JUDGMENT NO. 160

YEAR 2025

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

Composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has issued the following

JUDGMENT

in the constitutional legitimacy proceeding concerning Article 65, paragraph 4-bis, second period, of Legislative Decree No. 42 of January 22, 2004 (Code of Cultural Heritage and Landscape, pursuant to Article 10 of Law No. 137 of July 6, 2002), as added by Article 1, paragraph 175, letter g), number 3), of Law No. 124 of August 4, 2017 (Annual Law for Market and Competition), brought by the Council of State, Sixth Section, in the proceedings between the Ministry of Culture and M. L. srl, with order of January 17, 2025, registered under no. 12 of the register of orders for 2025 and published in the Official Gazette of the Republic no. 7, special first series, of the year 2025.

Having seen the appearance of M. L. srl;

Having heard in the public hearing of September 24, 2025, the Reporting Judge Filippo Patroni Griffi;

Having heard the lawyer Alfonso Celotto for M. L. srl;

Deliberated in the council chamber on September 24, 2025.

Facts Considered

1.− With order of January 17, 2025, registered under no. 12 of the register of orders for 2025, the Council of State, Sixth Section, raised, with reference to Articles 3, paragraph 1, 9, paragraphs 1 and 2, and 97, paragraph 2, of the Constitution, questions of constitutional legitimacy regarding Article 65, paragraph 4-bis, second period, of Legislative Decree No. 42 of January 22, 2004 (Code of Cultural Heritage and Landscape, pursuant to Article 10 of Law No. 137 of July 6, 2002), as added by Article 1, paragraph 175, letter g), number 3), of Law No. 124 of August 4, 2017 (Annual Law for Market and Competition), in the part where it "allows the export office, upon receipt of the self-declaration aimed at transferring [a] work abroad, to initiate the procedure for declaring cultural interest […] only if the self-declaration falls within the hypothesis under Article 10, paragraph 3, letter d-bis) […] and not also in the other hypotheses under Article 10, paragraph 3, of Legislative Decree No. 42 of 2004”.

1.1.− Article 65, paragraph 4-bis, of Legislative Decree No. 42 of 2004 regulates the procedure for the definitive exit from the territory of the Republic of items of "cultural significance” which are excluded (Article 65, paragraph 4) from the requirement of prior authorization for transfer (Article 65, paragraph 3), requiring instead the submission of a sworn declaration to the export office. This simplified export regime applies to works of art by a living author or those executed no more than seventy years ago (Article 65, paragraph 4, letter a, which refers to Article 11, paragraph 1, letter d), as well as items – such as the one at the center of the dispute in the a quo proceedings – which are "work of an author no longer living and whose execution dates back more than seventy years, with a value less than EUR 13,500 […]” (Article 65, paragraph 4, letter b, of Legislative Decree No. 42 of 2004).

In the challenged part, the provision stipulates that "[t]he competent export office, if it deems that the items may fall within those referred to in Article 10, paragraph 3, letter d-bis), shall initiate the procedure [for the declaration of cultural interest], which shall be concluded within sixty days from the date of submission of the declaration.”

In turn, the mentioned Article 10, paragraph 3, letter d-bis), of Legislative Decree No. 42 of 2004 provides that, among others, items of cultural heritage are those – belonging to whomever – which present an exceptional artistic, historical, archaeological, or ethno-anthropological interest for the integrity and completeness of the Nation's cultural heritage, provided that the "Declaration of cultural interest” under Article 13 of the same decree has been issued.

1.2.− The administrative judge is called upon to decide on the appeal lodged by the Ministry of Culture against the judgment of the Regional Administrative Court for Lazio (Second-Fourth Section, December 15, 2023, no. 19029), which had upheld the challenge by the company owning a 16th-century miniature depicting a Madonna and Child ("Madonna dei fusi”): 1) of the act by which the export office initiated the procedure for declaring cultural interest; 2) of the provision of January 4, 2022, by the Regional Secretariat for Liguria of the Ministry of Culture declaring the painting of cultural interest as being of particularly important cultural interest pursuant to Article 10, paragraph 3, letter a), of Legislative Decree No. 42 of 2004; 3) of Article 7, paragraph 3, of the Decree of the Minister for Cultural Heritage and Activities of May 17, 2018, no. 246 (Conditions, modalities, and procedures for the international circulation of cultural heritage), the procedural prescriptions of which were applied by the aforementioned acts.

The work had been purchased at auction for the price of EUR 9,000, and for the purpose of its transfer abroad, the company submitted to the competent territorial export office the declaration provided for by Article 65, paragraph 4-bis, of Legislative Decree No. 42 of 2004, and not the request for prior authorization, as it was exempt under the preceding paragraph 4, letter b), of Article 65, because it was an "work of an author no longer living and whose execution dates back more than seventy years, with a value less than EUR 13,500.”

The appealing Ministry claimed that the first-instance judgment was erroneous in that, by upholding the first ground of appeal, it considered the secondary-rank provision illegitimate insofar as it allows, for the export of cultural heritage items valued at less than EUR 13,500, the adoption of the declaration of cultural interest not only in the case—expressly provided for by the code provision—of Article 10, paragraph 3, letter d-bis), namely of movable items of "exceptional interest,” but also, in addition to the primary norm, "in the other hypotheses of Article 10, paragraph 3,” including that "under letter a), relating to movable items of ‘particularly important interest.’”

1.3.− Regarding relevance, the referring body asserts that it must necessarily apply Article 65, paragraph 4-bis, second period, of Legislative Decree No. 42 of 2004 in its review of the appeal, as it constituted the parameter of legitimacy deemed violated by the Lazio TAR in Article 7, paragraph 3, of Ministerial Decree No. 246 of 2018, which was consequently annulled. A declaration of constitutional illegitimacy would lead to the elimination of the conflict found between the primary norm and the secondary norm, and thus to the rejection—reforming the first-instance judgment—of the request to annul the regulation. This is "without prejudice to the necessity of examining, in the continuation of the proceedings, the further point of grievance of the sole ground of appeal and the grounds reiterated” by the respondent party pursuant to Article 101, paragraph 2, of Annex 1 (Code of Administrative Procedure) to Legislative Decree No. 104 of July 2, 2010 (Implementation of Article 44 of Law No. 69 of June 18, 2009, containing the delegation to the Government for the reorganization of administrative procedure).

