JUDGMENT NO. 51

YEAR 2026

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 handed down the following

JUDGMENT

in the proceedings concerning the constitutionality of Articles 65, paragraphs 3(a), 4, and 4-bis, 68, 70, and 72 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), initiated by the Regional Administrative Court for Lazio, Second Quater Section, in the proceedings between James Barry Fine Art Limited and the Ministry of Culture et al., by order dated August 28, 2025, registered as no. 205 in the 2025 register of orders and published in the Official Gazette of the Republic no. 44, first special series, of the year 2025.

Having regard to the act of intervention by the President of the Council of Ministers;

Having heard in chambers on February 23, 2026, Judge-Rapporteur Filippo Patroni Griffi;

Having deliberated in chambers on February 23, 2026.

Legal Findings of Fact

1.— By order dated August 28, 2025, registered as no. 205 in the 2025 register of orders, the Regional Administrative Court for Lazio, Second Quater Section, raised questions regarding the constitutionality of the combined provisions of Articles 70, 68, and 65, paragraph 3(a), "second sentence," "as well as the related" paragraphs 4 and 4-bis 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), with reference to Articles 3, first paragraph, 9, first and second paragraphs, and 97, second paragraph, of the Constitution, as well as the combined provisions of Articles 72 and 65, paragraph 3(a), "second sentence," "as well as the related" paragraphs 4 and 4-bis of Legislative Decree no. 42 of 2004, with reference to Articles 2, 3, first paragraph, 41, 42, and 97, second paragraph, of the Constitution.

Article 70 of Legislative Decree no. 42 of 2004 governs compulsory acquisition in export procedures under authorization (Article 65, paragraph 3) for items permanently present in Italy, while Article 72 of Legislative Decree no. 42 of 2004 governs the certificate of entry for items temporarily imported into the national territory.

The referring court challenges the scope common to both institutions: as a result of the combination of these provisions, for items "that present cultural interest, are the work of a deceased author, and were executed over seventy years ago," both compulsory acquisition and the certification of entry are permitted only if such items have a value exceeding 13,500 euros.

1.1.— The Regional Administrative Court (TAR) for Lazio reports that it is called upon to decide on the application filed by an Irish company—owner of an 18th-century painting—for the annulment of the compulsory acquisition order issued by the Ministry of Culture and Article 7, paragraph 5, of the Decree of the Ministry for Cultural Heritage and Activities no. 246 of May 17, 2018 (Conditions, methods, and procedures for the international circulation of cultural property), whose procedural prescriptions the aforementioned act had applied.

The work was purchased at an auction in Germany and subsequently transferred to Italy without formalities—being valued at less than 13,500 euros—only for the time necessary to subject it to technical examinations preparatory to potential restoration. Upon completion, in order to export the asset from the national territory again, the transport company submitted to the competent Export Office the substitute declaration of an affidavit provided for art objects executed more than seventy years ago, by a deceased author, and with a value below 13,500 euros, and in that procedural context, the Ministry of Culture ordered its compulsory acquisition.

The referring court—having previously rejected in a separate partial judgment a ground of appeal concerning certain procedural irregularities alleged against the challenged acts—assumes that, for the decision of both remaining claims, it is prejudicial to raise two distinct questions of constitutionality.

Firstly, in the first ground of appeal, the company complained of the illegitimacy of the measure due to the lack of prerequisites: Article 70 of Legislative Decree no. 42 of 2004, in conjunction with Articles 65, paragraph 3, and 68, would grant the administration the power of acquisition exclusively for items subject to the "prior authorization" export regime (called "certificate of free circulation" and governed by Article 68) and, therefore (among others), for so-called antique art objects with a value exceeding 13,500 euros (Article 65, paragraph 3(a)). The Administrative Court assumes the ground is well-founded, because the compulsory acquisition act was adopted with regard to an under-threshold work, but it raises ex officio doubts as to the constitutionality of the combined provisions of Articles 70, 65, paragraph 3(a), and 68 of Legislative Decree no. 42 of 2004, which limit the scope of the acquisition power to under-threshold works.

Furthermore, with the remaining ground, the applicant had highlighted the peculiarity of the case of "re-export of a good already coming from abroad" and thus presented "arguments in support" of the complaint of illegitimacy of the compulsory acquisition "as well as aimed at refuting that, in the present case, the Administration [could] activate" the procedure for declaring cultural interest.

Specifically, the company complained that it was not possible to request the "import" certificate for the painting at the moment of entry into Italy because it is not provided for items with a value below 13,500 euros by the combined provisions of Articles 72 and 65, paragraph 3 (correctly: paragraph 3(a)) of Legislative Decree no. 42 of 2004; consequently, the work could not benefit from the exemption from the cultural heritage protection regime guaranteed, only to goods in transit subject to certification, by Article 72 of Legislative Decree no. 42 of 2004 in conjunction with Article 173 of Royal Decree no. 363 of January 30, 1913 (which approved the annexed regulation for the execution of Laws no. 364 of June 20, 1909, and no. 688 of June 23, 1912, regarding antiquities and fine arts). The applicant complained that such preclusion conflicted with Articles 3, 41, 42, and 97 of the Constitution, and the TAR Lazio shares these arguments.

