Important work by Dalí leaves Italy and is sold abroad. Tar rules against the ministry

Italy has let slip an important work by Salvador Dalí that was on our national territory. The affair is not new, but a new and probably decisive chapter has been written in these days. It all began in 2020, when the Isabella Scelsi Foundation, owner of the diptych entitled Couple aux têtes pleines de nuages, decided to put it up for sale: as is the practice, the Foundation communicated its intention to the Ministry of Cultural Heritage, which authorized the export, and as a result the work was auctioned at the London-based Bonhams house where it was sold for 7.8 million euros, plus auction fees. Later, however, the ministry issued a decree annulling the certificate of free movement in self-defense.

As a result, the sale was suspended. The Foundation appealed to the Regional Administrative Court, and last August 29 the verdict was published: the annulment decree was found to be unlawful, and the ministry was ordered to pay compensation for court costs (about 10 thousand euros) incurred by the Foundation and the auction house.

The story, in detail, begins in the 1950s, when musician and composer Giacinto Scelsi, who established the Isabella Scelsi Foundation in 1987, was living with his partner, American art dealer Frances McCann. McCann bought the work in Paris in the 1950s, and when the relationship between the two ended, she decided to give the diptych to her former partner, who, in 1984, moved it to a vault at the Cassa di Risparmio di Roma. Scelsi died in 1988 and the foundation named after his sister acquired his inheritance, but the diptych remained in the vault until 2004, when the work was loaned for an exhibition at Palazzo Grassi in Venice. Thereafter, from 2004 to 2019, the Foundation, due to the significant costs of managing the work’s storage, decided, with the permission of the ministry, to give the work on free loan to the Mart in Trento, which took on the custodial charges. The Mart kept it mostly in storage, but lent it for exhibitions held in various cities: Venice (2004-2005), Stockholm (2009-2010), Milan (2010-2011), Vienna (2011), Rome (2012), Dublin (2015-2016), Bern (2017), London (2017-2018), and Barcelona (2018).

The Mart, however, regretted that it “did not have the time to design a new and adequate exhibition context in the permanent collections for favoring their loan in relevant international exhibitions” (so in an email sent to the Foundation in 2019). Just three years ago, the Scelsi Foundation, in order to finance some initiatives, decided to sell the work at Bonhams. The auction house had immediately contacted the Ministry of Culture to identify the procedure to be followed. A complaint was therefore filed with a fact sheet and statement of value (11,600.000 euros), and the commission of the export office in Rome, meeting on December 10, 2019, while recognizing the quality of the diptych, the formal originality of the silhouettes and the elegance of the painting, considered granting the certificate of free circulation, assessing that it was a work by a non-Italian author, and considering it to be a work with no connection to the Italian context: this was enough for the ministry to consider that a departure of Couple aux têtes pleines de nuages would not harm our cultural heritage.

On December 16, the Directorate General for Archaeology, Fine Arts and Landscape suspended the proceedings, noting the need to acquire the opinion of the National Gallery of Modern Art in Rome (GNAM), whose directorate, on January 21, 2020, issued an opinion in favor of circulation. The work was then delivered to Bonhams for sale, which was to be held in London. However, on the very day of the sale, October 15, 2020, only 3 hours and 15 minutes before the auction began, Service IV of the General Directorate of Archaeology and Fine Arts of the Ministry of Cultural Heritage notified the Scelsi Foundation of the decree of cancellation of the certificate of free circulation by way of self-defense. In the meantime, the painting was being sold for 7.8 million euros, but conditionally, since news had arrived of the cancellation of the certificate of free circulation.

It had in fact happened that the Ministry considered the certificate illegitimate. Primarily because of some formal flaws: in fact, the ministry believed that the Scelsi Foundation should have preliminarily activated the procedure of verification of cultural interest according to the requirements of the Cultural Heritage Code, and it was specified that the Foundation had not provided relevant details for the purpose of assessing the cultural interest of the work, such as the relevance of the paintings to the “House Museum” of Giacinto Scelsi and the contract of loan for use to the MART at which the works were exhibited as proof of objective artistic and cultural relevance, and that the Foundation’s administrators could not have been unaware of the procedure, having already in 2004 interlocuted with the ministry for the Palazzo Grassi exhibition. Moreover, the ministry noted that the diptych constituted an example of Surrealist painting and therefore held at least “simple” cultural interest, which, however, would have prevented export. This cultural interest should have been inferred from the fact that Couple aux têtes pleines de nuages, according to the Ministry, may have been made in Italy: in fact, in 1936 Dalí stayed first in Cortina d’Ampezzo and then in Lucca, as a guest of Countess Pecci Blunt, and then again in 1937 in Ravello as a guest of Edward James, and again in 1938 as a guest of the same in Rome. According to the Ministry, the work was probably made in Italy during this period. Finally, they noted the work’s pertinential connection with Scelsi’s home in Rome (where a blow-up of the work was also placed in the living room), the diptych’s stable hinging in the panorama of national cultural offerings because of the years it was at the Mart, and the relationship between Dalí and Scelsi in the sphere of Surrealist culture, since both frequented the same cultural circles in both Paris and Rome and may have known each other.