1.4.− The referring judge precedes the illustration of the challenges with a regulatory framework outlining the challenged norm and, therefore, the provisions of Article 65 of Legislative Decree No. 42 of 2004 concerning the "Definitive exit” from the Nation’s territory "of items that possess (or may possess) cultural interest.”

In this regard, the Council of State recalls that, according to the letter of the code provision, a distinction must be made among the items that "possess [or may possess] cultural interest”:

− A category of movable items whose definitive exit is always prohibited (Article 65, paragraphs 1 and 2), which includes items for which the declaration of cultural interest has been issued (under the combined provisions of Articles 10, paragraph 3, and 13);

− Items for which this declaration measure has not been issued, but for which transfer abroad is conditional upon obtaining prior authorization (Article 65, paragraph 3). This regime applies, in particular, to "items, belonging to whomever, which present cultural interest, are the work of an author no longer living and whose execution dates back more than seventy years, whose value, with the exception of the items referred to in Annex A, letter B, number 1, is greater than EUR 13,500”; (Article 65, paragraph 4, letter b, of Legislative Decree No. 42 of 2004);

− Furthermore, non-encumbered items which—following the amendments made by the amendment introduced by Law No. 124 of 2017—may be exported under a simplified regime requiring the interested party to submit a "declaration pursuant to the consolidated text under Presidential Decree No. 445 of December 28, 2000, that the items to be transferred abroad fall within the hypotheses for which authorization is not required” (Article 65, paragraph 4-bis). This simplification is provided for, among other things, for "items which present cultural interest, are the work of an author no longer living and whose execution dates back more than seventy years, with a value less than EUR 13,500, with the exception of the items referred to in Annex A, letter B, number 1” (Article 65, paragraph 4, letter b).

The referring body focuses on the "export upon declaration by the interested party” regime, under which the item subject to the main proceedings falls, stressing, first of all, that this is a markedly simplified procedure and not a liberalized sector.

In particular, the administration has powers of control over the declaration made by the interested party regarding the legal status of the item, which consist not only in verifying the truthfulness of what was declared but also, and above all, in assessing the possible cultural interest of the res.

In the context of this second verification, the challenged Article 65, paragraph 4-bis, second period, of Legislative Decree No. 42 of 2004 – with the wording "[t]he competent export office, if it deems that the items may fall within those referred to in Article 10, paragraph 3, letter d-bis), shall initiate the procedure [for the declaration of cultural interest]” – would allow, according to the Council of State, the export office to initiate the procedure for declaring the cultural interest of the item only if it falls within the category of "items” under Article 10, paragraph 3, letter d-bis), of Legislative Decree No. 42 of 2004, and therefore, if it is included among those "belonging to whomever, which present an exceptional artistic, historical, archaeological or ethno-anthropological interest for the integrity and completeness of the Nation's cultural heritage.” Conversely, the export office could not initiate the procedure to impose the cultural encumbrance if the "item” falls within the other types listed in Article 10, paragraph 3, of Legislative Decree No. 42 of 2004.

1.5.− In light of the foregoing regulatory reconstruction, the referring judge assumes that the aforementioned preclusion – within the simplified export regime – to initiating the declaration of cultural interest in the hypotheses provided for by Article 10, paragraph 3, of Legislative Decree No. 42 of 2004, other than those under letter d-bis), conflicts with the invoked constitutional parameters.

In particular, the challenged norm would give rise to an "illogical regime,” producing an unreasonable disparity of treatment, and infringing upon the protection of the Nation’s historical and artistic heritage, provided for by Article 9, paragraph 2, of the Constitution, as well as the principle of good administration, to which Article 97, paragraph 2, of the Constitution subjects the administration.

1.5.1.− Firstly, the limitation on the administration’s power to impose the cultural encumbrance – within the simplified export procedure – to the sole hypothesis under Article 10, paragraph 3, letter d-bis), of Legislative Decree No. 42 of 2004, and not also in the other hypotheses of Article 10, paragraph 3, would result in an unreasonable differentiated regime.

In fact, in the discipline of the Code of Cultural Heritage concerning the declaration of cultural interest and the prohibition of export, there is no distinction between the various categories of items listed in Article 10, paragraph 3, of Legislative Decree No. 42 of 2004: on the one hand, pursuant to Article 13, paragraph 1, the measure imposing the encumbrance may apply to all these hypotheses and, on the other hand, Article 65, paragraph 1, prohibits the export of all items once they are declared cultural heritage. Therefore, these provisions would make an all-inclusive reference to Article 10, paragraph 3, of Legislative Decree No. 42 of 2004 without distinguishing – contrary to the challenged norm – a differentiated regime for movable items under Article 10, paragraph 3, letter d-bis), compared to the other types of cultural heritage items.

1.5.2.− Consequently, the preclusion to declaring cultural interest in the cases under Article 10, paragraph 3, other than that of letter d-bis), within the simplified export procedure, would allow works of art to leave the territory of the Republic to the detriment of the integrity of the historical-artistic heritage.

1.5.3.− Above all, according to the referring judge, the choice to subordinate the same item—one of cultural interest, dating back more than seventy years and valued at less than EUR 13,500—to a different protection regime depending on the factual circumstances of whether or not the simplified procedure for export under Article 65, paragraph 4-bis, of Legislative Decree No. 42 of 2004 has been initiated, would be groundless.

In fact, the same res, outside of that procedure, could be subject to the declaratory encumbrance if it falls into any of the hypotheses listed in Article 10, paragraph 3, of Legislative Decree No. 42 of 2004, while, if the declaration for export has been submitted, it could only be encumbered if qualified as an item under Article 10, paragraph 3, letter d-bis), of Legislative Decree No. 42 of 2004.

Thus, the protection regime for the item would depend on the initiative of the interested party.

Furthermore, in this specific case, the amendment to Law No. 124 of 2017, going beyond its purpose of procedural simplification (explicit in the preparatory works), would become an "instrument of partial liberalization of the sector” to the detriment of the primary constitutional asset of the integrity of cultural heritage.

1.5.4.− Finally, the principle of good administration of the authority—understood by constitutional jurisprudence as a parameter for the legitimacy of discretionary choices made by the legislator in organizing administrative bodies and activities […]—would be violated.