1.2.— The order contemplates the involvement in the two questions raised of paragraphs 4 and 4-bis of Article 65 of Legislative Decree no. 42 of 2004, which govern export upon submission of a substitute declaration of an affidavit (instead of prior authorization by the administration), to which are also subject items by a deceased author, dating back more than seventy years, with a value below 13,500 euros.

These, while containing procedural provisions on the transfer of cultural assets abroad, which therefore would not affect, respectively, the possibility, or lack thereof, for the administration to proceed with compulsory acquisition under Article 70 of Legislative Decree no. 42 of 2004, and for the applicant to invoke the exemption under Article 72 of the same code, "[h]owever" are involved by the referring court in the doubts of constitutionality "also to allow an intervention by the Constitutional Court that is as definitive and complete as possible."

1.3.— Regarding the non-manifest groundlessness, the order proceeds to illustrate the reasons for conflict with the Constitution of the regulations laid down by the Cultural Heritage Code with regard, separately, to the institutions of compulsory acquisition adopted in the export procedure of items permanently present in Italy (to which imported, but not certified, items must be equated) and of the certification of entry into the national territory with a corresponding "‘shield’ from protective interventions for works ‘in transit’."

1.3.1.— Specifically, with the first group of questions, the unconstitutionality of Article 70 of Legislative Decree no. 42 of 2004 is denounced in relation to the limitation of the objective scope of the acquisition power derived from its combination with Articles 68 and 65, paragraph 3(a) of the same decree.

The TAR Lazio starts from the premise that Article 70, paragraph 1, makes clear and exclusive reference to "item[s] for which a certificate of free circulation is required." This is governed by Article 68 of Legislative Decree no. 42 of 2004, which, in turn, refers to Article 65, paragraph 3 for the delimitation of the scope of application; the latter provision, in turn, allows the final exit from Italian territory, upon prior authorization, of certain types of objects of cultural interest, including the items indicated in letter a), i.e., works by a deceased author, which date back more than seventy years and have a value exceeding 13,500 euros.

Therefore, works with a value below this economic threshold would be excluded from compulsory acquisition, with a violation of Articles 3, first paragraph, 9, first and second paragraphs, and 97, second paragraph, of the Constitution.

Firstly, the limitation in question would give rise to a disparity of treatment between similar situations, given that for other types of assets that likewise are subject to export upon a certificate of free circulation, pursuant to Article 65, paragraph 3(b) and (c), of Legislative Decree no. 42 of 2004, no exemption for value threshold is provided. But such a difference in regulation would not be supported by a justification in harmony with the protection of cultural heritage provided by the Code.

Secondly, the exclusion of the acquisition intervention for works of reduced economic value would lead to a weakening of the promotion and protection of the national cultural heritage, "allowing [for] its easier private circulation."

Thirdly, the principle of good administration would be harmed because it would be unreasonably inhibited "the discretionary power of the Administration to identify elements that justify" the protection of compulsory acquisition with regard to assets of "relatively or presumably" modest value. The order notes in this regard that it would be irrational to condition the acquisition power of the public administration on the economic worth of an asset and therefore on a changing element, linked to market conditions, which may not reflect its cultural value.

1.3.2.— With the second group of questions, the referring Panel assumes the conflict of the combined provisions of Articles 72 and 65, paragraph 3(a), of Legislative Decree no. 42 of 2004 with Articles 2, 3, first paragraph, 41, 42, and 97, second paragraph, of the Constitution.

The first provision, in conjunction with Article 173 of Royal Decree no. 363 of 1913 (in force at the time of the facts), would guarantee the temporarily imported object, which has been certified at the moment of entry into Italy, to escape acquisition, restriction, and protection interventions by the administration.

However, given that Article 72, paragraph 1, refers to the items mentioned in Article 65, paragraph 3, the "‘shield’ from protective interventions" would be guaranteed to artworks above the 13,500-euro threshold and, conversely, could not find application for those below the threshold, such as the painting in controversy.

The described exclusion from the objective scope of the exemption in question of items with a value below 13,500 euros would prejudice, first of all, Article 3, first paragraph, of the Constitution due to disparity of treatment compared to items of a higher economic threshold to which that benefit is guaranteed.

Furthermore, the combined provisions of Articles 72 and 65, paragraph 3(a), of Legislative Decree no. 42 of 2004 would cause a disproportionate sacrifice to private economic initiative and property, hindering cultural and commercial exchanges as well as restoration and conservation activities for cultural assets.

