3.1. Domestic Legislation

A. The Constitution of 1948 establishes the foundation for the protection of the national heritage. Article 9 proclaims that “[t]he Republic … promotes cultural development and … safeguards the … historic and artistic heritage of Italy.” The meaning of this provision can be fully understood if read together with other articles. In this manner, it becomes clear that the protection and promotion of the national cultural patrimony is necessary to contribute to the cultural enrichment and spiritual uplifting of each individual and to “remove all economic and social obstacles that ... prevent full individual development” (Article 3) and the enjoyment of “the inviolable human rights” recognized by the Italian Republic (Article 2). These include the right to freedom of religion (Article 19). In this respect, Article 8 guarantees that all religious denominations other than Catholicism are equally free before the law and have the right to organize themselves according to their own norms, provided they do not conflict with the Italian legal system. In sum, Article 9 requires the Italian State to conserve the national historical and artistic patrimony and to actively encourage the development of culture in all its meanings.

B. The Civil Code of 1942 contains a few key articles that are worthy of examination. Article 822 defines the extent of the state’s demanio (public domain): Subject to designation, all state-owned immovable property of historic, archaeological or artistic interest, as well as the collections of public museums, painting galleries, archives and libraries, belongs to the demanio. Article 823 explains that the state’s demanio is inalienable and cannot be subject to third parties’ rights. Accordingly, the property in the public domain cannot be acquired through commercial transactions, even if in good faith, or through usucapione (acquisitive prescription). Hence state-owned cultural property are extra commercium. Finally, Article 831 explicitly prohibits the use of buildings dedicated to Catholic worship for other purposes.

C. The Cultural Heritage Code is the primary piece of legislation regulating the protection of the national cultural patrimony. It is impossible to deal with all details of the Cultural Heritage Code within the confines of this article. An examination of the key provisions will suffice.

As mentioned, Article 2 of the Cultural Heritage Code provides a broad definition of cultural heritage, whereas Articles 53 and 54 pinpoint the categories of objects forming the inalienable “cultural domain,” thereby reiterating the abovementioned norms of the Civil Code. Articles 10 and 11 contain a (non-exhaustive) list of protected objects. More specifically, Article 10 distinguishes between state-owned (paras. 1 and 2) and non-state-owned (para. 3) cultural objects. This distinction entails different degrees of protection and procedural rules. In this respect, Article 12 establishes a special procedure (verifica) to ascertain whether the objects indicated in Article 10(1)—“belonging to the State, the Regions, the other territorial government bodies, as well as to any other body or public institution and private non-profit legal person, including recognized ecclesiastical bodies”—have an “artistic, historical, archaeological or ethno-anthropological interest.” Instead, Article 10(3) provides that the protection of the objects belonging to private entities—that is, entities other than those indicated in Article 10(1)—depends on the procedure set forth in Article 13 (dichiarazione). According to Article 13, an object may be defined as “cultural” provided that it is “particularly important” or expresses an “exceptional cultural interest.”

Evidently, the statute’s language gives the government much discretion as to which objects it chooses to protect. On the one hand, if the government concludes, following the procedure under Article 12, that an object “belonging to the State” or to “recognized ecclesiastical bodies” does not have a cultural value, it can be removed from the demanio and sold on the market (Article 12(4), (5), and (6)) and even exported. On the other hand, as Article 13 requires a qualified (“particularly important” or “exceptional”) “artistic, historical, archaeological or ethno-anthropological interest,” it is more arduous for non-state-owned objects to fall within the scope of the Cultural Heritage Code.

These norms can be criticized in that they set up procedures that are “constitutive” of a cultural value and not merely “declaratory.” In other words, such norms contradict the idea—expressed, inter alia, in Article 2 of the Cultural Heritage Code—that “artistic, historical, archaeological or ethno-anthropological” qualities are inherent to an object. Accordingly, their existence should not depend on the outcome of an administrative procedure.