1.6.− To remedy the alleged breach, the Council of State asks this Court to strike down the phrase "letter d-bis” present in Article 65, paragraph 4-bis, second period, of Legislative Decree No. 42 of 2004.

1.7.− The referring judge finally excludes the existence of room for a constitutionally oriented interpretation of the challenged provision.

In fact, the literal wording of Article 65, paragraph 4-bis, second period, of Legislative Decree No. 42 of 2004, which expressly refers only to the hypothesis under Article 10, paragraph 3, letter d-bis), of the same Legislative Decree No. 42 of 2004 and not also to the other hypotheses contemplated by the same paragraph 3, would be insurmountable.

The referring administrative judge is careful to dismiss the possibility of interpreting the provision as expressing a rule solely on competence, which, in "derogation […] of the provision of paragraph 6, second period, of Article 14 (according to which ‘For the items referred to in Article 10, paragraph 3, letter d-bis), the declaration is adopted by the competent central body of the Ministry’),” would assign to the export office the task of "initiating the procedure for declaring cultural interest,” as hypothesized by the Council of State itself in the precautionary phase of the proceedings.

The referring order emphasizes, rather, that this interpretation would conflict, on the one hand, with the letter of Article 65, paragraph 4-bis, second period, of Legislative Decree No. 42 of 2004, since "the initiation of the procedure under Article 14 is strictly linked (‘if it deems that the items may fall within…’) to the existence of the hypothesis of exceptional interest under Article 10, paragraph 3, letter d-bis) and, on the other hand, with the fact that the identification of the ‘export office’ as competent is also accompanied by the provision of a specific procedural deadline (‘sixty days from the date of submission of the declaration’) with an accelerating purpose compared to the general one,” which, rather, sets it at one hundred and twenty days (Article 14, paragraph 5, of Legislative Decree No. 42 of 2004 and Article 1, paragraph 2, read in conjunction with number 1 of Annex 1 to Prime Ministerial Decree No. 231 of November 18, 2010, containing the "Implementing Regulation of Article 2 of Law No. 241 of August 7, 1990, regarding the deadlines for administrative procedures of the Ministry for Cultural Heritage and Activities lasting more than ninety days”).

This different interpretation would, in fact, itself be unreasonable because it would subject "the most delicate among the hypotheses” listed in Article 10, paragraph 3, of Legislative Decree No. 42 of 2004—that under letter d-bis)—to a special regime that compresses the administration's time to act, compared to the general one.

2.− The company owning the item has appeared in the proceedings, requesting, in the first instance, that this Court order a preliminary reference to the Court of Justice of the European Union to ascertain the compatibility with Union law of Article 65 of Legislative Decree No. 42 of 2004 or to return the case files to the Council of State so that it may consider raising the same preliminary question to the CJEU.

In the second instance, the party requested a declaration of inadmissibility and, on the merits, of non-foundation of the raised questions.

2.1.− The party, after illustrating the factual and procedural events of the case, considered the conflict of the national discipline on the circulation of cultural heritage provided for "under Article 65” of Legislative Decree No. 42 of 2004 with the principle of free movement of goods enshrined in Articles 34 and 35 of the Treaty on the Functioning of the European Union, except for the derogations expressly provided for by the subsequent Article 36, as an obstacle to the declaration of unconstitutionality requested by the referring judge.

The defense states in this regard that it has already requested the referring Council of State, and before it the TAR, to make the same preliminary reference, but has not received a response and therefore wishes to reiterate it to this Court.

In particular, the defense brief contests the excessively low threshold set by the Italian legislator at EUR 13,500—about 20 times lower than that set by France and about 10 times lower than that set by Germany—to identify items transferable abroad upon prior authorization from the public administration.

It argues in support of the request: 1) that "cultural heritage items” must be equated to "goods”; 2) that limits to their circulation must be justified by the presence of national interests deemed exceptionally worthy of protection, which in the art market sector would consist of reasons for protecting national cultural heritage; 3) that this "cultural exception,” in order not to evade the rule of free trade by Member States, must be interpreted according to the principles of proportionality, necessity, and non-discrimination; 4) that the limits imposed by Article 65 of Legislative Decree No. 42 of 2004 on the definitive exit of cultural heritage items from Italian territory constitute an unjustified barrier to the free movement of cultural heritage.

Observing, however, that the doubt of EU compatibility concerns a different aspect from the doubt of constitutional legitimacy raised by the referring body to this Court, it requests in the alternative that the case files be returned to the Council of State so that it is the latter who primarily assesses whether to raise a preliminary reference to the Court of Justice of the European Union.

2.2.− Still as a preliminary matter, the company raised the inadmissibility of the constitutional legitimacy questions concerning the violation of Articles 97, paragraph 2, and 9, paragraph 1, of the Constitution, pursuant to which "The Republic promotes the development of culture […]”

The referring order does not offer, in fact, any argument explaining the reasons for the conflict with the invoked constitutional parameters.

2.3.− On the merits, the party argued for the non-foundation of all challenges.

2.3.1.− Firstly, the company contended that the challenged norm does not result in any violation of the principle of good administration, which, conversely, would be compromised—in terms of expenditure of resources—by the provision of burdensome controls even on items lacking real importance for the cultural heritage.

Rather, the reform under Law No. 124 of 2017 properly operated in the sense of lightening the administrative machinery by: on the one hand, bringing about a small liberalization of the circulation of items of artistic value; and, on the other hand, implementing the simplification of the administrative procedures necessary for export, by substituting the interested party’s declaration for the prior authorization of the cultural administration, subject to subsequent verification by the public administration itself with the possible initiation of the procedure for declaring cultural interest if exceptional.

2.3.2.− Secondly, the party resisted the challenge of violation of Article 3, paragraph 1, of the Constitution.

There is, first of all, no violation of the principle of reasonableness.

The legislator, according to a precise discretionary choice and not unreasonably, with the amendments made to Article 65 of Legislative Decree No. 42 of 2004 by the aforementioned 2017 reform, affected the circulation of items valued under EUR 13,500 and, therefore, of small pecuniary value, with an attenuation of the protectionist approach in favor of their economic exploitation as well. The differentiated regime would thus constitute a reasonable balance between the protection of cultural heritage (Article 9 of the Constitution) and the protection of private property (Article 42 of the Constitution).