Such vulnus would be reflected in the freedom of contract and, therefore, in an inviolable right of man as an individual.

The exclusion rule would also harm Article 97, second paragraph, of the Constitution due to the "unreasonableness of a public intervention in the context in question."

1.4.— The lower court takes care to exclude the feasibility of a constitutionally compliant interpretation in light of the clear literal wording of the challenged provisions.

Both Article 70 and Article 72 of Legislative Decree no. 42 of 2004 refer (the former indirectly, the latter directly) to Article 65, paragraph 3(a)—which, as a result of the amendments made by Article 1, paragraph 175, letter g), of Law no. 124 of August 4, 2017 (Annual Law for the Market and Competition), saw the authorization procedure reduced to works of an amount exceeding 13,500 euros—thus excluding from their respective fields of application works below that threshold.

2.— The President of the Council of Ministers entered an appearance in the proceedings, represented and defended by the State Attorney's Office, requesting that the raised questions be declared inadmissible or, in the alternative, unfounded.

2.1.— The intervenor starts from the summary of the regulation of the export of cultural assets allowed upon prior authorization (for items by a deceased author, over seventy years old, and of a value exceeding 13,500 euros) or upon a substitute declaration of an affidavit (for the same items of a value below that amount) and represents that, although the power of compulsory acquisition is provided for by Article 70 of Legislative Decree no. 42 of 2004 with reference only to over-threshold works, Article 7, paragraph 5, of Ministerial Decree no. 246 of 2018 expressly provides for such acquisition also for under-threshold assets.

2.2.— As a preliminary matter, the State defense raised an objection of "manifest inadmissibility or improcedibility due to a supervening lack of relevance."

In this regard, it is represented that with a decree of the Directorate General for Archaeology, Fine Arts, and Landscape of the Ministry of Culture of September 12, 2025, the compulsory acquisition decree challenged in the main proceedings was annulled, and therefore the applicant company would have obtained the full realization of its interest. Hence the opportunity for the restitution of the documents to the lower court so that it may re-evaluate the relevance of the question.

2.3.— On the merits, the act of intervention resisted the various questions raised.

2.3.1.— The President of the Council of Ministers focuses on the value thresholds linked to the doubts of constitutionality related to compulsory acquisition and the regime of goods in transit.

It argues, first of all, that the relevant identification constitutes a discretionary and reasonable choice of the legislature, adopted to calibrate public control over mobile cultural heritage and favor the lawful circulation of artworks, in compliance with the principles of good administration and proportionality. It would be analogous to that adopted in other European countries and consistent with the European Union legislation on the export of cultural property.

Specifically, the pecuniary watershed would constitute a technical-economic criterion necessary for the purpose of a correct balance between freedom of enterprise, simplification of the administrative procedure, and protection of cultural heritage. The State Attorney's Office makes two clarifications in this regard: on the one hand, the price declared by the interested party is subject to a system of checks and, on the other hand, if it is true that it does not reflect the cultural worth, it would express a reasonable probabilistic filter for the selection of cases in which the public interest is greater.

2.3.2.— Regarding the first group of questions, the State defense contests, first of all, the validity of the denounced disparity of treatment.

The fact that economic worth is not considered for all types of cultural assets, for the purpose of identifying their regime, would not conflict with the principle of equality given that the diversity between the cases justifies a different legal regulation of the same.

As for the protection of cultural heritage, the intervenor notes, it would in any case be guaranteed by the restrictability and the acquirability by the public administration in the exercise of the cultural right of pre-emption under Article 60 of Legislative Decree no. 42 of 2004.

Furthermore, the regime of value thresholds would be a direct consequence of the principle of good administration, allowing the administration's resources to be concentrated on cases with the greatest impact, avoiding litigation and superfluous burdens, and, at the same time, accelerating the management of procedural flows.

2.3.3.— Regarding the second group of questions, the State Attorney's Office recognizes that Article 72 of Legislative Decree no. 42 of 2004 ensures traceability and control, through the entry certificate, for only those objects that require, upon exit, the certificate of free circulation.

However, it deduces that the regulatory text would not exclude that even under-threshold assets are subject to the same regime, as indeed would happen based on the practical guidelines provided by the Directorate General for Archaeology, Fine Arts, and Landscape of the Ministry of Culture.

Legal Reasoning

3.— The TAR Lazio, Second Quater Section, with the order indicated in the heading (reg. ord. no. 205 of 2025), doubts the constitutionality of the combined provisions of Articles 70, 68, and 65, paragraph 3(a), "second sentence," "as well as the related" paragraphs 4 and 4-bis of Legislative Decree no. 42 of 2004, with reference to Articles 3, first paragraph, 9, first and second paragraphs, and 97, second paragraph, of the Constitution, as well as the combined provisions of Articles 72 and 65, paragraph 3(a), "second sentence," "as well as the related" paragraphs 4 and 4-bis of Legislative Decree no. 42 of 2004, with reference to Articles 2, 3, first paragraph, 41, 42, and 97, second paragraph, of the Constitution.