The Cultural Heritage Code has been modified several times since 2004. Now various provisions explicitly refer to “recognized ecclesiastical bodies” as a special category of non-state owners. For instance, these “recognized ecclesiastical bodies,” as owners, possessor, or holders of objects forming part of the cultural patrimony of the nation, are called upon to guarantee their conservation (Articles 1 and 10(1)). Furthermore, the Cultural Heritage Code states that the sale of the objects belonging to such bodies must be authorized by the Ministry of Cultural Heritage and Activities, which must verify that the sale does not put at risk the conservation or the public enjoyment of the cultural property concerned (Article 56(4bis)).

3.2. The Bilateral Agreements between the Italian State and the Holy See

The Lateran Pacts were concluded on 11 February 1929 between the Kingdom of Italy and the Holy See.^{Footnote 25} The Lateran Pacts include the Lateran Treaty, the Financial Convention and the Lateran Concordat. Article 2 of the Lateran Treaty establishes that the Italian State recognizes “the sovereignty of the Holy See in the field of international relations as an attribute that pertains to the very nature of the Holy See, in conformity with its traditions and with the demands of its mission in the world.” Moreover, the Preamble and Article 3 of the Treaty affirm that Italy recognizes the full ownership and the sovereign authority and jurisdiction of the Holy See over the Vatican. As a consequence, the Lateran Pacts subjected the inhabitants of the Vatican to the sovereign authority of the Holy See while on the territory of Vatican City.^{Footnote 26} Moreover, Article 4 forbids any intervention in Vatican City on the part of the Italian government or any authority other than that of the Holy See. In particular, St. Peter’s Square is open to the public and is subject to supervision by the Italian police authorities. But should the Holy See consider it necessary to temporarily prohibit the public from free access to the Square, the Italian authorities must withdraw beyond the outer lines of Bernini’s Colonnade and the extension thereof. Likewise, the artistic and historical treasures existing within Vatican City are open to scholars and visitors, but the Holy See is free to regulate their admission. With regard to the regime of the shrines located outside the Vatican area, they shall enjoy the status of extraterritoriality. The Lateran Treaty refers to the patriarchal Basilicas of St. John Lateran, St. Mary Major, and St. Paul, and to the Lateran Palace (Articles 13–16). According to Article 27 of the Lateran Concordat, the basilicas outside Rome (the basilicas of the Santa Casa in Loreto, San Francesco in Assisi, and Sant’Antonio in Padua) have been ceded to the Holy See, but they do not enjoy any extraterritorial status.^{Footnote 27}

Ostensibly, the Lateran Pacts did not dedicate much attention to the issue of holy heritage protection. In this respect, the Agreement on the Modification of the Concordat of 1984 is more pertinent for the present study.^{Footnote 28}

With this agreement, the Italian Republic and the Holy See “reaffirmed that the State and the Catholic Church are each in their own way independent and sovereign” (Article 1). Moreover, the Italian State undertook to collaborate with the Holy See for the protection of the common artistic and religious heritage. Article 12(1) stresses that the “Holy See and the Italian Republic, in their respective roles, shall collaborate for the protection of their historical and artistic heritage,” and that, “[w]ith the aim of harmonizing the application of Italian law with religious requirements, the competent bodies of both Parties shall agree upon appropriate measures to safeguard, utilize and enjoy property of cultural and religious interest belonging to ecclesiastical bodies and institutions.” Moreover, the Holy See committed to “pursue any excavations necessary and the removal of sacred relics ... in accordance with State law and to any rights of third parties” (Article 12(2)). On the same footing, Article 5 provides that “[b]uildings open for worship cannot be requisitioned, occupied, expropriated or demolished save in exceptional circumstances and by prior agreement with the relevant ecclesiastical authorities. Except in emergencies, the police force shall not enter places of worship in the pursuance of their duties without prior notification to the ecclesiastical authorities.”