To reason otherwise, and thus allow the expansion of the cases in which the procedure for imposing the encumbrance can be initiated, through the intervention advocated by the referring body, would lead to the "emptying of content” of the 2017 reform.

Furthermore, a disparity of treatment is not even apparent.

In fact, the law may establish different protection regimes for different categories of items and/or based on different circumstances, as occurs in relation to their age in the discipline for imposing the cultural encumbrance and as would occur, in this case, with the distinction in the circulation regime of artistic items according to the "economic threshold.”

The differentiated regime according to economic value would be justified, considering "the ratio of the challenged provisions, the objectives pursued by the legislator, and the broader regulatory context in which these provisions are situated.”

Conversely, allowing the export office to initiate the declaration of cultural interest in every case would mean unreasonably equating the circulation procedure for items "above the threshold” and "below the threshold.”

2.3.3.− Thirdly, the company assumes the non-foundation of the violation of the interest in the protection of historical and artistic heritage: this would suffer no prejudice, given the recognized faculty for the administration to impose the encumbrance upon confirmation of the exceptional cultural interest of the work.

The preclusion of the declaratory encumbrance in the case of "particularly important” cultural interest—the defense reiterates—would correspond to a precise discretionary choice of Parliament consistent with the Constitution aimed at implementing a "moderate liberalization.”

Conversely, accepting the questions would restore to the administration the same powers reserved for items valued over EUR 13,500, thus invalidating the legislative choice of the 2017 reform.

3.– The President of the Council of Ministers did not intervene in the proceedings.

4.− In view of the public hearing, M. L. srl filed a supplementary brief in which it reiterated and elaborated on its defenses.

The party, supplementing what was stated in the appearance brief: a) asserted that the non-intervention of the President of the Council of Ministers would be justified not by his intention not to oppose the declaration of constitutional illegitimacy of the norm, originating from a considered reform path favoring international simplification, but by the fact that the acceptance of the raised questions would lead to the rejection of the appeal lodged by the Ministry of Culture before the referring Council of State; b) argued that the premise for the discipline of protection of items present in the national territory (Articles 10 and 13 of Legislative Decree No. 42 of 2004) is different from that relating to international circulation, which is based—in its view—on the consideration of such items as "goods.” In this perspective, the legislative choice to restrict the verification of exceptional cultural interest to items of low economic value would be reasonable; c) finally, asserted that the provisions of Article 65, paragraphs 1 to 3, of Legislative Decree No. 42 of 2004 could not be used as a *tertium comparationis* as they derogate from the general principle of free circulation of private property.

Considered in Law

1.− The Council of State, Sixth Section, with the order indicated in the heading (reg. ord. no. 12 of 2025), raises, with reference to Articles 3, paragraph 1, 9, paragraphs 1 and 2, and 97, paragraph 2, of the Constitution, questions of constitutional legitimacy regarding Article 65, paragraph 4-bis, second period, of Legislative Decree No. 42 of 2004, as added by Article 1, paragraph 175, letter g), number 3), of Law No. 124 of 2017, in the part where it would allow the export office, when presented with a declaration for the transfer abroad of a work of art, to initiate the procedure for imposing the cultural encumbrance only if it falls within the typology of "items […] which present an exceptional artistic, historical, archaeological or ethno-anthropological interest for the integrity and completeness of the Nation’s cultural heritage” (Article 10, paragraph 3, letter d-bis) and not also if it falls within the other types of items listed in the same Article 10, paragraph 3.

1.1.− The challenged provision is part of the discipline of the so-called simplified export procedure, laid down by Article 65, paragraphs 4 and 4-bis of Legislative Decree No. 42 of 2004, which permits the transfer abroad of certain categories of "items” of "cultural significance,” based on the submission of a sworn declaration by the interested party, rather than on the prior authorization of the administration (Article 65, paragraph 3; authorization constituted by the "certificate of free circulation” under the subsequent Article 68). Items "exportable upon declaration by the interested party” are works of art by a living author or created less than seventy years ago (Article 65, paragraph 4, letter a, which refers to Article 11, paragraph 1, letter d) and those—like the 17th-century miniature at the center of the dispute in the a quo proceedings—which are "work of an author no longer living and whose execution dates back more than seventy years, with a value less than EUR 13,500” (Article 65, paragraph 4, letter b).

In this regulatory context, the second period of paragraph 4-bis of Article 65 provides that "[t]he competent export office, if it deems that the items may fall within those referred to in Article 10, paragraph 3, letter d-bis), shall initiate the procedure [for the declaration of cultural interest under Articles 13 and 14], which shall be concluded within sixty days from the date of submission of the declaration.”

The referring body infers from this provision a rule limiting the administration’s power to impose the cultural encumbrance (the power to issue the "Declaration of cultural interest,” pursuant to Article 13 of Legislative Decree No. 42 of 2004) in the context of export: only within the scope of the simplified procedure, the item could be encumbered exclusively if it falls within the category provided for by letter d-bis) of Article 10, paragraph 3, of Legislative Decree No. 42 of 2004 ("items […] which present an exceptional artistic, historical, archaeological or ethno-anthropological interest for the integrity and completeness of the Nation’s cultural heritage”) and not also if it falls within the other categories contemplated by the further letters (a, b, c, d, and e) of the same Article 10, paragraph 3. This is despite the fact that Article 13 of Legislative Decree No. 42 of 2004, in generally regulating the power of "Declaration of cultural interest,” makes an all-inclusive reference to all the hypotheses listed in Article 10, paragraph 3, of Legislative Decree No. 42 of 2004.

1.2.− According to this interpretation, the "Madonna dei fusi,” the subject of the dispute in the a quo proceedings, would have been declared a cultural heritage item—following the simplified export procedure—illegitimately, precisely because it was classified as a work of "particularly important artistic interest” under Article 10, paragraph 3, letter a), of Legislative Decree No. 42 of 2004, and thus outside the only case in which the imposition of the encumbrance would be permitted by the second period of Article 65, paragraph 4-bis (as a work with exceptional cultural interest under the terms of Article 10, paragraph 3, letter d-bis).

