SPAIN Law and Practice Contributed by: Rafael Mateu de Ros, Patricia Fernández Lorenzo, Javier Fernandez-Lasquetty and Luis Rodríguez-Ramos, Ramón y Cajal Abogados
In the case of illegal exportation (ie, if the permit has not been requested or obtained), the Law on the Sup - pression of Smuggling establishes sanctions – both administrative and criminal – for individuals involved in smuggling activities with cultural heritage. It includes penalties such as fines, prison sentences, and con - fiscation of goods for individuals caught engaging in smuggling activities. Finally, it should be noted that there is a regime for protected imports that applies when a cultural prop - erty older than 30 years is legally imported into Spain, through its customs declaration and the submission of a specific request within three months of its entry into Spain. The Ministry of Culture offers such goods a regime under which the item cannot be declared BIC nor have a definitive export permit denied for a period of ten years, renewable for equal periods of duration, provided that the request is made within the established time limits and in the manner regulated. This allows collectors to bring goods acquired outside Spain into the country in order to benefit from this favourable regime. 6.3 Gallery and Auction House Liability for Fake Art Under Spanish law, gallery owners and auction hous - es may face several liabilities when selling inauthentic or plagiarised artworks, primarily under the following. • The Spanish Retail Trade Law – as per this legal body, auction sale offers must provide a truthful description of items, clearly stating whether their qualities are verified or merely assumed (or attest - ed by an expert). In specialised art or valuable object auctions, any imitations or items that appear valuable but are not must be explicitly disclosed. Items offered with an artist’s name or signature are considered original unless clear warnings are provided. Moreover, if the items do not conform to their description or have hidden defects (eg, inau - thentic or plagiarised artworks), the auction house is jointly liable with the owner for failing to meet its disclosure obligations. • The Spanish Consumer Protection Law – if the buyer is considered a consumer, they may claim their rights under this law, which protects against deceptive or fraudulent sales practices.
• Contractual liability – if the sale contract includes a warranty of authenticity, the gallery or auction house may be held contractually liable for breach - ing this obligation. Buyers could sue for rescission of the agreement and damages. • Criminal liability – if a seller knowingly sells a forged artwork as an authentic piece, they may be committing (among other things) fraud under Article 248 of the Spanish Penal Code. • Copyright infringement – if an artwork is plagia - rised, the original artist or rights-holders may take legal action for copyright infringement, potentially leading to financial penalties and the withdrawal of the artwork from the market. 6.4 Pre-Sale Checks for Auction Houses and Galleries Before offering artistic goods for sale, auction houses and galleries in Spain must carry out thorough due dil - igence, including verifying the artwork’s provenance, ensuring compliance with export laws and cultural heritage protection regulations, confirming that it is not stolen or illegally trafficked, checking for BIC or inventoried status, and ensuring tax and documenta - tion compliance, as follows. • They must ensure that the artwork has a clear and verifiable provenance to confirm that it has not been illegally removed from its country of origin or is not subject to restitution claims, especially claims related to the confiscations from the Span - ish Civil War. • They need to verify that the person offering the artwork for sale has legal ownership and the right to sell it and that there are no legal disputes over ownership. • They must ensure compliance with export regula - tions by verifying that an export licence has been granted or that the item is exempt from such a requirement. They must specifically check for BIC status – goods declared as BIC cannot be export - ed – and they must also check for registration in the General Inventory of Movable Assets to ensure that the appropriate permissions are in place for sale or export. • They must consult national and international data - bases of stolen art (including Spain’s own Art Loss
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