SPAIN Law and Practice Contributed by: Rafael Mateu de Ros, Patricia Fernández Lorenzo, Javier Fernandez-Lasquetty and Luis Rodríguez-Ramos, Ramón y Cajal Abogados
• Description of the artwork – this includes details such as title, artist, dimensions, medium, prov - enance, and any relevant certificates or documen - tation. • Payment terms – these define the purchase price, payment method, and schedule. If escrow accounts or other similar financial instruments are used, specific provisions are included to regulate their operation and conditions for releasing funds. • Authenticity and title guarantees – the seller pro - vides warranties of authenticity for the artwork and guarantees their legitimacy to sell it, ensuring there are no third-party claims or encumbrances on the piece. • IP rights – this clause clarifies whether any IP rights are transferred with the artwork or if the artist retains rights such as reproduction or exhibition rights. • Confidentiality clause – this ensures that confi - dentiality is maintained regarding the transaction terms, the identities of the parties, and any related information. • Delivery and risk transfer – this clause establishes the method and timeline for delivering the artwork and when the risk and responsibility transfer to the buyer. • Dispute resolution and governing law – this clause specifies the applicable law and mechanisms for resolving disputes, such as arbitration or court jurisdiction. These clauses (together with others) help protect both parties and ensure a secure transaction, particularly in high-value art sales. 6.2 Issues in Cross-Border Art Sales Spanish legislation is highly protective of the exporta - tion of cultural goods. There are three types of expor - tation requests – namely, “definitive”, “temporary with an option for sale”, and “temporary”. The law estab - lishes two systems based on the destination of defini - tive exports, as follows. • When the exportation is destined for the EU – all goods older than 100 years and of historical or artistic interest must request an export permit, regardless of their economic value. This requires the Ministry of Culture to receive thousands of
exportation requests annually. Goods that have been declared BIC are always unexportable, whereas goods listed in the General Inventory of Movable Assets also require an export permit (even if they are less than 100 years old). • When the exportation is destined for outside the EU – Regulation (EC) 116/2009 of the Council of 18 December 2008, concerning the exportation of cultural goods, applies. It establishes that export permits are required for goods between 50 and 100 years old, provided their value exceeds the follow - ing amounts: (a) paintings – EUR150,000; (b) sculptures – EUR50,000; (c) watercolours and pastels – EUR30,000; and (d) drawings, prints, and photographs – EUR15,000. Goods between 50 and 100 years old that fall below these amounts must request an export permit, but they will be provided with a certificate from the Min - istry of Culture certifying to customs authorities that the item does not require an export licence. In the case of granting a definitive export permit to a country outside the EU or a temporary permit with an option for sale if the sale occurs, a fee is applied, with the tariff gradually increasing based on the declared value of the good. This fee ranges from 5% to 30% for values exceeding EUR600,000. It is a very burden - some fee and widely contested by the art market and collectors, as no other country in the European region has a fee of this nature. When the Ministry of Culture denies the exportation, the public administration reserves the right of prefer - ential acquisition at the price declared in the export request, which it may exercise within six months from the denial of the permit. However, neither the Ministry of Culture nor the autonomous community has the obligation to acquire the item whose exportation has been denied, nor do they have the obligation to com - pensate or indemnify the owner. This implies that the sale price in the Spanish market drops significantly due to the inability to export or sell the item outside of Spain.
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