1.3.− The referring body alleges the conflict of the norm thus derived with the principles of reasonableness, protection of cultural heritage, equal treatment, and good administration, as further specified in the Facts Considered.

2.− The examination of every preliminary and substantive aspect of this proceeding requires defining the thema decidendum.

Although the Council of State generally challenges the second period of Article 65, paragraph 4-bis, of Legislative Decree No. 42 of 2004, a reading of the overall reasoning of the referring order (among many, Judgments No. 36 of 2025, No. 50 of 2024, and No. 164 of 2023) leads to a twofold delimitation of the object of the doubts of constitutional legitimacy.

On the one hand, the grievances are directed at this provision not in relation to all the cases to which it refers (and thus to all the items under letters a and b of paragraph 4), but in relation to the sole hypothesis corresponding to paragraph 4, letter b), namely works by an author no longer living, executed more than seventy years ago and valued at less than EUR 13,500, because the item in dispute in the a quo proceedings falls into this category.

On the other hand, the challenges do not concern the last part of the same second period of Article 65, paragraph 4-bis, of Legislative Decree No. 42 of 2004, which establishes a specific final deadline, set at sixty days, in derogation of the general deadline of one hundred and twenty days provided for the imposition of the cultural encumbrance (Article 1, paragraph 2, of Prime Ministerial Decree No. 231 of 2010 read in conjunction with number 1 of its Annex 1), for the procedure of declaration of cultural interest of exceptional importance under letter d-bis), originating in the simplified export procedure.

3.− Having clarified the above, the request by M. L. srl for a preliminary reference to the Court of Justice of the EU to ascertain the compatibility of the discipline set by Article 65 of Legislative Decree No. 42 of 2004 with Union law, in the part where, by identifying a threshold deemed excessively low (EUR 13,500) to distinguish between art items exportable upon prior authorization from the administration and those exportable "upon declaration by the interested party,” it would entail an unjustified restriction on the circulation regime of cultural heritage items, must first be examined.

The request must be rejected.

The questions of constitutional legitimacy raised by the Council of State do not concern the scope of application of the simplified export regime (Article 65, paragraph 4, of Legislative Decree No. 42 of 2004)—into which the company’s item, valued at EUR 9,000, admittedly falls—but rather concern the limits to the declarability of the cultural interest of a work of art, pursuant to Articles 13 and 14 of Legislative Decree No. 42 of 2004, once the simplified export procedure has been initiated. Therefore, the question to be submitted to the EU judge is not a preliminary matter for the decision on the question of constitutional legitimacy that this Court is called upon to decide (see, among others, Judgments No. 218 of 2021, No. 239 of 2018, and No. 110 of 2015).

Moreover, the party itself admits that the interpretive question of EU law "deals with an aspect different from that identified by the Council of State.”

3.1.− Likewise, the subordinate request to return the case files to the referring body so that it may assess whether to raise the aforementioned preliminary question to the CJEU must be rejected.

Indeed, the Council of State has already implicitly considered the same EU issue, also raised by the party in the a quo proceedings, as irrelevant for its decision.

4.− Still as a preliminary matter, the company owning the item raised the inadmissibility of the questions raised concerning the violation of Articles 9, paragraph 1, and 97, paragraph 2, of the Constitution due to a lack of reasoning on non-manifest unfoundedness.

The exception is well-founded.

The challenges lack any illustration of the reasons why the second period of Article 65, paragraph 4-bis, of Legislative Decree No. 42 of 2004 would conflict with the two invoked constitutional parameters.

In particular, regarding the violation of the principle of good administration, the referring judge recalls the definition of the principle given by some rulings of this Court but does not take care to explain the arguments for which the challenged norm would effectively be detrimental to it.

Regarding the violation of the Republic's duty to promote the development of culture (Article 9, paragraph 1, of the Constitution), there is no exposition of the reasons for its violation, contrary to what the referring order does in relation to the principle of protection of cultural heritage (Article 9, paragraph 2, of the Constitution).

This results in the inadmissibility of these questions (ex plurimis, Judgments No. 88 of 2025, No. 112 of 2024, No. 198 and No. 108 of 2023).

5.− The examination of the merits of the further raised questions (for conflict with Articles 3, paragraph 1, and 9, paragraph 2, of the Constitution) requires a brief reconstruction of the regulatory framework relating to the selection of cultural heritage items "by declaration,” with specific regard to the category of items under Article 10, paragraph 3, letter d-bis), of Legislative Decree No. 42 of 2004, to which the challenged Article 65, paragraph 4-bis, second period, refers.

5.1.− In particular, the analysis of the complex interplay of provisions characterizing the identification of cultural heritage items (by law, Article 3 for "legal presumption, subject to the outcome of any verification of cultural interest procedure” and by declaration measure of cultural interest, as provided for by Articles 2, paragraph 2, 10, 11, 12, and 13 of Legislative Decree No. 42 of 2004) must be limited to those—relevant for the present decision—concerning attraction to the historical-artistic heritage "by declaration” and, among these, those concerning only movable items (the only exportable ones), of artistic interest (so-called works of art) and of an individual type: three distinct regulatory hypotheses are thus relevant, enunciated by Article 10, paragraph 3, of Legislative Decree No. 42 of 2004, in letters a), d), and d-bis).

Firstly, the cultural encumbrance may be imposed on: 1) items that present a "particularly important artistic interest […]” (Article 10, paragraph 3, letter a), and thus on "items with intrinsic cultural interest.” However, the classification as cultural heritage items for this type of item is precluded for items by a living author or "recent” ones (i.e., executed less than seventy years ago) due to the legislative choice to leave the production and marketing of works by living artists or the market for works by deceased artists, but recently executed, whose artistic evaluation is premature, free from limits (Article 10, paragraph 5, first part); 2) items that possess a "particularly important interest” that is not of an "intrinsic type,” but "due to their reference to [cultural] history” or because they are "testimonies of the identity and history of public, collective, or religious institutions” (Article 10, paragraph 3, letter d). These "cultural heritage items by relation or identity testimony” can be attracted to the historical-artistic heritage regardless of the execution date.