3.1.— Article 70 of Legislative Decree no. 42 of 2004 governs the power of the public administration to purchase cultural assets, permanently present on Italian territory, for which a request for export authorization (the certificate of free circulation under Article 68 of Legislative Decree no. 42 of 2004) has been filed. The power of acquisition is exercisable as an alternative (Article 70, paragraph 1) to the issuance of the authorization act or its denial (Article 68, paragraph 3). The interested party is, however, granted the right to prevent the acquisition by waiving the expatriation of the object, expressed prior to the notification of the "acquisition order" (Article 70, paragraph 2).

In particular, with the first group of questions, the referring court addresses its criticisms to the rule—derived from the combined provisions of paragraph 1 of Article 70 with Articles 68 and 65, paragraph 3(a)—which allows for "compulsory acquisition," where the transfer abroad concerns a work (other than archaeological finds, pieces resulting from the dismemberment of monuments, archives, and incunabula) that is "the work of a deceased author and whose execution dates back more than seventy years," only if it has a value exceeding 13,500 euros (Article 65, paragraph 3(a), of Legislative Decree no. 42 of 2004).

The correlated exclusion of the power of acquisition for the same type of objects (so-called antique art objects), if of a value below 13,500 euros, would give rise to an unreasonable disparity of treatment compared to other types of cultural assets, for which the power of acquisition is attributed to the administration regardless of their value (Article 65, paragraph 3(b) and (c)); to a weakening of the promotion and protection of cultural heritage; and to a violation of the principle of good administration.

3.2.— Article 72 of Legislative Decree no. 42 of 2004 governs the certification, at the request of the interested party, of "Entry into the national territory" of items temporarily brought in from abroad (paragraph 1). The certificate is issued by the export office on the basis of suitable documentation to identify the object and prove its regular origin from the territory of another Member State (called "certificate of shipment having taken place") or a third country (called "certificate of import having taken place") (paragraph 2). It has a five-year validity (Article 72, paragraph 3), and the regulatory legislation and the ministerial decree, to which Article 72, paragraph 4, refers, govern the re-expatriation carried out before the expiry of the certificate, providing for a facilitated procedure, which culminates in the issuance of a "discharge" authorization in the event of verification of the identity between the res presented and the "certified" one (Article 173 of Royal Decree no. 363 of 1913, in force at the time of the challenged act and subsequently repealed by Article 1, paragraph 1, of Law no. 56 of April 7, 2025, entitled "Repeal of pre-republican regulatory acts relating to the period from 1861 to 1946," but of which the subsequent paragraph 3 has maintained the "procedural effects"; Article 5 of Ministerial Decree no. 246 of 2018).

Also with regard to this institution, the lower court points its criticisms at the rule—derived from the combined provisions of Article 72, paragraph 1, with Article 65, paragraph 3(a)—which, in relation to the category of artworks "by a deceased author and whose execution dates back more than seventy years," allows the certificate of entry only if such works have a value exceeding 13,500 euros.

The corresponding preclusion of the entry certificate for objects of a value below 13,500 euros would determine—in turn—the unreasonable disparity of treatment of under-threshold imported goods compared to over-threshold ones; the incongruous sacrifice of private economic initiative and property; the compression of the freedom of contract, as an expression of an inviolable right of man as an individual; and the violation of good administration.

4.— The litigation a quo concerns an 18th-century painting, thus belonging to the category of works by a deceased author created over seventy years ago, but with a value of approximately 11,000 euros: as an under-threshold item, the legitimacy of the adopted compulsory acquisition is contested within the initiated procedure for the exit of items permanently present in Italy, which the first challenged rule would not allow, and it is further complained that it is impossible to avail oneself of the facilities connected to the certification of works in transit from abroad, which the second challenged rule had prevented from being requested at the time of entry into the national territory.

5.— As a preliminary matter, the objection raised by the intervenor of "manifest inadmissibility or improcedibility due to a supervening lack of relevance" due to the intervening annulment by the Ministry of Culture of the compulsory acquisition order for the painting challenged before the TAR Lazio must be examined.

The objection is unfounded.

The act of annulment by way of self-correction is dated subsequent (September 12, 2025) to the filing of the referral order (August 28, 2025), with the consequence that it constitutes a mere factual supervening event, irrelevant to the relevance of the questions according to the principle, expressed by Article 21 of the Supplementary Rules for Proceedings before the Constitutional Court, of the autonomy of the incidental constitutionality judgment, with respect to the events of the main proceedings subsequent to the propelling act (most recently judgments no. 190 of 2025, no. 120 of 2024, and no. 33 of 2022).

