SPAIN Trends and Developments Contributed by: Rafael Mateu de Ros and Patricia Fernández Lorenzo, Ramón y Cajal Abogados
Market Overview of the Spanish Art Sector Spain is one of the largest contributors to the EU art market, following France, Germany, and Italy. How - ever, despite being a country with significant artistic production – both historically and in the present day – as well as receiving important art collections and artistic works from Latin American artists (thanks to cultural proximity), the legal framework does not con - tribute to fostering a thriving art market. Notably, auction houses such as Sotheby’s and Chris - tie’s, which have branches in Spain, do not hold auc - tions in Madrid or Barcelona and limit their activities to attracting clients. Meanwhile, prominent international art galleries have opened new locations in Madrid and Barcelona, enriching the artistic offerings alongside the dynamic Spanish galleries. From the perspective of international art fair organi - sation, Spain stands out with the considerable influx of collectors and public visitors to the ARCO Fair – a contemporary art fair held annually in Madrid, attracting nearly 100,000 visitors each year between late February and early March. The fair has regained its attendance numbers after the pandemic-related decline in previous years. Regarding public collecting, there are significant pub - lic museums in Spain whose acquisitions are primarily sourced through the exercise of pre-emptive rights in public auctions or art fairs. Until the early 21st century, the payment of taxes in kind was a supplementary method for national museums such as the Museo del Prado , the Museo Reina Sofía in Madrid, or the MNAC ( Museu Nacional d’Art de Catalunya ) in Barcelona to incorporate significant artworks into their collections. However, this option has ceased to be accepted by the Ministry of Finance, with the exception of muse - ums within the autonomous communities or regions, which – owing to decentralisation – have the authority to accept tax payments through the delivery of cultural heritage artworks. Lastly, the discovery of a substantial volume of art - works seized during the Spanish Civil War (1936–1939) that were never returned to their rightful owners during the Franco regime, has generated a series of claims that have led to some restitutions between 2022 and
2024. This is prompting the implementation of new due diligence protocols and verifications for art deal - ers and auction houses to mitigate risks, especially given that Spain has not experienced a proliferation of restitution claims related to Nazi-looted art (as seen in other European countries), with notable exceptions to be explained. Protective legal framework for Spanish historical heritage The Law of 25 June 1985 on the Protection of Span - ish Historical Heritage (the “Spanish Historical Herit - age Law”) plays a crucial role in regulating the export of cultural goods, as it is highly protective of items classified as part of Spain’s historical heritage. The Ministry of Culture’s Board of Qualification, Valuation and Export decides on the issuance of export permits without predetermined criteria, making such decisions unpredictable. The main concern for art dealers and collectors is that, in the event of a denied permit, the State is not obliged to purchase the item. However, by denying the export permit, the government initiates the pro - cess of declaring the item a cultural asset of interest. This results in a reduced market value, as the item is restricted to the Spanish market. In such cases, and if there is sufficient legal basis, sellers may appeal the denial through administrative or judicial means. Judi - cial practice shows that very few appeals are upheld, as courts predominantly support the decisions made by the Ministry of Culture. These regulations explain why sale prices for Spanish art and antiques are gen - erally lower than in neighbouring countries, with most sales taking place in contemporary and modern art galleries, whereas auctions account for only 20% of the market. Recent disputes in the Spanish art market Disputes related to art sales are governed by the Civil Code and the Law on Civil Proceedings, with specific provisions for transactions between professionals. In transactions with consumers, the Retail Trade Law applies (particularly for auctions), and the principle of good faith governs the interpretation of contracts. A notable case in 2023 involved the acquisition of the painting Crown of Thorns or Ecce Homo (attributed
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