Furthermore, as a result of the amendments made to the Code by Article 1, paragraph 175, letter a), number 2), and letter b), of Law No. 124 of 2017, the power to declare cultural interest pursuant to Article 13 of Legislative Decree No. 42 of 2004 was extended to the further typology of items "which present an exceptional artistic, historical, archaeological or ethno-anthropological interest for the integrity and completeness of the Nation’s cultural heritage” (Article 10, paragraph 3, letter d-bis). These are, therefore, items that do not present an intrinsic or "self-evident” cultural interest (due, for example, to recent execution, low value, serial nature, or being by a foreign author), but which possess it in relation to "the whole.”

In this category, termed "complementary items,” attraction to cultural heritage is, in turn, excluded for items by a living author and for those of "contemporary art,” i.e., executed less than fifty years ago (Article 10, paragraph 5, second part).

The delineation of the substantive and procedural aspects of this hypothesis—which the referring body has not focused on—is essential for the correct interpretation of the challenged provision, as it constitutes its primary object.

5.1.1.− The scope of the addition of letter d-bis), in its substantive aspect, is understood in correlation with another aspect of the 2017 reform.

In particular, Article 1, paragraph 175, letter a), number 2), and letter b), of Law No. 124 of 2017 brought about a limited liberalization of a part of the items of "intrinsic cultural interest,” implemented by raising the "age threshold,” from the previous fifty years to the current seventy years (Articles 10, paragraph 3, letter a, and 11, paragraph 1, letter d).

But if, on the one hand, by doing so, Law No. 124 of 2017 intended to exempt "recent” works from the protection regime, and thus limit the power to declare intrinsic cultural interest, on the other hand, and correlatively, it intended to recover the attraction to cultural heritage of some of these items in the extreme case where the "extrinsic” exceptional interest provided for by the concurrently introduced letter d-bis) applies to items executed for at least fifty years (and still without prejudice to the relational interest under the unamended letter d, which is independent of the execution date).

Therefore—as also confirmed by the concerns expressed in the preparatory works for Law No. 124 of 2017—the liberalization in question has been attenuated, and in a sense compensated, precisely by the introduction of the hypothesis under Article 10, paragraph 3, letter d-bis), of Legislative Decree No. 42 of 2004, which allows the imposition of the encumbrance on works of art with "complementary” cultural interest of an exceptional degree, even if executed less than seventy years ago, but more than fifty years ago (Article 10, paragraph 5, second part, of Legislative Decree No. 42 of 2004).

In other words, as also noted by recent administrative jurisprudence (Council of State, Sixth Section, Judgments of December 27, 2023, no. 11204 and August 30, 2023, no. 8074), the inclusion of the hypothesis in question by the amendment serves as a "safeguard rule” for the integrity of the historical-artistic heritage.

5.1.2.− The peculiarity of the category of "complementary cultural heritage items” has also led the legislator to establish special competence to adopt the final measure imposing the encumbrance.

In derogation from the general attribution of the power in question to peripheral offices of the Ministry of Culture—currently identified in the regional committees for cultural heritage (pursuant to the combined provisions of Article 14, paragraph 6, first period, of Legislative Decree No. 42 of 2004 and Article 21, paragraph 3, letter b, of Prime Ministerial Decree No. 57 of March 15, 2024, containing the "Regulation for the organization of the Ministry of Culture, the offices of direct collaboration of the Minister, and the Independent Body for the Evaluation of Performance”)—it is attributed to the "competent central body” of the Ministry (Article 14, paragraph 6, second period, of Legislative Decree No. 42 of 2004), which, according to the current distribution of ministerial functions by the aforementioned organizational regulation, is the Directorate-General for Archaeology, Fine Arts and Landscape (Article 13, paragraph 2, letter v, of Prime Ministerial Decree No. 57 of 2024).

The *ratio* of this elevation of competence is explained by the nature and logic of the assessment required in verifying the "complementary” cultural interest: the ascertainment of the cultural interest attributed to the individual item not intrinsically, but in relation to the heritage as a whole, can only be carried out by the central level cultural administration, the only one possessing the necessary overall vision.

6.− In light of this regulatory framework, the challenges raised regarding the second period of Article 65, paragraph 4-bis, of Legislative Decree No. 42 of 2004, concerning unreasonableness, violation of the principle of protection of cultural heritage, and disparity of treatment, can be examined.

The questions are not well-founded, within the limits and terms that follow.

6.1.− The provision, in the challenged portion, reads: "[t]he competent export office, if it deems that the items may fall within those referred to in Article 10, paragraph 3, letter d-bis), shall initiate the procedure [for the declaration of cultural interest under Articles 13 and 14].”

As noted, the Council of State, in the referring order, deemed it "clear” that the conjunction "if” (*qualora*) was used by the legislator to allow the initiation of the procedure for the declaration of cultural interest "only in the case where” the historical-artistic interest of the "exceptional type for the integrity and completeness of the Nation’s cultural heritage” is found. From this perspective, the textual wording of the provision would establish a substantive rule limiting the *an* of the power to impose the encumbrance. Consequently, in the simplified export context, the administration could adopt the declaratory measure exclusively for items presenting a "cultural interest exceptional for the integrity and completeness of the Nation’s heritage” and not also in the other cases contemplated by Article 10, paragraph 3.

A correct interpretation of the challenged provision, however, does not allow for this conclusion.

6.2.− It must first be considered that, from a literal point of view, the conjunction "if” (*qualora*) can mean "in the case (among others) where,” with the consequence that the regulatory formula would specify, in the hypothesis (among others) where the item falls within the typology referred to in letter d-bis), specific rules on the exercise of the power to encumber. In this different perspective—which was also adopted by the Council of State itself in the precautionary phase of the a quo proceedings—the norm would, therefore, have a procedural value.

And this Court holds that this is the correct interpretation, different from that adopted by the referring judge, to be attributed to the challenged provision, in light of its systematic context and considering its *ratio*, related to the described peculiarities of the hypothesis under Article 10, paragraph 3, letter d-bis), of Legislative Decree No. 42 of 2004, which is its object. This different reading, consistent with the invoked constitutional canons, also allows overcoming the outlined doubts of constitutional legitimacy (among others, Judgments No. 87 of 2025, No. 47 of 2024, No. 101 of 2023, and No. 65 of 2022).