5.1.— Still as a preliminary matter, some profiles of inadmissibility of the questions raised must be noted ex officio, with reference both to the challenged rules and to some of the invoked parameters.

5.1.1.— First of all, the criticisms directed at Article 65, paragraphs 4 and 4-bis, of Legislative Decree no. 42 of 2004 are inadmissible.

The referring court involves in each of the two groups of questions those provisions, which govern the export procedure for items permanently present in Italy, of a simplified type ("upon substitute declaration of an affidavit," instead of "upon prior authorization by the administration"), to which are subject—among others—antique art items when they are under-threshold (Article 65, paragraph 4(b)).

However, it is the lower court itself that admits that, for the purposes of the solution of the controversy under its examination, it does not have to apply paragraphs 4 and 4-bis of Article 65 of Legislative Decree no. 42 of 2004, which constitute only the procedural context within which the administration adopted the challenged compulsory acquisition.

Therefore, the irrelevance of the questions as to the rules (not even exactly identified) laid down by Article 65, paragraphs 4 and 4-bis, of Legislative Decree no. 42 of 2004 is evident.

5.1.2.— Furthermore, with regard to the invoked parameters, for both groups of questions, there is inadmissibility of some of the criticisms formulated, due to insufficient motivation on the non-manifest groundlessness (ex plurimis, judgments no. 5 of 2025, no. 112 of 2024, no. 198, and no. 108 of 2023).

In particular, regarding the first group of questions, concerning the compulsory acquisition of items in export, permanently present in Italy, the denounced violations of Articles 3, first paragraph, and 9, first paragraph, of the Constitution are inadmissible.

Indeed, on one hand, the order does not set out the reasons for the alleged violation of the Republic's task to promote the development of culture (Article 9, first paragraph, of the Constitution), contrary to what it does in relation to the principle of protection of cultural heritage (Article 9, second paragraph, of the Constitution).

On the other hand, regarding the complaint of disparity of treatment, the lower court limits itself to deducing that for the additional types of items listed by Article 65, paragraph 3, under letters b) and c) subjected—like those subject to the challenged rule—to compulsory acquisition, no value threshold is provided. Therefore, the violation of the principle of equality is devoid of any argument in its support, given that the order neither describes the exact consistency of the categories of objects of cultural interest compared with art objects, nor investigates the regulatory context in which the differentiation on the economic level provided only for the latter is situated.

Instead, with regard to the second group of questions, concerning the certification of temporary entry from abroad of cultural assets, the denounced violations of Article 2 of the Constitution, due to compression of freedom of contract, and Article 97, second paragraph, of the Constitution, due to the "unreasonableness of a public intervention [in that] context" are inadmissible.

In both cases, in fact, the invocation of the parameter is generic and assertive.

6.— The examination of the merits of the further questions requires a brief premise on the context and the rationale of the contested threshold of 13,500 euros, which constitutes the delimitation of the scope of the two institutions, not because of the explicit provision of Articles 70 and 72 of Legislative Decree no. 42 of 2004, but because of their relatio to other provisions on the international circulation of cultural assets.

6.1.— The threshold by value, above or below 13,500 euros, is found within the regulation of the exit from the national territory of movable items of historical-artistic interest, permanently present in Italy, which are not already qualified or declared cultural assets (Article 65 of Legislative Decree no. 42 of 2004).

In particular, according to Article 65, paragraph 3(a), the valuation exceeding that amount is the condition for items "belonging to anyone, that present cultural interest, are the work of a deceased author and whose execution dates back more than seventy years"—other than archaeological finds, pieces resulting from the dismemberment of monuments, archives, and incunabula—to be subject to the export procedure "upon prior authorization by the administration" (the "certificate of free circulation" under Article 68 of Legislative Decree no. 42 of 2004).

Conversely, according to Article 65, paragraph 4(b), the value below 13,500 euros of items of the same type entails their subjection to the simplified export procedure, which requires only the submission by the interested party of a substitute declaration of an affidavit (Article 65, paragraph 4-bis), subject to an ordinarily documentary control by the public administration, governed by a specific ministerial decree.

The delineated distinction of the regime of transfer abroad applicable to so-called antique art objects depending on their economic value is due to Article 1, paragraph 175, letter g), numbers 2) and 3), of Law no. 124 of 2017, adopted for the declared purpose "of simplifying the procedures relating to the control of the international circulation of antique items that concern the antique trade market."

Such a distinct export regime (ordinary or simplified), to which antique art items are subject depending on whether they are above or below the threshold, does not, however, affect the power to declare them of cultural interest pursuant to Article 13 of Legislative Decree no. 42 of 2004: this Court has already had the opportunity to clarify (judgment no. 160 of 2025, points 8 and 12.1. of Legal Findings) that within both procedures the historical-artistic restriction can be affixed indifferently when, according to the technical-discretionary judgment of the public administration, the object presents the substantial characteristics required by Article 10, paragraph 3, of Legislative Decree no. 42 of 2004 (constituted by its type, belonging, degree of interest presented, and age).

