Protection of cultural heritage under EU secondary law
In light of the completion of the internal market in 1993 and the abolition of physical checks at the then Community's internal borders, the European institutions decided to ensure that the free movement of goods would not increase art theft and illegal exports of cultural goods by adopting Regulation 3911/92 on the control of the export of cultural goods and Directive 93/7 on the return of cultural objects unlawfully removed from the territory of a member state (Council of the European Economic Community, 1992a, 1993a). The Regulation was adopted on the basis of Article 133 EC (now 207 TFEU) which concerned the Community's common commercial policy, while the legal foundation of Directive 93/7 was Article 100a EC (now Article 114 TFEU) regarding the establishment and functioning of the internal market. Both instruments were intended to be legal measures in support of the single market, primarily aimed at reconciling the operation of the single market with the ability of the member states to protect cultural objects defined as national treasures of artistic, historic or archaeological value, as provided in Article 36 TFEU. The system put in place by the Regulation and the Directive aimed to protect the cultural heritage of the member states, but it was not designed to combat the illegal trafficking of cultural objects as such. The member states preserve the right to define what is a national treasure within their jurisdiction and they can take all the measures necessary to protect them.