7.− Starting from the systematic data, the meaning of the provision cannot disregard its connection both with the discipline set for export in which it is included (Article 65 of Legislative Decree No. 42 of 2004) and with the discipline of "declaratory” cultural heritage items to which it is connected (Articles 10, paragraphs 3 and 5, 11, paragraphs 1, letter d, and 1-bis, 13, and 14).

This is particularly true considering that these different aspects are interconnected in the systematic structure of the Code of Cultural Heritage and find their culmination, with reference to the specific declaration of "exceptional cultural interest for the integrity and completeness of the Nation’s cultural heritage” (Article 10, paragraph 3, letter d-bis), in the challenged provision.

7.1.− In terms of the legal framework, it should be noted that the discipline for identifying cultural heritage items constitutes the prerequisite for export rules: it follows that the system outlined by Legislative Decree No. 42 of 2004 is intrinsically harmonious and fully compliant with Article 36 TFEU, which allows prohibitions or restrictions on the export of works of art to other Member States of the Union in the name of the "protection of national artistic, historical, or archaeological heritage.”

This systematic coherence is evident with regard to two fundamental aspects of the current discipline: on the one hand, from the mere qualification of the work as a "cultural item” derives the prohibition of its exit from the territory of the Republic (Article 65, paragraph 1), and on the other hand—as already highlighted by this Court (Judgment No. 88 of 2025)—the control over the international circulation of items of "cultural significance” is expressly aimed at "preserving the integrity of cultural heritage in all its components” (Article 64-bis, paragraph 1, of Legislative Decree No. 42 of 2004).

In particular, this control—which falls fully within the functions of protecting cultural heritage—if exercised on works of art intended for export from Italy, whose cultural interest has not yet been verified (Article 12) or declared (Article 13), is an application of the specific protection activity "directed, based on adequate knowledge activity, to identifying the assets constituting cultural heritage” (Article 3, paragraph 1, of Legislative Decree No. 42 of 2004).

And it is precisely the ascertainment of the existence of the cultural interest that the "items may present” that constitutes the condition of "certain belonging to the ‘cultural heritage’” (Judgments No. 45 of 2022 and No. 194 of 2013) for cultural heritage items identified not directly by law (Articles 2, paragraph 2, and 10, paragraph 2), but by a measure of verification or declaration (Articles 12 and 13) following "specific procedures and […] detailed reconnaissance and verification procedures of the characteristics of the items,” entrusted to bodies equipped with highly specialized knowledge (again, Judgment No. 194 of 2013).

Specifically, in the case of the selection of "declaratory” cultural heritage items under Article 13 of Legislative Decree No. 42 of 2004, the Code requires the state administration to carry out the technical-discretionary evaluation of specific substantive elements given by the type of item, its belonging, the degree of cultural interest (Article 10, paragraph 3), and (in some cases) the date of execution (Article 10, paragraph 5, the so-called "age threshold”), without, however, giving any weight to the mere economic value, nor to the factual circumstances relating to the time, and consequently the procedures, in which the "items” are "intercepted” by the cultural administration.

Thus, in the Code’s system, there are no limits other than the power to declare cultural interest depending on whether the movable item is identified on the many and different occasions for exercising the functions of protecting cultural heritage on the national territory or at the time of transfer abroad. All this, without contradiction and in full consistency with the fact that belonging to cultural heritage is linked exclusively to the verification of the substantive characteristics of the items (Articles 10, paragraph 3, and 13 of Legislative Decree No. 42 of 2004).

The challenged provision is not shown to diverge from this coherent systematic context, as it does not express an exceptional provision limiting the power of encumbrance linked to its procedural context, which is dissonant with the system, nor does it offer further indications in this regard.

8.− The analysis of the *ratio* of the introduction of the challenged second period of Article 65, paragraph 4-bis, of Legislative Decree No. 42 of 2004, as an aspect of the simplification of the export of "culturally significant” items operated by Article 1, paragraph 175, letter g), numbers 1 to 3), of Law No. 124 of 2017, supports the same conclusion.

The reason justifying the specific reference to the category of "complementary cultural heritage items” in the context of the discipline of export without authorization is found again in the overall reading of the 2017 reform, in which the legislative intent to limit the power to declare cultural interest is not confirmed, but rather the opposite emerges.

As with liberalization, the fear of a setback in the protection of historical-artistic heritage, due in this case to the reduction of controls on the transfer abroad of works of art, led the legislator to rely on the safety valve constituted by the encumbrance for exceptional interest in the integrity and completeness of the Nation’s cultural heritage (Article 10, paragraph 3, letter d-bis) and to coordinate the different and peculiar procedures.

It should be noted that, as a result of the amendment in particular, the transfer abroad is now permitted on the basis of a declaration by the interested party, subject to control, for two distinct groups of works of art: 1) those that are "recent” (works of art by a living author or executed less than—after the 2017 amendment—seventy years ago under Article 65, paragraph 4, letter a), of Legislative Decree No. 42 of 2004, which refers to Article 11, paragraph 1, letter d), and "tending to be excluded from cultural heritage, save for exceptions” of verification of "extrinsic” cultural interest” (Article 10, paragraph 3, letters d and d-bis), as evidenced in the previous point 5.1.1.); 2) those of "low value,” being less than EUR 13,500, even if "old,” being by a non-living author, executed more than seventy years ago, and therefore ordinarily encumberable under Article 10, paragraph 3, letters a), d), and d-bis) (Article 65, paragraph 4, letter b).

These are evidently heterogeneous categories regarding the encumbrance regime, but they significantly find their point of convergence in potentially becoming cultural heritage items if they present the complementary cultural interest under Article 10, paragraph 3, letter d-bis), provided they are over fifty years old.

9.− Placed within the systematic context and highlighting its *ratio*, it is possible to identify in the wording of the provision three different elements that decisively prove the procedural and not substantive nature of the second period of the new Article 65, paragraph 4-bis, of Legislative Decree No. 42 of 2004.

Firstly, its *sedes materiae*: the challenged wording is located in a paragraph that sets out the procedural rules for the exit from Italy of the categories of items exempt from prior authorization (Article 65, paragraph 4), with reference to a specific ministerial decree regarding "procedures and […] modalities.”

Secondly, the syntactic link with the subsequent norm: the last part of the second period of paragraph 4-bis governs the procedure for imposing the encumbrance (originating from a simplified export case) by setting a specific deadline for its conclusion.

