The Conservation of Culture at All Costs: Spain’s Cultural Asset Export Laws as Examined Through the Old Masters - Center for Art Law (2024)

July 22, 2024

©Photographic Archive Museo Nacional del Prado.Michelangelo Merisi da Caravaggio, Ecce hom*o. Oil on canvas, 1606–1609. Private collection.

By Chloe Ghaleb

The beating heart of the Spanish polity is a proud and multilayered culture. Modern Spain derives from deep historical traditions that encompass millennia of different empires, religions, and flashpoint events. Its historical traditions are reflected in Spain’s landmarks, religious sites, and artistic legacies, which are integral elements of its national heritage. In recognition of its rich history, Spain’s constitution holds a promise to protect its heritage:

“The public authorities shall guarantee the conservation and promote the enrichment of the historical, cultural and artistic heritage of the peoples of Spain and of the property of which it consists, regardless of its legal status and its ownership. Offences committed against this heritage shall be punished under criminal law.”^[1]

Despite occasionally failing to live up to this solemn oath, Spain regularly enforces its heritage laws with notable implications for the art market, including with the fate of works by the Old Masters.

This Article will examine how Spanish cultural asset export laws can restrict the sale and transfer of art against the wishes of the private market, and in doing so, increase the viewership of works like the Old Masters within Spain. This is illustrated through two striking examples: the first example being the journey of a lost Caravaggio recovered in Madrid, and the other of a Goya repatriated to the Prado Museum. Spain’s legislation presents a strong case for the regulation of artworks deemed significant to cultural heritage, even if it may come to the chagrin of the private market.

“The most relevant assets of the Spanish Historical Heritage must be inventoried or declared of cultural interest.”^[2] Law 16/1985, enacted by Spain in 1985, and later adopted into an official Royal Decree (Royal Decree 111/1986) provides that Spanish heritage, “includes immovable property and movable objects of artistic, historical, paleontological, archeological, ethnographic, scientific or technical interest,”^[3] as determined by the Ministry of Culture with the aid of academic and artistic institutions, or the governing bodies of Spain’s autonomous communities with regards to local and regional property.^[4]

It is important to note that an art piece, or any cultural form, need not have been created by a Spanish artist nor produced in Spain to be validly considered of artistic interest to the heritage of the country.^[5] Once declared of interest, “the export of goods declared to be of cultural interest is prohibited, as well as those other goods which, due to their belonging to the Spanish Historical Heritage, are expressly declared non-exportable by the State Administration,”^[6] unless granted express authorization^[7].

Furthermore, Law 16 dictates that certain assets found to be of relative greater importance to the preservation of Spanish Heritage, labeled as Bienes de Interés Cultural (“BICs”), or Assets of Cultural Interest, are extended an even higher level of protection.^[8] This means the export regulations for BICs are even tighter than with other cultural assets. “A property declared an Asset of Cultural Interest is inseparable from its surroundings. Their displacement or removal cannot be carried out, unless it is essential due to force majeure or social interest.”^[9]

A Recovered Caravaggio

“Damn! This is a Caravaggio! Where did you find it?”

read the reply of art historian Massimo Pullini minutes upon receiving photos of a Madrid-based auction catalog in 2021.^[10] He immediately suspected that one piece, whose guide price was then only listed at €1,500, was in fact a piece by the masterful and iconic Italian artist Michelangelo da Caravaggio.^[11]

The piece’s provenance is first traced to a Spanish Viceroy in Naples circa mid-1600s.^[12] Eventually, the Habsburg King Phillip IV would incorporate the work into the Spanish Royal Collection, showing it at the Real Alcázar and Casa de Campo. Manuel Godoy later passed it onto an institution, which traded the piece with a Spanish politician.^[13] Centuries later, the origins of the artwork had long been forgotten, and the successors of said politician were unaware of the piece’s extraordinary circ*mstances.^[14] They originally attributed it to a member of the circle of the Spanish baroque artist Jose de Ribera.^[15] However, Pullini “instantly knew it was a Caravaggio. It was like meeting someone on the street who you haven’t seen for a long time.”^[16]

