SPAIN Law and Practice Contributed by: Rafael Mateu de Ros, Patricia Fernández Lorenzo, Javier Fernandez-Lasquetty and Luis Rodríguez-Ramos, Ramón y Cajal Abogados
Register) to ensure that the piece is not stolen or illegally exported. • They must verify the authenticity of the artwork through expert assessments, certificates of authenticity, or provenance records. They bear legal responsibility in cases where they mediate in the sale of a non-authentic artwork, which could be annulled depending on the conditions, provided the legally established statute of limitations has not expired. 6.5 Role and Responsibilities of an Art Adviser Under Spanish law, there is no specific legal respon - sibility for art advisers beyond their civil contractual liability for the tasks they are hired to perform. Their duties and potential liabilities depend on the contrac - tual agreement with the client. Furthermore, the scope of their liability may also be influenced by the profes - sional liability insurance they hold. However, if the adviser acts in bad faith or is involved in fraud, criminal proceedings may be initiated, depending on the circumstances. These situations would open the relevant criminal legal channels to address the wrongdoing. Moreover, in Spain, there is no specific and unique code of ethics for art consultants and advisers at a national level. However, they may be subject to ethi - cal and deontological standards set by professional organisations or chambers of commerce related to the art field – although these codes are not legally binding. These codes can include aspects such as transpar - ency and honesty in art advisory services, confiden - tiality with client information, or avoiding conflicts of interest. 6.6 Anti-Money Laundering Regulations and the Art Market The regulations on the prevention of money laundering and the financing of terrorism – as well as the applica - tion of the protocols required by law – pose a challenge for galleries and auction houses in Spain, which are characterised by the small size of their staff. The law mandates the implementation of due diligence pro - cedures, including KYC and enhanced due diligence for transactions exceeding EUR1,000, despite the fact
that the Fifth AML Directive 2018/843 sets controls for individual transactions starting at EUR10,000. This results in an increase in costs due to the size of their operations.
7. Collections 7.1 Legal Status of Collections
The Cultural Heritage Protection Law regulates the protection of documentary heritage, as well as archives and libraries. Regarding documentary heritage, it includes docu - ments older than 100 years that are generated, pre - served, or collected by any other private entities or individuals. It also includes documents older than 40 years that are generated, preserved or collected in the course of activities by political, trade union, or religious entities and associations, as well as by pri - vate cultural and educational entities, foundations and associations. Bibliographic heritage includes public libraries and bibliographic collections, but also all literary, histori - cal, scientific, or artistic works of a unitary or serial nature – in manuscript or printed form – for which there are no records of at least three copies in public libraries or services. It is presumed that this number of copies exists for works published from 1958 onwards. The same regime applies to copies produced from edi - tions of cinematographic films, records, photographs, audiovisual materials, or similar items – regardless of their material format – for which there are no records of at least three copies in public services (or one copy, in the case of cinematographic films). The regional laws on historical heritage provide for the declaration of entire collections as BIC. However, in the case of groups or collections of movable property, the resolution must list and individually describe each of the elements or groups of elements that make up the collection. Documentary heritage and artistic, historical or biblio - graphic collections are subject to the same heritage protection regulations, regarding both their exporta -
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