The Foundation therefore challenged the measure annulling the certificate of free circulation, considering it illegitimate, for reasons of form (according to the Foundation, the proceedings carried out at the Exportation Office would in any case have achieved the substantive purpose of verifying the absence of that artistic-cultural interest that would have legitimized the denial of exportation), and rejecting the alleged mendacity of the statements made in the complaint. Moreover, according to the Scelsi Foundation, in the course of the investigation that ended with the adoption of the certificate of free circulation, the Ministry did not direct its investigation with respect to a certain type of cultural interest (“particularly important”) rather than another (“simple”), having rather ruled out, at root, any cultural interest of the work in question, on the basis of the criteria established for this purpose by the Ministry (aesthetic quality of the work, originality of the stroke), having been created by a non-Italian artist and in the absence of any connection with the Italian artistic context. Finally, the annulment measure would be flawed in that it lacked adequate reasoning regarding the existence of the alleged cultural interest of “simple” rank, which was an obstacle to the free circulation of the work (the administration allegedly misrepresented information regarding Dalí’s travels to Italy). Art critics, the Foundation pointed out, have in fact never traced the diptych to Dalí’s stay in Italy, or to the cultural influences of our country or its territory, pointing out, if anything, that if reciprocal influences existed, they would be to be traced between Dalí and the Surrealist artist René Magritte. Moreover, there would be no special ties between Dalí and Scelsi, since the two did not know each other, plus the diptych was purchased by the composer’s partner. Therefore, there would also be no pertinential ties to Scelsi’s house, especially since the artist chose of his own free will to place the work in a vault.

The Foundation also noted that since in Italy there are two works by Dalí at the Guggenheim in Venice and three at the Vatican Museums, the presence of the diptych on the national territory would not be necessary to promote awareness of surrealist culture. As for the Mart connection, however, it was noted that the Trentino museum has practically never shown it in Italy and has almost always loaned it out for exhibitions abroad. Even the very “rarity of the piece” adduced by the Ministry as a reason for not releasing the work, according to the Foundation would confirm the lack of the prerequisites for the affixing of the bond, since on the basis of the technical criteria enunciated by the Ministry, it would stand, in the Italian pictorial panorama, in a totally isolated manner and not sufficient to absolve the country’s cultural growth towards the poetics of surrealism. The Bonhams auction house, moreover, also challenged the measure declaring the diptych’s cultural interest with censures similar to those of the Scelsi Foundation.

The TAR found the appeals by the Scelsi Foundation and Bonhams to be well-founded. The Lazio court meanwhile found, the ruling reads, that “’the competent offices of the Ministry’ to which the Rome Export Office forwarded the application for the issuance of the Certificate of Free Circulation, submitted by the Bonhams auction house, having taken note of the tenor of the same, in which it unequivocally results - apart from the erroneous reference to the lack of provenance of the good from the entities referred to in Art. 10 Code - that the work in dispute, with a declared value of 11,600,000.00, signed by Salvador Dalí, is the property of the Isabella Scelsi Foundation - they could well have initiated ex officio the procedure of verification of cultural interest under Art. 12 Legislative Decree No. 42/2004. And that the procedure of ’verification’ of the so-called ’simple’ cultural interest referred to in Articles 10 paragraph 1 and 12 should not, necessarily, travel on parallel tracks with respect to the procedure of ’declaration’ of ’reinforced’ cultural interest referred to in Articles 10 paragraph 3 and 13 Legislative Decree no. 42/2002, under penalty of the illegitimacy of public agere, is admitted, in the case in point, by the State Bar itself.” As for the possibility that the work was made in Italy, “these circumstances were extensively and effectively refuted by the Scelsi Foundation and the auction house, to the point that the relevant objections subsequently induced the Ministry, in the verification/declaration procedure of ’cultural interest.cultural interest initiated at the same time cancellation of the certificate, to, so to speak, ’adjust its pitch,’ recognizing the implausibility of the assumptions in question.”

It would then be, the Regional Administrative Court ruled, “agreeable to the censure formulated by the Scelsi Foundation according to which the alleged karmic link between the work of Dalí and the composer Scelsi would be unsuitable to justify the declaration of cultural interest in dispute, translating into irrelevant personal considerations of the draftsman of the measure.” Moreover, relevance to Scelsi’s house, which has now become a museum house, cannot be inferred “from the fact of having retained at the home in Via San Teodoro no. 8 the mere blow-up of a ’foreign’ work of art which, from the late 1980s until the time it was transferred abroad (2020), was duly kept - as a private asset of enormous economic value (as much as 11.600,000.00 euros) - first in the vault of a Roman bank and, from 2004 onward, in the storage of a Trentino museum, which, for the most part, allowed it to be exhibited abroad.”

Again, according to the Tar, “the procedure of verification of the so-called simple cultural interest, pursuant to the combined provisions of Articles 10 paragraph 1 and 12 paragraphs 1 and 2 of Legislative Decree No. 42/2004, was, therefore, conducted in defiance of the general guidelines set by the Ministry and in application of an impermissible criterion that is entirely new, personal and detached from the artistic characteristics of the work.” Finally, on the fact that Dalí’s work would promote awareness of Surrealism in Italy, the Tar concluded, “the Foundation’s pithy objection that the measure in question completely lacks the ascertainment: Of the possible presence, on the Italian territory, of an adequate quantity of works by the artist under discussion, suitable for appreciating its singularity; of the content relevance and the complexities of the painting’s techniques; of the possible existence, on the territory, of a qualitative offer sufficient to represent the development of a cultural artistic path that is usable for the community.”

For the Ministry of Culture, however, the doors may now open for an appeal to the Council of State, which will have the final say in the matter.

Important work by Dalí leaves Italy and is sold abroad. Tar rules against the ministry

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