Pullini’s suspicions would soon be confirmed. While Pullini’s friends scrambled to return the painting to Italy without drawing suspicion, it was clear that other hopeful buyers had similarly caught on to the piece’s origin when auction bids jumped to €500,000, then €3 million.^[17] Soon thereafter, Spain’s Ministry of Culture was tipped off, and the Madrid Regional Government quickly pulled the piece from auction and imposed an export ban upon the item.^[18]

The Prado Museum would eventually confirm that the piece was indeed a Caravaggio: the lost piece Ecce hom*o (1605–09), depicting Christ before Pontius Pilate as he was condemned to the cross.^[19] Madrid made sure to speedily declare the painting a BIC, cementing its cultural importance and prohibiting the work from ever exiting Spanish territory, likely to the chagrin of Italian art collectors worldwide.^[20]

With these restrictions in place, the painting again went on auction, albeit with a very different guide price the second time around. A British collector based in Spain bought the piece, and submitted it to a mandatory restoration process.^[21] The work is currently nearing the end of its temporary exhibition at the Prado Museum. While the owner generously loaned the museum their new masterpiece,^[22] owners of movable property deemed of cultural interest are, regardless, “obliged to . . . lend them, with the appropriate guarantees, to temporary exhibitions,” for up to four days a month or for five months every two years, under Spanish Law 16/1985.^[23]

This illustrates how Spain’s cultural heritage laws may restrict the movement of art, even the art of a non-Spanish artist, but also lead to the increased viewership for a piece. While Ecce hom*o still moved to another set of private hands, Spain’s legislation ensures the work now has the chance to be viewed by the more than three million people who annually frequent the Prado^[24] during the work’s temporary public exhibition, and in exhibitions to come. Furthermore, Spain’s requirements means the piece’s new owner must also “allow and facilitate their [piece’s] inspection by the competent Bodies, [and] their study by researchers, upon reasoned request by them.”^[25] This represents a stark difference in cultural legislation compared to countries like the United States, which only imposes export restrictions in “few and limited exceptions” as to wildlife or archaeological artifacts from Native American lands.^[26] Spain’s cultural heritage laws regulate not only the movement, but also the upkeep and public display of culturally significant artworks to the overall benefit of the general public.

It is unlikely Ecce hom*o’s new owner would complain about having to submit the work to restorations, studies, and exhibits, though given the unique circ*mstances that allowed them to purchase the piece at a steal. A former Christie’s specialist speculated the work could sell for at least €50 million before identification and restoration had even been completed.^[27] Jorge Coll, who helped lead the restoration of Ecce hom*o, said that had the work been able to leave Spain, it would’ve likely fetched a price around €100 million.^[28] Thanks to Spain’s cultural heritage legislation, though, its new owner instead secured the piece for a “bargain” price of €36 million.^[29] ¡Qué suerte!

A Repatriated Goya

As an inverse of the Caravaggio case, this second example follows the repatriation of a portrait by the legendary Spanish artist Francisco de Goya. La Marquesa de Santa Cruz (1805), which depicted the daughter of the Duke of Osuna with reference to the Greek muse Erato,^[30] was prepared to go on auction at Christie’s for what, at the time, would have been the highest price ever paid for a painting.^[31] While the previous record had been $10.5 million for Andrea Mantegna’s Adoration of the Magi (1500), La Marquesa was expected to sell for $15 million.^[32]
However, the Spanish government caught wind of the auction and intervened, claiming that the painting had been illegally exported from Spain with forged papers.^[33] Barring explicit approval from the Spanish state, a painting by Goya, of extremely high cultural interest to the country, is prohibited from leaving Spanish territory.^[34] That meant that its then-owner, British aristocrat Lord Wimborne, would not be able to reap the rewards of a record-setting auction—or keep La Marquesa at all.^[35] “The movable property belonging to the Spanish Historical Heritage that is exported without the authorization required by Article 5 of this Law belongs to the State. Said property is inalienable and imprescriptible.”^[36] Thus, the Goya piece came to represent the firmness of the Spanish government in enforcing its cultural laws. Even one of the world’s most highly appraised artworks was not exempt from regulations which favor the social value of art over the private benefits it may incur, admirably demonstrating the ethos of Spanish cultural heritage legislation.