6.1.1.— As correctly stated by the referring court, the value exceeding 13,500 euros, established by the legislature for the purpose of identifying the export regime, is "by reflection" the application prerequisite for the institutions subject to criticism as a result of the reference made by the provisions that provide for them to objects subject to the export regime upon prior authorization: indeed, on one hand, Article 70, paragraph 1, of Legislative Decree no. 42 of 2004 contemplates compulsory acquisition only for objects for which "the certificate of free circulation is required" identified (by virtue of the reference mentioned in Article 68, paragraph 1) by Article 65, paragraph 3, and on the other hand, Article 72, paragraph 1, of Legislative Decree no. 42 of 2004 allows the certification of entry into the national territory for "items or assets indicated in Article 65, paragraph 3."

It follows that neither compulsory acquisition nor the certification of entry are provided for so-called under-threshold antique art items, such as the work in controversy in the main proceedings.

7.— In light of this premise, the examination of the merits of the two groups of questions can be addressed.

7.1.— With reference to the first group of questions, the criticisms of violation of Articles 9, second paragraph, and 97, second paragraph, of the Constitution regarding the rule that defines the scope of compulsory acquisition by value are unfounded.

The legislative choice to limit the power of compulsory acquisition only to antique art objects with a value exceeding 13,500 euros performs a non-unreasonable balance between the protection of cultural heritage and the protection of the right to property, without at the same time prejudicing the good administration of the authority in terms of effective exercise of the protective function.

The characteristics of the special power of compulsory acquisition and the observation of the powers which, in general, are attributed to the administration for the protection and enhancement of the components of cultural heritage even if "of meager value" testify to this.

7.1.1.— In the first place, in fact, it is necessary to consider that the acquisition measure under Article 70 of Legislative Decree no. 42 of 2004 is considered in jurisprudence (Council of State, plenary session, judgment no. 7 of September 23, 1991; Court of Cassation, first civil section, judgments no. 15298 of July 6, 2007, and no. 4363 of July 30, 1982), in doctrine, and in administrative practice as a peculiar expropriative act, adoptable only in the context of the export of items permanently present in Italy, which the owner can paralyze by waiving the transfer abroad of the object.

The seizure for public ownership is considered preordained to enhance the art object and ensure its collective enjoyment, first of all through annexation to museum collections. But, evidently, this form of safeguarding historical-artistic heritage affects the right of property in more radical terms than the measure of declaration of cultural interest, which, by attaching the item to the list of cultural assets (Article 10, paragraph 3), guarantees its protection and conservation, limiting itself to conforming the owner's right (Article 3, paragraphs 1 and 2).

Although it is true that Article 70, paragraph 2, of Legislative Decree no. 42 of 2004 allows the interested party to preserve ownership (through the described waiver of export), the impeding modality that the legislature has chosen is not without effect for the property right: the owner must, in fact, renounce the exit of the object from national borders for a time that practice in the past considered unlimited and which is currently identified as five years (circular of the Ministry of Culture - Directorate General for Archaeology, Fine Arts, and Landscape no. 15 of March 6, 2025).

7.1.2.— In the second place, it must be remembered that on the item destined for expatriation—even following the waiver by the owner to transfer it abroad—the cultural restriction can be affixed, first of all, in the event that the substantial characteristics provided for by Article 10, paragraph 3, of Legislative Decree no. 42 of 2004 occur, without its economic value having any relevance (judgment no. 160 of 2025, point 7.1. of Legal Findings). Indeed, exclusively the verification of the existence of the cultural interest that "items can present" constitutes the condition of "secure belonging to the 'cultural heritage'" (judgments no. 45 of 2022 and no. 194 of 2013).

Furthermore, without distinction of value, the administration is recognized the power of expropriation when for the object, already declared a cultural asset, the public ownership "responds to an important interest in improving its conditions of protection for the purpose of public enjoyment" (Article 95, paragraph 1, of Legislative Decree no. 42 of 2004). Therefore, the general expropriative tool satisfies the specific enhancement needs to which compulsory acquisition is also preordained.

7.1.3.— It is not, in the end, censurable, on the level of constitutional legitimacy, the setting of a value threshold below which the administration is prevented from ordering the peculiar acquisition case governed by Article 70 of Legislative Decree no. 42 of 2004 and having identified such a threshold in the amount that makes "antique items that concern the antique trade market" (Article 1, paragraph 175, of Law no. 124 of 2017) subject to the simplified export regime instead of the ordinary one.

