Wojciech Szafrański

This article presents the art market in Poland with a focus on existing problems and potential threats to its transparency. The Polish art market is young and therefore vulnerable when it comes to globally occurring trends and shifts. However, there are some trends that are typical for the Polish realm, such as the existence of non-professionals who are connected to the cultural sector because of their profession (art historians, monuments conservators, museum collaborators, journalists) and act successfully as middlemen. Diminishing risks and mitigating threats is possible with an introduction of new legal regulations and future art market self-regulation. In this regard, applicable international and European legal instruments must be taken into account. 

In the Polish legal model, as enshrined under Article 388 of the Polish Civil Code, exploitation may be called upon only when three main factors have been inclusively fulfilled: at the moment an agreement was concluded between the services of the contracting parties there existed a gross disproportion (an objective factor); the party concluded the agreement being in a coerced position, in a state of disability or inexperience (a subjective factor on the side of the aggrieved party); the second party took advantage of the above mentioned circumstances (a subjective factor on the side of the aggrieving party). The regulation of Article 388 of the Polish Civil Code protects the aggrieved party in an illusory manner, while the person touched by the exploitation will have immense difficulty in affecting the agreement concluded, in particular if the subject of this is a work of art. The illusiveness results mainly from the fact that the awareness on the part of both parties to the contract of the ease with which the exploiter can avoid any negative consequences whatsoever through the uniqueness of the mechanisms functioning in the sales of works of art such as the asymmetry of information within the art market and the privileged position, given the said, of the intermediary, the culture of the market, the specific nature of works of art and its evaluation through the significant input played by an expert.

Heritage protection law is one of the youngest branches of law. It is still developing, like a child on its way to adulthood. By using the parallel narrative between the chosen literary works for children (The Snow Queen by Ch. Andersen, The Chronicles of Narnia by C.S. Lewis, The Wonderful Wizard of Oz by L.F. Baume and Pippi Longstocking by A. Lindgren) and future challenges for heritage law, the authors aim to present different directions of development relating to heritage identity, extending the field of protection by law (by encompassing intangible heritage and other areas), valuation of heritage, and the problem of bringing heritage to the public domain and the reverse process.

The specific conditions of the art market constitute a perfect place in which crime can function well and flourish by making use of increasingly more sophisticated mechanisms used in the international trade in these objects. There are certain myths, such as the myth of the dual market (legal and illegal), the myth of faith in national law and in soft law, or the myth of a young market. However, reality shows a poor understanding of the mechanisms that are present in the art market and a spreading of those myths, which in consequence leads to a further strengthening of the pathologies that do exist in the market, such as, among other things, corruption, price manipulation, or the legalization of stolen or excavated objects. In this paper, the pathologies occurring in the art market are categorized and the case study presented shows the practical difficulty of solving the conflict that arises between a seller (owner) and a buyer in good faith as well as the shortcomings of the new model referred to as an eternal rhombus.

Implementing the 5th AML (Anti-Money Laundering) Directive in the form of a 2021 amendment to the Act on Counteracting Money Laundering and Terrorism Financing in Poland is of fundamental importance for the market. It will be binding upon entities such as entrepreneurs operating in the field of trading in works of art, collectors’ items, and antiques covered by transactions worth at least 10,000 euros. The AML Directive presents a fragmentation of the Polish legal regulations on trade and thus the obligations imposed on intermediaries in the art market, depending on whether the regulations are developed based on cultural heritage protection regulations or economic and financial regulations. It shows the incompatibility of concepts used in both fields and the range of meanings of legal concepts that are directly relevant for the law’s application, and the specification of obligations imposed on entrepreneurs specialized in the trade of what is broadly understood as cultural goods. The essential elements of AML, crucial for entities operating in the art market, were presented. Attention was also paid to further work on trading regulations based on the due diligence model.

This article deals with the export of monuments and the existing combination of an object’s age and value while issuing permits. It provides an analysis of the procedure of permanent export focusing on a single license for permanent export in the Polish legal system. The authors offer a new questionnaire model (Value of Heritage Test) to support the procedure undertaken by experts of the Polish ministry of culture and national heritage involved in the process. The VOH test aims to diminish the risk of mistakes in assessing objects’ roles and meanings for national cultural heritage and reassure that the justification meets high standards. 

The uniqueness of the art market covers the specifics of the subject of sale and the mechanisms in operation for subjects taking part in the process of sale, as well as the tradition of a market based on the specific bond between the seller and the buyer. The experience of foreign markets with the participation of the most famous auction houses has confirmed that the art market is also susceptible to the appearance of agreements limiting competition (restrictive agreements) and ones causing monopolistic practices. In observing the development of the Polish art market it is forecast that together with a strengthening of those supplying the market with goods as intermediaries (auction houses) there could shortly appear restrictive agreements within this market. The article offers a comprehensive analysis of relevant provisions of EU law as well as Polish law (in particular that of the 16th of February 2007 on consumer protection). It equally shows the impact of the changing legal surroundings within both foreign and Polish markets in the concluding of restrictive agreements (non-uniformly defined by national legislators of cultural heritage, the dynamic changes in the regulations relating to the shipment of monuments as well as the potential of institutions res extra commercium)

The reliability of prices is crucial to every market. Hence valuation, i.e. activities aimed at determining the market value of an object, is an important activity for the art market. An appropriate model of art valuation had not been developed yet on the Polish art market. Activities of experts in field of art valuation are also not proper. The reasons of this situation and the most important defects in art valuation are described in this paper. Additionally, those subjects with the appropriate knowledge and skills necessary for art valuation are identified. The activities of the appraisers of the Minister of Culture and National Heritage and of market experts who have already worked for museums and public institutions are especially highlighted. Moreover, the most crucial elements which should be included in an art valuation are suggested.