The 1984 Agreement was followed by three understandings. The first was adopted in 1996 with the objective to define the forms of the collaboration between Italy and the Holy See and to identify the competent authorities for each side.^{Footnote 29} The parties also established a Central Office for Ecclesiastical Cultural Heritage of Religious Interest (Central Office) in order to ensure continuity to the bilateral cooperation, to examine issues of common interest and to propose guidelines for the best development of cooperation. The second understanding was signed in 2000 and concerned archives and libraries.^{Footnote 30} The third understanding was adopted in 2005 in order to take account of, inter alia, the enactment of the Cultural Heritage Code.^{Footnote 31}

The latter accord is important because, on the one hand, it reiterated the norms of the 1996 understanding on the role of the Central Office and on the periodic meetings of the representatives of the Italian Ministry and of the Episcopal Conference, as the best manner to define proposals and action programs. On the other hand, the 2005 Understanding introduced significant novelties. First, Article 2(3) underlines the importance of the inventorying and cataloguing of cultural objects as the basis for their correct understanding and preservation. In this respect, it is worth mentioning the document titled “The Inventory and Catalogue of the Cultural Heritage of the Church,”^{Footnote 32} which was issued in 1999 by the Pontifical Commission for the Cultural Heritage of the Church.^{Footnote 33} After a description of the interest shown by the Church for its cultural patrimony, the document offered to bishops, church bodies, and institutions located in Italy and abroad a general orientation for inventory procedures of their art-historical patrimony, which should be progressively integrated within a cataloguing system, on the basis of their specific ecclesial needs, political situation, economic resources and personnel available. Second, Article 2(4) of the 2005 Understanding affirms that, without prejudice to the Italian norms in force, the cultural objects of religious interest belonging to ecclesiastical bodies and institutions should be preserved in situ. The removal and transfer of an artwork to a more secure environment can only be decided jointly by the parties, namely, the Italian Ministry and of the Episcopal Conference. The same collaboration is envisaged with regard to materials that must be removed from their original location when such spaces have lost their religious function because they have been destroyed or have been turned over permanently to profane use by decree of the competent ecclesiastical authorities. The logic behind the removal is simple: Objects of religious interest should not be deprived of their function. The third novelty concerns maintenance activities (Article 2(5)) and archaeological excavations and researches to be carried out in buildings open to worship (Article 6), and the issue of the access to such spaces (Articles 2(7) and 6(3)). Besides calling for the respect of existing legislation, these provisions establish that the agreement of the parties is essential in order to strike a balance between the needs of worship with the necessity to carry out such activities. Last, there is the issue of security. Article 2(6) of the Understanding affirms that the Ministry and the Episcopal Conference shall provide adequate measures for to enhance the protection of buildings dedicated to worship and the property threatened by theft, degradation and abandonment.^{Footnote 34}

3.3. International Conventions and European Union Instruments

Various international organizations are at the forefront in the fight against theft and the smuggling of cultural objects. These certainly include INTERPOL, UNESCO, and the EU. UNESCO has come to play a leading role also in the specific area of the protection of holy heritage. Besides conventions, whose content is summarized below, it is worth noting that UNESCO convened an international seminar in Kiev in 2010 on the role of religious communities in the management of properties inscribed in the WHC List.^{Footnote 35} This seminar provided the first opportunity for discussing at the international level the development of a new comprehensive approach to the protection of holy heritage^{Footnote 36} and for advancing a new understanding of holy heritage: It encompasses not only sites of religious and cultural importance but also any resource enhancing intercultural dialogue and understanding between all communities.

A. The UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 (the 1954 UNESCO Convention) provides that, in the event of armed conflict, the States Parties must respect the cultural property located in their own territory as well as in other states; refrain from any use of the property and its immediate surroundings for military purposes; and refrain from directing any act of hostility against such property (Article 4(1)). States Parties further undertake to prohibit; prevent; and, if necessary, put a stop to any form of theft, pillage, or misappropriation of cultural property (Article 4(3)). Moreover, the occupying force is obliged to aid the occupied state in the preservation of its patrimony (Article 5). The 1954 UNESCO Convention also encourages the marking of immovable cultural property with a distinctive emblem (Articles 6 and 16). Article 8 of the 1954 UNESCO Convention provides that, subject to certain conditions, “… a limited number of refuges intended to shelter movable cultural property in the event of armed conflict, of centres containing monuments and other immovable cultural property of great importance” may be placed under “special protection” by way of their inscription on the “International Register of Cultural Property under Special Protection.” The whole of Vatican City State was granted special protection as a center containing monuments with the registration of 18 January 1960.^{Footnote 37} Detailed provisions on the removal and return of cultural property are set forth in the First Protocol. Pursuant to Article I, occupying powers must prevent and avoid any exportation of cultural objects from occupied territories and, in the event that such exportation would occur, to provide restitution.