Thirdly, its scope of application: the norm, as just seen, concerns categories of items that, despite being subject to the same export regime—but with procedural differences specified by Ministerial Decree No. 246 of 2018—are not homogeneous among themselves regarding the substantive aspect of possible attraction to "declaratory” cultural heritage items. The heterogeneity of the objective scope of the encumbrance power cannot correspond to a transversal limitation, on a substantive level, of that power.

10.− In conclusion, it must be held that the entire second period of Article 65, paragraph 4-bis, brought back into the system, expresses, within the same provision, two rules on the exercise of the power to declare cultural interest and contains no rule that limits such power.

With the first part of the period, the legislator clarifies and reiterates that, within the scope of the control activity for the exit of culturally significant items from Italian territory, the competence to initiate the encumbrance procedure belongs to the export office not only in the general cases where the power to declare cultural interest belongs to the peripheral body of the Ministry of Culture, to which the export office is territorially "linked” (namely the regional committee for cultural heritage composed, among others, of the superintendent who directs the structure in which the export office is established), but also, in the special case of "complementary items” where the power to issue the measure is assigned to the central body of the same Ministry.

In the second part of the period, the most significant rule is expressed: the halving of the deadline for concluding the procedure for declaring cultural interest compared to that established as a general rule.

The temporal reduction constitutes, in fact, the point of balance in weighing the opposing constitutional assets in the specific hypothesis: on the one hand, the protection of historical-artistic heritage is guaranteed even in the extreme case where the item does not present a "particularly important intrinsic cultural interest,” but only—and to an exceptional degree—in its link with the heritage as a whole; but, on the other hand, the maximum sacrifice imposed on the right to property and freedom of enterprise in the sector, particularly with regard to the circulation of the item, finds a counterbalance in the planned speed of the "exceptional decision” on the encumbrance, also to avoid losing possible opportunities to sell the work to buyers abroad.

Finally, the conjunction between the two rules (that on the initiation of the procedure and that on the time for the measure) also has the function of connecting the different phases of the procedure for declaring cultural interest, requiring the export office to promptly transmit the completed investigation to the Ministry, for the purpose of adopting the declaratory measure within its competence.

11.− The correct meaning of the second period of Article 65, paragraph 4-bis, of Legislative Decree No. 42 of 2004, as pertaining to the procedure and competence, was, moreover, incorporated into the implementing discipline set by Articles 6 and 7 of Ministerial Decree No. 246 of 2018.

12.− The hermeneutic reconstruction of the challenged provision as a norm on the exercise of the power of encumbrance, and not as a norm that limits it, further overcomes any conflict with the invoked parameters (Article 3 of the Constitution in terms of "systemic” reasonableness and equal treatment, and Article 9, paragraph 2, of the Constitution).

12.1.− Firstly, an item like the one in dispute in the a quo proceedings—by a deceased artist, executed more than seventy years ago, and valued at less than EUR 13,500—is always subject to encumbrance in all the different hypotheses contemplated by Article 10, paragraph 3, of Legislative Decree No. 42 of 2004, regardless of the procedural contingency that allowed the cultural administration to "intercept” the item. In particular—without contradiction in the Code’s system—there are no different limits to the power to declare cultural interest depending on whether the movable item is identified in the procedure for transfer abroad or in other occasions for exercising the functions of protecting cultural heritage. This is in perfect consistency with the described legislative choice (Articles 10, paragraph 3, and 13 of Legislative Decree No. 42 of 2004)—repeatedly upheld by this Court (Judgments No. 45 of 2022 and No. 194 of 2013)—to base the declaration of an item as cultural heritage on the verification of the cultural interest it presents and, therefore, exclusively on the evaluation of its substantive characteristics, regardless of the context that constitutes the occasion for such verification.

12.2.− Secondly, the declarability of cultural interest in all cases listed in Article 10, paragraph 3, even within the context of the simplified export regime, prevents the impoverishment of the cultural heritage of its components, by applying the principle of protection of the historical and artistic heritage of the Nation, enshrined in Article 9, paragraph 2, of the Constitution. In fact, once the cultural interest of an item is declared, regardless of whether it is for one or the other hypothesis contemplated by Article 10, paragraph 3, the export prohibition established by Article 65, paragraph 1, of Legislative Decree No. 42 of 2004 becomes operative, also, transversally, for "declaratory” movable cultural heritage items.

12.3.− Thirdly, the merely procedural meaning of the norm excludes the alleged existence of differences in treatment between the hypotheses contemplated by the different letters of Article 10, paragraph 3, of Legislative Decree No. 42 of 2004, in the (substantive) discipline of imposing the cultural encumbrance and the resulting export prohibition.

13.− In conclusion, the challenged provision is amenable to an interpretation, different from that underlying the raised doubts of constitutional legitimacy, oriented toward conformity with the Constitution; hence the non-foundation, in the indicated senses, of the questions raised.

for these reasons

THE CONSTITUTIONAL COURT

1) declares inadmissible the questions of constitutional legitimacy of Article 65, paragraph 4-bis, second period, of Legislative Decree No. 42 of January 22, 2004 (Code of Cultural Heritage and Landscape, pursuant to Article 10 of Law No. 137 of July 6, 2002), as added by Article 1, paragraph 175, letter g), number 3), of Law No. 124 of August 4, 2017 (Annual Law for Market and Competition), raised, with reference to Articles 9, paragraph 1, and 97, paragraph 2, of the Constitution, by the Council of State, Sixth Section, with the order indicated in the heading;

2) declares non-founded, in the senses indicated in the grounds, the questions of constitutional legitimacy of Article 65, paragraph 4-bis, second period, of Legislative Decree No. 42 of 2004, as added by Article 1, paragraph 175, letter g), number 3), of Law No. 124 of 2017, raised, with reference to Articles 3, paragraph 1, and 9, paragraph 2, of the Constitution, by the Council of State, Sixth Section, with the order indicated in the heading.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on September 24, 2025.

Signed:

Giovanni AMOROSO, President

Filippo PATRONI GRIFFI, Rapporteur

Igor DI BERNARDINI, Chancellor

Filed with the Registry on October 31, 2025

 

The anonymized version is textually consistent with the original