SPAIN Trends and Developments Contributed by: Rafael Mateu de Ros and Patricia Fernández Lorenzo, Ramón y Cajal Abogados
to Michelangelo Merisi da Caravaggio), which was declared unexportable and classified as an asset of cultural interest ( bien de interés cultural , or BIC) by the Ministry of Culture and the Regional Government of Madrid. The painting was to be sold at auction for EUR1,500 but it was withdrawn from the auction. After restoration and research, the painting was indubita - bly attributed to Caravaggio, making it one of the last sleepers (lost works) of the artist discovered world - wide. Acquired by a private collection, the painting can only be exported with a temporary permit. In 2024, significant legal matters included the restitu - tion of the Portrait of the Marquise de Llano (attributed to Rafael Mengs) to the family of Ramón de la Sota. The painting had been seized during the Spanish Civil War and had been stored in Burgos Town Hall since 1938 – before which, its origins were unknown. This restitution adds to other restitution cases from 2022, including a portrait of a gentleman by Van der Voort and another portrait of a lady by Spanish painter Luis de la Cruz. In 2024, the National Library of Spain also had to return a 19th-century portrait to the Francisco Giner de los Ríos Foundation, an educational institu - tion persecuted and looted during the Spanish Civil War. Art transactions: sales and auctions Sales of art – whether private or at auction – are sub - ject to the special regulations governing art sales, including the obligation for accurate descriptions of items and their authenticity. The Ministry of Culture can block the export of art offered at auction if the item is classified as part of Spain’s historical heritage. Auction houses must notify the competent authori - ties of any artwork that is more than 100 years old – regardless of its economic value – within four to six weeks prior to the sale. Special provisions apply to art auctions, such as the requirement to disclose if a work is a forgery or imita - tion. Spain’s legal framework provides two avenues for dealing with forgeries – namely, the Civil Code for transactions between private individuals and the Retail Trade Law for public sales, with specific pro - tections for buyers in certain circumstances. Courts are strict in evaluating errors in contracts, particularly regarding whether the buyer’s consent was influenced
by a forgery. In commercial transactions, the focus is on protecting the seller, with art dealers typically being responsible for ensuring the authenticity of works. Auction houses in Spain do not currently offer advanc - es, loans or guarantees on artwork. The security inter - est commonly taken against art or antiquities is a non-possessory pledge, specifically regulated for art, antiques and collectibles. This pledge involves grant - ing a security interest over movable property while the collateral remains in the debtor’s possession as a deposit. It requires execution through a public deed and registration in the Chattel Registry. Art loans and cross-border transactions Spain adheres to international conventions protecting art loans, including the 2005 United Nations Conven - tion on Jurisdictional Immunities of States. If a col - lector loans an artwork to a public museum in Spain, the collector can request the issuance of an immunity certificate from the Director-General of Fine Arts at the Ministry of Culture. Spain also regulates cross-border art transactions, particularly through the Spanish Historical Heritage Law. The law categorises cultural goods into three levels based on their significance, each with specific export permit requirements. The government holds a pre-emptive right to purchase items classified as cultural heritage, and any unreported sale or unlawful export results in the State claiming ownership of the item. This legal framework aims to protect Spain’s cultural heritage while ensuring that transactions involving art are carefully regulated to prevent unlawful exportation and preserve national treasures. Spain also imposes a tax on the export of cultural goods outside the EU, ranging from 5% to 30% of the item’s value, depend - ing on its worth. This tax is highly unfavourable for art dealers, as there is no comparable tax in other European countries, imposing an additional burden on exports to third countries from Spain. Despite repeated calls from the art market to abolish this tax, it remains in effect as of 2026. Illicit export of artworks from Spain results in severe consequences. The Spanish Historical Heritage Law
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