B. The 1970 UNESCO Convention operates mainly by imposing obligations on States Parties. They are requested to set up specific services for the protection of cultural property (Article 5); introduce a certification system (Article 6); impose penalties (Article 8); and control trade in cultural objects (Article 10(a)). There is also a provision whereby the States Parties undertake, consistent with municipal laws, “to admit actions for recovery of lost or stolen items … brought by or on behalf of the rightful owners” and “to facilitate recovery” of objects declared “inalienable” by the state of origin (Article 13(c) and (d)). Under Article 7(a) States Parties undertake to adopt measures to discourage state-controlled museums and similar public institutions from acquiring cultural property illegally exported after the 1970 Convention has entered into force. Article 7(b) circumscribes the duty of return to cultural objects stolen from a limited range of sources, that is, “from a museum or a religious or secular public monument or similar institution” and “provided that such property is documented as appertaining to the inventory of that institution.” Accordingly, the 1970 Convention does not cover the objects removed from private individuals and, notably, the non-inventoried devotional objects and ornaments kept in Christian churches and chapels.

C. The 1972 WHC presents a well-developed machinery that includes a list of specifically designated cultural and natural properties having “outstanding universal value” (Article 11). The WHC List is constantly updated by the WHC Committee. This committee scrutinizes whether the site(s) nominated by States Parties can be inscribed or not, examines reports on the state of conservation of inscribed properties, and may ask States Parties to take action when properties are not being properly managed. Therefore, the territorial state is responsible for any WHC site within its borders and has a series of obligations to preserve and protect the site. Alongside these obligations there are important mechanisms of financial aid for the territorial state. A cursory perusal of the WHC List reveals that many properties have been inscribed therein for their religious or spiritual connection. Among them, numerous historic cities and places possess components of religious significance and are recognized as holy by different communities. These include Jerusalem, the holy city for Judaism, Christianity, and Islam, which was inscribed in the WHC List in 1981, and Vatican City, which was inscribed in 1984.^{Footnote 38}

D. The overall goal of the 1995 UNIDROIT Convention on Stolen or Illegally Exported of Cultural Objects (UNIDROIT Convention)^{Footnote 39} is to contribute to the fight against the illicit traffic in cultural objects by addressing the problems resulting from the differing national rules and the weaknesses of the 1970 UNESCO Convention. Specifically, the 1970 UNESCO Convention admits no private action, provides a restitution procedure that is highly ineffectual, makes no reference to limitation periods, and does not deal with the issue of bona fide purchasers. The UNIDROIT Convention applies to claims of international character and deals with both theft and illicit exportation. Unlike the 1970 UNESCO Convention, the UNIDROIT Convention applies to all objects, as there is no requirement that a wrongfully removed object be inventoried or designated by the country of origin. As far as theft is concerned, the UNIDROIT Convention contains an outright obligation of restitution, even if stolen cultural objects are recovered in those systems of law that protect the good faith possessor (Article 3(1)). Any claim for restitution must be made within specific time limits (Articles 3(3) and (4)). Upon restitution of the claimed artifact, the UNIDROIT Convention entitles the bona fide purchaser to a “fair and reasonable compensation” if it is proved that he or she “exercised due diligence when acquiring the object” (Articles 4). As for illegal exportation, the UNIDROIT Convention dictates the return of cultural property through the enforcement of the export prohibitions of the country of origin, regardless of what the law of the state of location provides. This provision is particularly important because of the default rule against the enforcement of foreign export controls: Although art-rich countries can legitimately enact export control laws, they cannot create an international obligation for other states to recognize and enforce those measures. A time limitation on claims also applies (Article 5(5)). As in the case of the restitution of stolen objects, there is a provision on compensation, subject to the circumstances of the case (Article 6).