Before Spain’s lawsuit seeking the repatriation of the painting made it to trial, both parties agreed to resolve the matter through a $6 million purchase of the piece, funded partly by the Spanish state and also by private parties.^[37] While Lord Wimborne profited greatly relative to his initial purchase of the piece for $160,000, it was still a fraction of what he might have otherwise collected.^[38] Today, La Marquesa lounges across the way from Goya’s Las Majas (1800–07), completing the Prado’s Museum’s impressive collection of Goya’s female portraits.^[39]

Cultural heritage laws are of ever-increasing importance as nations devote themselves to maintaining a collective identity through a persuasive story of their history. General challenges facing the advancement of cultural heritage legislation include the selection of what qualifies as culturally significant, determining the boundaries between public use and private rights, and the interplay of different national heritage laws within an international setting. For example, the Caravaggio piece examined in this Article has a basis in Spanish culture given its history as part of the Spanish Royal Collection and Spanish collectors’ circles. However, Italy may also have a claim to the piece given that Caravaggio is a staple of Italian artistic heritage.

Despite open questions on the nuances of this area of the law, Spain’s strict export laws regulating objects of cultural interest present a strong case for the importance of cultural heritage legislation. Spain’s legislation, and its enforcement, asserts that cultural heritage must remain a domain where the price is not always right and the art market is sometimes forced to make concessions. Whether it be the halting of a record-breaking auction, or a bargain price tag on a rediscovered masterpiece, the priorities of Spain’s Ministry of Culture prove a situation where a state is prepared to fight for the conservation of culture at all costs.

1. M. Bassols Coma, “El patrimonio histórico español: aspectos de su régimen jurídico” Revista de Administración Pública, 1987.
2. Victoria Ateca-Amestoy, “HERIWELL: ‘Cultural Heritage as a Source of Societal Well-being in European Regions’” European Observation Network for Territorial Development and Cohesion (“ESPON”), 2022.

About the Author:

Chloe Ghaleb is currently studying political economy and cinematic arts as an undergraduate student at the University of Southern California. Her deep interest in art law is rooted in the interdisciplinary and complex nature of the domain, as well as her passion for art itself. She is particularly invested in issues of cultural heritage and intellectual property.

Select Sources:

1. C.E., B.O.E. n. 311, Dec. 29, 1978 (Spain). ↑
2. Ley 16/1985, de 25 de junio, del Patrimonio Histórico Español, Boletin Oficial del Estado (1985). ↑
3. Id. ↑
4. Id. ↑
5. Id. ↑
6. Ley 16/1985 art. 5, de 25 de junio, del Patrimonio Histórico Español, Boletin Oficial del Estado (1985). ↑
7. Id. ↑
8. Ley 16/1985, de 25 de junio, del Patrimonio Histórico Español, Boletin Oficial del Estado (1985). ↑
9. Ley 16/1985 art. 18, de 25 de junio, del Patrimonio Histórico Español, Boletin Oficial del Estado (1985). ↑
10. Lorenzo Tondo & Sam Jones, ‘Damn This Is a Caravaggio!’: The Inside Story of an Old Master Found in Spain, THE GUARDIAN (Apr. 23, 2021, 1:00 PM), https://www.theguardian.com/artanddesign/2021/apr/23/damn-this-is-a-caravaggio-the-inside-story-of-an-old-master-found-in-spain. ↑
11. Id. ↑
12. The Museo Nacional del Prado Presents “The Lost Caravaggio” a Masterpiece Ecce hom*o by the Italian Painter, MUSEO NACIONAL DEL PRADO (May 27, 2024) [hereinafter “The Lost Caravaggio”], https://www.museodelprado.es/en/whats-on/new/the-museo-nacional-del-prado-presents-the-lost/2783a85a-3f12-e978-8b90-24126caeb01f. ↑
13. Id. ↑
14. Tondo & Jones, supra note 10. ↑
15. Id. ↑
16. Id. ↑
17. Id. ↑
18. Id. ↑
19. “The Lost Caravaggio”, supra note 12. ↑
20. Sam Jones, Lost Caravaggio That Almost Sold for €1,500 to Go on Show at Prado in Madrid, THE GUARDIAN (May 6, 2024), https://www.theguardian.com/artanddesign/article/2024/may/06/lost-caravaggio-go-on-show-prado-museum-madrid. ↑
21. Id. ↑
22. “The Lost Caravaggio”, supra note 12. ↑
23. Ley 16/1985 art. 13, de 25 de junio, del Patrimonio Histórico Español, Boletin Oficial del Estado (1985). ↑
24. Lee Cheshire & José da Silva, Exclusive: International Museum Attendance Figures Back to Pre-pandemic Levels, ART NEWSPAPER (Mar. 16, 2024), https://www.theartnewspaper.com/2024/03/17/museum-visitor-numbers-recover-from-pandemic-related-falls. ↑
25. Id. ↑
26. Robert A. Darwell, United States: Protection of Cultural Property, INT’L BAR ASS’N (DEC. 2020), https://www.ibanet.org/MediaHandler?id=606a80f9-9d89-4d62-954e-137eeb95964d. ↑
27. Julia Binswanger, Spain’s Prado Museum Will Showcase a Lost Caravaggio That Nearly Sold for Under $2,000, SMITHSONIAN MAG. (May 6, 2024), https://www.smithsonianmag.com/smart-news/spains-prado-museum-will-showcase-a-lost-caravaggio-that-nearly-sold-for-under-2000-180984309/. ↑
28. AGENCIES MADRID, Caravaggio’s ‘Ecce hom*o’ Arrives at the Prado Museum in Madrid, LA VANGUARDIA (2024), https://www.lavanguardia.com/mediterranean/20240527/9680059/painting-ecce-hom*o-caravaggio-prado-museum-madrid-spain.html. ↑
29. British Man Pays 36 Million for Caravaggio Masterpiece in Spain, MURICA TODAY (July 5, 2024), https://murciatoday.com/british_man_pays_36_million_for_caravaggio_masterpiece_in_spain_1000048711-a.html. ↑
30. The Marchioness of Santa Cruz, MUSEO DEL PRADO [hereinafter “The Marchioness of Santa Cruz], https://www.museodelprado.es/en/the-collection/art-work/the-marchioness-of-santa-cruz/e1d2cbc6-8549-4ade-9383-2dde4ee6dfeb (last visited July 18, 2024). ↑
31. SPAIN RECOVERS GOYA ART IN DISPUTE, L.A. TIMES (Apr. 11, 1986, 3:00 PM) [hereinafter “SPAIN RECOVERS GOYA ART”], https://www.latimes.com/archives/la-xpm-1986-04-11-ca-4038-story.html. ↑
32. Id. ↑
33. Id. ↑
34. Ley 16/1985 art. 29, de 25 de junio, del Patrimonio Histórico Español, Boletin Oficial del Estado (1985). ↑
35. SPAIN RECOVERS GOYA ART, supra note 31. ↑
36. Ley 16/1985 art. 29, de 25 de junio, del Patrimonio Histórico Español, Boletin Oficial del Estado (1985). ↑
37. Id. ↑
38. SPAIN RECOVERS GOYA ART, supra note 31. ↑
39. The Marchioness of Santa Cruz, supra note 30. ↑

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. For legal advice, readers should seek an attorney.