The meager economic valuation as a delimitation of the acquisition power is, if anything, an expression of a not manifestly unreasonable balance of the principles of the protection of cultural heritage and the good administration of the authority responsible for it, on one hand, with the right to property and the freedom of private economic initiative in the sector, on the other.

7.2.— In reference to the second group of questions, the criticisms of violation of Articles 3, first paragraph, 41, and 42 of the Constitution with regard to the rule that precludes the certificates of entry for temporarily imported items of a value below 13,500 euros are, instead, well-founded.

The function of the certification of regular origin from abroad of the item in transit leads to this conclusion.

7.2.1.— On one hand, as already mentioned (point 3.2.), the certificate of entry serves to allow the re-transfer abroad of the work that is its object, in a facilitated manner, through a discharge authorization, issued upon completion of the mere verification of the identity of the work certified upon entry and the one upon exit and, therefore, with a bound measure that disregards the discretionary evaluation of the cultural interest that the item can present. And this clearly distinguishes the facilitated procedure of the item in transit from the procedures provided for the item permanently present in Italy: for the latter, in fact, the evaluation of the cultural interest of particular or exceptional importance pursuant to Article 10, paragraph 3, of Legislative Decree no. 42 of 2004 constitutes the cause of the denial of the exit from the national territory (Article 68, paragraphs 3, 4, and 6, and 65, paragraph 4-bis, in conjunction with Articles 6, paragraph 2, and 7, paragraph 3, of Ministerial Decree no. 246 of 2018), in the "purpose of preserving 'the integrity of the cultural heritage in all its components' (Article 64-bis, paragraph 1, [of Legislative Decree no. 42 of 2004])" (judgment no. 88 of 2025).

On the other hand, the certification system is established to distinguish the object of cultural interest with respect to the one permanently present in Italy and thus, according to the unequivocal jurisprudence and the consistent administrative practice, to remove it, during the period of stay on Italian territory, from the application of the national legislation for the protection of cultural assets (Council of State, sixth section, judgments no. 93, no. 94, and no. 95 of January 5, 2026).

Both described favorable effects recognized to the certified work are considered an expression of a "derogation [...] from the general principle of territoriality of the law of protection of cultural assets," in favor of the laws of the country of origin (in jurisprudence, among many, TAR Lazio, Second Quater Section, judgment no. 7846 of April 22, 2025; in the same sense, TAR Veneto, second section, judgment no. 1382 of August 6, 2025; TAR Lombardia, third section, judgment no. 244 of January 30, 2024, as well as the opinion of the Legislative Office of the Ministry of Culture of March 9, 2009, having as its object the "Procedures relating to the international circulation of cultural assets: entry into the national territory").

7.2.2.— Now, with the rationale of the institution thus delineated, the unreasonable disparity of treatment determined by the challenged rule between under-threshold antique art items, for which the right to request the entry certificate is not provided, compared to over-threshold ones to which that right is recognized and thus the possible application of the illustrated favorable regime is guaranteed, is evident: the different regime applicable to items in transit depending on their value does not therefore find any justification.

Works of a more meager economic valuation, which, according to id quod plerumque accidit, are those that are transferred between different States with more frequency and ease (both for personal needs of the owner or the author, and because they are the object of sales or other contracts), require, even more than those of greater value, the guarantee of an expedited re-export procedure and the exemption from the national heritage protection regime in the period of stay in Italy. On the other hand, for items permanently present in Italy, precisely this more limited amount is the reason for the simplification of the expatriation regime.

7.2.3.— The same considerations lead to the validity of the complaints of disproportionate and unreasonable compression of the freedom of private economic initiative and the right to property.

Indeed, denying the certificate of entry to works temporarily imported into Italy of a value below 13,500 euros makes the operation of the protection regime of Italian legislation contradictory, otherwise derogated for those of a higher amount with the application of the legislation of the foreign country of origin.

The consequent risk of seizure of the art object, already subject to foreign law, for the Italian cultural heritage paralyzes the aforementioned circulatory needs between different countries typical of the art market, characterized by the natural ultra-national dimension, compressing at the same time the ownership rights to enjoy and dispose of the object of cultural interest between different nations. The restriction is even more serious with regard to circulation between Member States of the European Union (Articles 34 to 36 of the Treaty on the Functioning of the European Union).

8.— Having found the vulnus, the solution to remedy it must be identified.

For reasons of clarity, it is deemed appropriate to intervene—rather than, as hoped for by the referring court, with a judgment of partial ablation of the rule, judged constitutionally illegitimate, resulting from the combined provisions of Articles 72 and 65, paragraph 3(a), of Legislative Decree no. 42 of 2004—with an additive judgment on Article 72, paragraph 1, which attributes and delimits the power of certification.