E. Finally, it is necessary to look at the EU and the special rules concerning the enforcement of the export controls for art objects of its individual Member States: Regulation 116/2009 on the Export of Cultural Goods (which has replaced and repealed Regulation 3911/92 on the Export of Cultural Goods of 1992), and Directive 2014/60 on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State (which has replaced and repealed Directive 93/7 on the Return of Cultural Objects Illegally Exported from the Territory of a Member State of 1993). As the establishment of the Internal Market on 1 January 1993 required the abolition of the internal frontiers, which would have undermined the power of Member States to prevent the illicit movement of cultural objects through the application of border controls, these measures were designed to work together to foster Member States’ reciprocal recognition of domestic provisions designed to fight the illicit trade in antiquities.

Regulation 116/2009 aims to prevent the exportation outside of the EU of works of art that have been unlawfully removed from the country of origin. It sets up a procedure according to which the objects defined as national treasures and belonging to one of the categories listed in the Annex can be exported to third countries only if accompanied by an export certificate issued by the Member State of origin. Directive 2014/60 addresses the movement of cultural objects between and among EU Member States. It affirms the duty to return all art objects identified as “national treasures possessing artistic, historic or archaeological value under national legislation or administrative procedures” (Article 2(1)) that have been unlawfully removed from the territory of a Member State, and grants the right to a Member State to initiate proceedings against the possessor or the holder before the competent court in another Member State. Therefore, the courts of each Member State must enforce the export control laws of other Member States.

To conclude, it is worth noting that the scope of application of Directive 2014/60 is broader than that of its predecessor. In effect, Directive 93/7 assisted Member States in securing the return of cultural objects classed as “national treasures possessing artistic, historic or archaeological value” under national law, provided that they met one of the following conditions: (i) they fell within one of the categories listed in the Annex to the Directive; or (ii) they formed an integral part of public collections recorded in the inventories of museums, archives, or libraries or those of ecclesiastical institutions. As hinted above, these two conditions do not appear in the text of Directive 2014/60. This is potentially a concern for collectors and art trade professionals. On the other hand, this means that objects that have not been inventoried or documented—this is the case of many ecclesiastical items, as it shall be demonstrated in the next section—fall within the protective regime provided for by this regional instrument.

4.1. “Arbitrary Actions” and Lack of Inventories

Many contemporary examples illustrate that clerics at times disregard Italian legislation. This often occurs because of the misguided (or, depending on whom one asks, dishonest) belief that existing legislation does not apply to objects used for religious purposes or housed in religious buildings. For instance, in 2009 a priest in Florence was indicted together with an antiques dealer for the alleged sale, without the prescribed authorization, of various objects including relics of saints.^{Footnote 48} Another illustration is provided by the case of a priest in Arezzo who sold two paintings without giving notice to, or receiving, governmental authorization. The dealer who purchased the paintings later resold them to a third party. After criminal charges were brought against the priest and the dealer, the third-party buyer was ordered to return the paintings.^{Footnote 49}

These acts were condemned as “arbitrary actions” by the Pontifical Commission for the Conservation of the Artistic and Historical Patrimony of the Church.^{Footnote 50} This commission, which was established out of the concern for the protection of the “artistic and historic heritage of the Church and of humanity as a whole,”^{Footnote 51} recalled that pastors must have a profound understanding of the value of sacred art and of the need to preserve these resources for “their cultural and pastoral valorization.” It then acknowledged that “the preparation of the clergy for this task ... has been quite weak and incomplete if not entirely absent.” The negative consequences of this lack of sensitivity in the management of cultural objects—thefts, illegal sales, damages provoked by improper and destructive use, incomplete and devastating restorations, and inadequate care—have often been the reason for complaint on the part of ecclesiastical and civil authorities. This Pontifical Commission stressed that because of such “arbitrary actions” and theft, a considerable part of that patrimony is now lost.^{Footnote 52}

