'The Standard Bearer' / 'Le Porte- Étendard' by Rembrandt van Rijn

The heirs of Élie de Rothschild, who died in 2007, intend to dispose of it. For the time being, the French Minister of Culture has refused to issue an export licence.

In selling works of art internationally, being able to export them is pivotal. Buyers and sellers often have different nationalities, living in different countries. If export is impossible, this will hamper the sales opportunities. A licence is often required for the export of a work of art to a country outside the European Union. Such licence is issued by the country in which the work of art has its permanent home. It may be refused based on, for instance, national, artistic or historical reasons. This is different within the European Union, which seeks to guarantee the free movement of goods, such as works of art. But motivated by national, artistic or historical reasons, EU member states can restrict exports. However, such restrictions may not lead to arbitrary discrimination or trade restrictions.

France and the United Kingdom require that licences also be obtained for the export of various categories of works of art to other countries within the European Union. In case of a "trésor national" or "national treasure", the issue of a licence may be refused or suspended. The work's history or its artistic level, or considerations of aesthetics or (art) history are relevant in this respect.

France has suspended its decision on the application for the issue of an export licence for The Standard Bearer. On 9 April 2019, Franck Riester, the French Minister of Culture, took the position that the painting is a trésor national. As a consequence, funds must now be raised to facilitate a possible purchase of The Standard Bearer for the benefit of the French national heritage, meaning that the French arts patronage will have to dip into their purses for a yet undisclosed amount, which must fulfil international market price-practices. If no purchase is made within 30 months, an export licence will have to be issued for The Standard Bearer after all.

In the United Kingdom, the issue of an export licence was similarly suspended in December 2018. Michael Ellis, the British Arts Minister, promulgated an export ban on a work auctioned at Christie's London made by Lucas van Leyden (Leiden, the Netherlands; 1493-1533), an artist world- famous for his drawings. The work was sold by one of the oldest boarding schools in England and is considered a British national treasure by the Minister. A term within which the work may be purchased for the United Kingdom is also applicable here. The Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest recommended a 'fair market price'. In case of no interest to purchase the drawing by Lucas van Leyden against the recommended price, the work can leave the country. As in France, if the price is not acceptable to the owner, he or she will not be required to sell; de downside being, however, that they will not be able to export the work either.

The Netherlands

The Netherlands does not prescribe a licence for the export of a work of art to a country within the European Union. However, as stated, a licence is required for exporting such goods outside the European Union. The Netherlands does apply a designation policy. The Dutch Minister of Education, Culture and Science (Onderwijs, Cultuur en Wetenschap, "OCW") can qualify works of art as "protected cultural property". If a work threatens to disappear to a foreign country but ought to be qualified as protected cultural property, an emergency designation may be issued.

In the event that a work of art has been qualified as protected cultural property in the Netherlands, restrictions will apply in terms of how its private owner can dispose of it. The restrictions are comparable with those applying in France and the United Kingdom. Accordingly, private owners cannot simply sell or export artworks that have been designated as protected cultural property - not even within the EU. (More stringent requirements apply to goods held by government bodies or museums, and to - goods forming part of - public collections, but these will not be addressed in this article)

The Dutch Minister of OCW, or rather the thereto designated inspector, must be notified of any such intention to export. He or she can then express any concerns, after which a procedure is initiated, pursuant to which prospective buyers can make themselves known, in order for the work of art to be preserved for the Netherlands. Absent any candidates, the State of the Netherlands will act as a candidate. Should the parties fail to reach agreement on the price, it will be set by a court. If the State finds the price too high, it can withdraw, and the work of art can then be exported after all. If the owner finds the price too low, he or she can keep the work of art, but exporting it will not be permitted.

The criteria applying in the Netherlands in respect of giving a work of art the status of "protected cultural property" are "irreplaceability" and "indispensability". In other words, the criterion is not whether the work of art is perhaps too beautiful to let it go or whether it would in fact be a big loss if it were not to end up in a Dutch museum.

The Netherlands applies restraint when it comes to its power to designate a work of art as protected cultural property. It looks as if the bar is a bit higher in the Netherlands than it is in France and the United Kingdom in this respect. The Portrait of Jan Six by Rembrandt has been registered as protected cultural property, which was justified as follows:

"The finest sample of Rembrandt's portraiture, which peaked from 1650 to 1655. Rembrandt etched and painted a number of portraits, of which this portrait stands out due to its extraordinary sobriety and stunning technical freedom. The portrait has been in the Six family since its creation. At the time at which it was made, Rembrandt and Jan Six maintained a friendly relationship. On the grounds of his artistic conception and its implementation, Rembrandt (1606-1669) is considered the greatest of Dutch painters."

In other words, this is a painting which, within Rembrandt's oeuvre, is exceptional in and of itself. The "indispensable" and "irreplaceable" criteria result in not many artworks qualifying for a designation as protected cultural property. This is not always recognised.

At the end of 2018, the sale of a drawing by Peter Paul Rubens owned by Princess Christina of the Netherlands caused a commotion. Princess Christina had the drawing auctioned by Sotheby's New York. The Dutch felt that the drawing belonged in a Dutch museum, one of the reasons being that it formed part of the art collection of King William II of the Netherlands. The question arose whether Princess Christina was at all entitled to sell the work at auction in New York. On behalf of the Dutch Government, the - correct - answer was given that the drawing was private property and that this, hence, concerned a private matter on the part of the Princess, as the work, when it was still in the Netherlands, had not been designated as protected cultural property. But even if the drawing had still been in the Netherlands, it is questionable whether it would have qualified for designation as protected cultural property, it not meeting the requirements of indispensability and irreplaceability.

For OCW Minister Van Engelshoven, the restraint applied in implementing the Dutch designation policy constitutes reason to set up a committee which, chaired by Alexander Pechtold, will have to evaluate that policy's implementation. It remains to be seen what the outcome of this evaluation will be. In addition, the Minister has instructed the committee to include in its evaluation the issue of how other countries implement their policies regarding the designation of works of art as protected cultural property.

Conclusion

In buying or selling a work of art, it is important to investigate on time whether an export licence must be obtained and whether any obstacles can be expected. If a work of art is so special that it is granted the status of "protected cultural property", its private owner will be confronted with a purchase preference for the benefit of the country that is the work's permanent home. From the national perspective, such purchase preference is comprehensible, as long as the price is in conformity with the market, taking into account international standards.

Owners of art should quickly have clarity whether they can do business with the country of the work's origin or whether a purchase is not on the cards, so that they can trade with buyers elsewhere. The speed of the process - finding candidates and setting the price, and any discussion or disputes - is a matter of concern. It can be imagined that owners will not always, in their view, receive the top price. But they can opt not to sell. However, the situation that works become "contaminated" and difficult to sell, for instance because the State withdraws after all on account of the amount of the price set, must be prevented.

On a final note

For The Standard Bearer, it remains to be seen whether it marches out of France, perhaps and hopefully towards the Netherlands. The arts patronage in France must already dip into their purses for the restoration of Notre-Dame de Paris. And the question is whether France, following the acquisition of Rembrandt's Maerten and Oopjen, feels like investing once again in a painting by the Netherlands' greatest painter who, apparently, never visited France in his life.