sent the painting to the UK posthaste. Therefore, the UK now cannot grant a new export license other than to facilitate its return there.
In fact the painting traveled to London in February 2007, days after a ruling from the Tribunale Amministrativo Regionale di Lazio annulled the 2004 decree.
Later in the years, in 2015, Simonis applied to the Arts Council England to permanently export the painting to a free port in Switzerland, which is not in the EU. Her application was refused, and in London’s High Court on 23 July, Justice Carr upheld ACE’s decision not to grant such a licence, supporting its defence that the work was not lawfully dispatched from Italy to the UK in 2007 and therefore that ACE was not the competent licencing authority.
Simonis intends to appeal the ruling, on the basis that Italian laws on the case are incompatible with EU free movement of goods laws, according to her legal representative Daniel McClean, a consultant to Howard Kennedy in London.
Simonis, who is the legal owner of the painting, lives in Italy, although her son, the Old Master dealer Fabrizio Moretti, has galleries in London and Monaco.
Looking deeper into the affair
In point of fact, according to what reported The Art Newspaper a series of export licences and related, often-conflicting decisions have accompanied the Giotto’painting since 1992.
These include a certificate of temporary importation issued by the Rome Export Office in 1999, which meant that the work could come to Italy from the US and then be taken to another EU country during a five-year window. Then, in 2000, a decree issued by Italy’s Ministry of Cultural Property annulled all previous licences on the basis that restoration carried out during the 1990s meant the work “became another work of art”. This decision was appealed by Simonis, and the Lazio Administrative Court (TAR) then annulled the 2000 decree. A subsequent decree was issued by the Ministry in 2004, to the same effect, and again successfully appealed by Simonis, leading to what is referred to in the court papers as the “2007 Order”, when TAR annulled the new Ministerial decree on 9 February 2007.Five days later, Simonis exported the painting to the UK. But around a year later, Italy’s highest administrative court, the Consiglio di Stato, reversed the 2007 order, in support of the 2004 decree.
However, the painting remained in the UK and, come 2015, Simonis applied to ACE for the export licence to Switzerland. The Italian authorities wrote to ACE that the painting “had not been lawfully and definitively sent from Italy”, court papers say. ACE concluded in 2017 that it only had the authority to issue Simonis with an export licence to return the painting to Italy and it was then up to the Italian Ministry to decide whether or not to grant an export licence to Switzerland.
By the way, the High court final decision surely this leaves Simonis in a very undesirable spot, but also all parts involved: on one hand Italy now can’t force her to return the work, because the statute of limitations is up, but they will almost certainly refuse to grant her an export license for what they feel is a national treasure. Just one thing is sure within the art market: “The painting is effectively unsellable,” as wrote Alexander Herman in a blog post for the Institute of Art & Law. “The only potential buyer would have to be UK-based, someone who doesn’t mind the stink of it having been unlawfully exported from Italy.”