Equally significant problems concern the inventory (and subsequent cataloguing) of materials of cultural value. The Pontifical Commission has long recognized that that is the major requisite for the protection of the artworks belonging to the church. Indeed, it represents the preliminary step to all types of activities that involve both church and state authorities, according to their proper field of competence, such as guardianship, protection against theft, conservation, and restoration. The importance of prevention through inventory was emphasized by Domenico Giani at the General Assembly of INTERPOL. He said that it is necessary that local Catholic authorities make a complete inventory of their art. Not only does an inventory represent an important tool for getting lost items back and making the illicit trafficking more difficult, but it also ensures that local Catholic officials are aware of the items they have.^{Footnote 53} In addition, the Carabinieri’s Cultural Heritage Protection Office has published a manual advising parish priests (and the heads of other religious institutions) on how to protect their premises and property. This manual begins with an admonition to make a careful inventory of what is owned. Each object should be measured, accurately described, and photographed.^{Footnote 54}

The inventory of religious art was the object of the document “The Inventory and Catalogue of the Cultural Heritage of the Church”^{Footnote 55} and also of the Circular Letter, “Inventory of the Institutes of Consecrated Life and the Societies of Apostolic Life Cultural Patrimony: Some Pratical [sic.] Orientations.”^{Footnote 56} The latter document acknowledged that various institutes have not been able to take the task in hand because they lack suitable personnel and funds. It then warned that the lack of vigilant attention to the historical and artistic patrimony of the Church on the part of these institutes “is in direct violation of both canonical and civil regulations.” Finally, it provided some practical recommendations pertaining, inter alia, to formation of personnel, technical assistance, funding, and legal sources.

4.2. Problems of Legal Coordination and Codification

Other problems relate to the coordination of the applicable legal sources. These problems seemingly derive from the Italian legislature’s failure to incorporate properly into national laws the standards set forth by international treaties and EU law. In particular, it appears that the domestic implementation of the key treaties was carried out with no (or little) compliance with the procedures established under Italian constitutional law.^{Footnote 57}

To begin with, the 2004 version of the Cultural Heritage Code only mentioned the UNIDROIT Convention. This aspect was widely criticized given that the Cultural Heritage Code was adopted in order to, inter alia, adapt the national legislation to international treaties and guarantee the strict observance of international norms. Accordingly, many scholars described the Cultural Heritage Code as “incomplete” and stressed that the absence of any reference to the 1970 UNESCO Convention was illogical given its importance regarding the problem of illicit trafficking and its complementarity with the UNIDROIT Convention.^{Footnote 58} As said, the Cultural Heritage Code was amended to adhere better to international law. Now it contains a clause on the control of the international circulation of cultural objects (Article 64bis) and another provision on the 1970 UNESCO Convention (Article 87bis). However, the introduction of Article 87bis does not resolve a key problem concerning the 1970 UNESCO Convention, namely, the fact that there exists no provision on its implementation. In effect, this non-self-executing treaty was ratified through the special procedure, and therefore many of its provisions remain inapplicable in the absence of ad hoc legislative measures.^{Footnote 59} Moreover, the Cultural Heritage Code does not mention the treaties ratified by Italy on the protection of cultural heritage in the event of armed conflict (such as the 1954 UNESCO Convention), whereas it contains references to the UNESCO Convention on the Protection of the Underwater Cultural Heritage of 2001, the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage of 2003, and the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 2005.

Another illustration of the problems of coordination and adaptation under consideration concerns Law No. 213/1999 on the implementation of the UNIDROIT Convention. Italy, as the home of UNIDROIT and the host of all the meetings of governmental experts as well as the diplomatic conference, took the lead in the ratification of the UNIDROIT Convention.^{Footnote 60} Nevertheless, Law No. 213/1999 has attracted substantial criticisms because it can hardly be construed to give full effect to the UNIDROIT Convention.^{Footnote 61} This is mainly due to the fact that this treaty was ratified through the ordinary procedure,^{Footnote 62} even if many of its provisions are self-executing. An examination of Article 4 of Law No. 213/1999 demonstrates that it seriously undermines the effectiveness of the UNIDROIT Convention. Article 4(2), which addresses the issue of the indemnity, states that to obtain compensation, the possessor must demonstrate to have acquired the object in “good faith.” This provision reflects the UNIDROIT Convention in that, first, it confirms that a post-theft purchase does not extinguish the ownership title of the dispossessed owner, even if the purchaser was in good faith, and, second, because it places on the possessor the burden of proof. The problem is that the Convention does not use the parameter of good faith, but the different concept of “due diligence.” These two concepts are not interchangeable, because good faith merely entails that the purchaser was not aware that the object was stolen or illicitly exported, whereas due diligence requires that the buyer adopted an affirmative course of action by investigating suspicious circumstances and inquired into the provenance of the object.^{Footnote 63} To further complicate the matter, the Italian Civil Code states that good faith is presumed (Article 1147(3)) and that a purchaser of movables acquires a good title notwithstanding any defect in the seller’s title or in that of prior transferors, provided that (i) the transaction is carried out in a manner which is appropriate, as regards the documentation effecting or evidencing the sale, to a transaction of the type in question; and (ii) the purchaser is not aware of any unlawful origin of the goods at the time when he or she acquires them (Article 1153).^{Footnote 64} In practical terms, this means that under Law No. 213/1999, compensation can be awarded to every possessor of stolen or illicitly exported cultural objects. Clearly, this adversely affects the UNIDROIT Convention’s goal to thwart the illicit trafficking.