Indeed, the petitum of the referral order has the function of clarifying the content and the direction of the criticisms moved by the referring judge, but it does not bind this Court, which, where it deems the questions well-founded, remains free to identify the judgment most suitable for the reductio ad legitimitatem of the challenged provision (among others, judgments no. 210, no. 146, and no. 53 of 2025, as well as no. 90 and no. 46 of 2024).

Therefore, Article 72, paragraph 1, of Legislative Decree no. 42 of 2004 must be declared constitutionally illegitimate in the part in which it does not provide that the entry into the national territory of the items referred to in Article 65, paragraph 4(b), of Legislative Decree no. 42 of 2004 ("items that present cultural interest, are the work of a deceased author and whose execution dates back more than seventy years, whose value is less than 13,500 euros") is certified, upon request.

8.1.— Pursuant to Article 27 of Law no. 87 of March 11, 1953 (Rules on the constitution and functioning of the Constitutional Court), the declaration of constitutional illegitimacy must be extended, as a consequence, to another rule identical to the one now declared constitutionally illegitimate, relating to another category of cultural assets. Indeed, by virtue of the combined provisions of Articles 72, paragraph 1, and 65, paragraph 3, the exclusion of the entry certificate also applies to the further type of objects for which (like under-threshold antique art works) export upon authorization is not provided for, but which is subject to the simplified export regime: that is to say, "works of painting, sculpture, graphics and any art object by a living author or whose execution does not date back more than seventy years" (combined provisions of Article 65, paragraph 4(a), and 11, paragraph 1, letter d).

For such "recent" art objects, the free exercise of the art market and the faculties of the owner must be preserved even more. It involves, in fact, works which according to Article 10, paragraph 5, are "tendentially excluded from the cultural heritage, except for the exceptions of the finding of extrinsic cultural interest" (Article 10, paragraph 3, letters d and d-bis [...]) for "the precise legislative choice [made by the 2017 reform] to leave the production and marketing of the works of living artists or the market for works of deceased artists, but of recent execution, of which the artistic evaluation is premature, free from limits" (again, judgment no. 160 of 2025 point 5.1. of Legal Findings).

Also in this case the most suitable judgment for the reductio ad legitimitatem is constituted by the declaration of constitutional illegitimacy of Article 72, paragraph 1, of Legislative Decree no. 42 of 2004, in the part in which it does not provide that the entry into the national territory of the items referred to in Article 65, paragraph 4(a) (that is to say—through the reference to Article 11, paragraph 1(d)—"works of painting, sculpture, graphics and any art object by a living author or whose execution does not date back more than seventy years") is certified, upon request.

FOR THESE REASONS

THE CONSTITUTIONAL COURT

1) declares the constitutional illegitimacy of Article 72, paragraph 1, 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), in the part in which it does not provide that the entry into the national territory of the items referred to in Article 65, paragraph 4(b), of Legislative Decree no. 42 of 2004 is certified, upon request;

2) declares, as a consequence, pursuant to Article 27 of Law no. 87 of March 11, 1953 (Rules on the constitution and functioning of the Constitutional Court), the constitutional illegitimacy of Article 72, paragraph 1, of Legislative Decree no. 42 of 2004 in the part in which it does not provide that the entry into the national territory of the items referred to in Article 65, paragraph 4(a), of Legislative Decree no. 42 of 2004 is certified, upon request;

3) declares inadmissible the questions regarding the constitutionality of Article 65, paragraphs 4 and 4-bis, of Legislative Decree no. 42 of 2004, raised, with reference to Articles 2, 3, first paragraph, 9, first and second paragraphs, 41, 42, and 97, second paragraph, of the Constitution, by the Regional Administrative Court for Lazio, Second Quater Section, by the order indicated in the heading;

4) declares inadmissible the questions regarding the constitutionality of the combined provisions of Articles 70, 68, and 65, paragraph 3(a), of Legislative Decree no. 42 of 2004, raised, with reference to Articles 3, first paragraph, and 9, first paragraph, of the Constitution, by the Regional Administrative Court for Lazio, Second Quater Section, by the order indicated in the heading;

5) declares inadmissible the questions regarding the constitutionality of the combined provisions of Articles 72 and 65, paragraph 3(a), of Legislative Decree no. 42 of 2004, raised, with reference to Articles 2 and 97, second paragraph, of the Constitution, by the Regional Administrative Court for Lazio, Second Quater Section, by the order indicated in the heading;

6) declares unfounded the questions regarding the constitutionality of the combined provisions of Articles 70, 68, and 65, paragraph 3(a), of Legislative Decree no. 42 of 2004, raised, with reference to Articles 9, second paragraph, and 97, second paragraph, of the Constitution, by the Regional Administrative Court for Lazio, Second Quater Section, by the order indicated in the heading.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on February 23, 2026.

Signed:

Giovanni AMOROSO, President

Filippo PATRONI GRIFFI, Drafting Judge

Roberto MILANA, Director of the Registry

Filed in the Registry on April 14, 2026