EU National Treasures and the Quest for a Definition

As is well known, Article 36 of the Treaty on the Functioning of the European Union balances the role of the internal market with other interests. Among them, the protection of national treasures possessing artistic, historic, or archaeological value may justify prohibitions or restrictions on imports, exports, or goods in transit. These rules are the consequence of the recurring clash of interests between those who ask for a totally free art market and those who argue in favour of controls to avoid the dispersion of national patrimonies. The definition of the term “national treasures” is de facto open to determination by each Member State. Two fundamental points will be critically explored in this work: 1) the EU competence to verify the conformity of domestic rules identifying goods as belonging to their “national treasures” within the framework of Article 36 TFEU; and 2) the feasibility of using EU law for determining a threshold framework definition.