Article 4 of Law No. 213/1999 contains another procedural variation compared to the 1995 UNIDROIT Convention as it does not distinguish the cases of theft and illicit exportation with regard to the payment of compensation. Another specific contradiction is that Law No. 213/1999 does not contain any norm to implement the non-self-executive provisions of the UNIDROIT Convention, such as Article 6.^{Footnote 65} Article 7 of Law No. 213/1999 poses further problems. It states that Italy will apply Directive 93/7^{Footnote 66} to its relations with other EU Member States to the exclusion of the UNIDROIT Convention. This provision aims to comply with the “disconnection clause” contained in Article 13(3) of the UNIDROIT Convention, which reads: “[i]n their relations with each other, Contracting States which are Members of organizations of economic integration or regional bodies may declare that they will apply the internal rules of these organizations or bodies and will not therefore apply as between these States the provisions of this Convention the scope of application of which coincides with that of those rules” (emphasis added). This means that EU Member States can become signatories to the UNIDROIT Convention even though EU law will govern their relations. However, Article 13(3) demands that the scope of application of the rules in competition is coincident. This key aspect is not reflected by Article 7 of Law No. 213/1999. In fact, it does not reproduce textually Article 13(3), thereby excluding the application of the UNIDROIT Convention, even though Directive 93/7 has a narrower scope of application. In effect, the Directive (i) does not apply to situations where the definitions of “unlawfully removal” and “national treasure” are not met; (ii) contains a definition of cultural property that is based upon financial value, a concept not present in the UNIDROIT Convention; (iii) denies standing to private individuals; and (iv) provides for shorter limitation periods.^{Footnote 67} Hopefully, this incongruity will be corrected by the Italian Parliament with the norms required to transpose the new Directive 2014/60 into national laws.

With respect to EU law, Article 74 of the Cultural Heritage Code is ambiguous in that it establishes that the “exportation outside European Union territory of the property indicated in Annex A [of the Code] is governed by … Regulation [116/2009] and the present article.” However, EU regulations are directly applicable, i.e., they are binding in their entirety in all Member States and, in principle, require no measure to incorporate them in national law. Therefore, Article 74 hides the fact that the Cultural Heritage Code can regulate the matter of the exportation of cultural goods only to the extent permitted by Regulation 116/2009, that is, only with respect to its non-self-executing norms. In addition, Annex A of the Cultural Heritage Code, which should serve to identify the objects that are subject to the norms on the exportation and restitution, is not identical to the Annex provided for by Regulation 116/2009. In effect, the penultimate paragraph of the Annex to the Regulation has been omitted. This states that the “assessment of whether or not the conditions relating to financial value are fulfilled must be made when an application for an export license is submitted” and that such a financial value must be determined on the basis of the market of “the Member State referred to in Article 2(2) of the Regulation,” which is the state of origin of an illicitly exported cultural object. Arguably, this omission signals that the Italian legislature was not satisfied with the restitution mechanism set up by the regulation. As a result, the Cultural Heritage Code provides that the financial value of the objects for which an application for an export license is submitted is determined on the basis of the Italian market, and not the state of origin.^{Footnote 68}