All the contradictions of the Catania Charter: no to hasty abdication to the private sector

The Catania Charter introduced in Sicily the possibility of granting works and artifacts from the deposits of public museums for use by private individuals for a period of two to three years. What are the problems? We discuss them with a jurist, Sergio Fo, and an archaeologist, Clement Marconi.

It came to order last Nov. 12, in the Culture Commission of theSicilian Regional Assembly, with a hearing of the regional councillor for cultural heritage and Sicilian identity Albero Samonà. We are talking about the “Catania Charter,” the decree by which the Sicilian Region wants to grant cultural assets in its warehouses to private individuals for use at a fee. Laudizione was, therefore, postponed until next Tuesday with the request of M5S parliamentarians to hear the authoritative voices of technicians who have expressed strong concerns.

After theinterview with Settis, who rejected it, and criticism from Legambiente, Italia Nostra, National Association of Archaeologists, Ranuccio Bianchi Bandinelli Association of Rome, Do you recognize me? I’m a cultural heritage professional, ICOM Italy’s Sicily coordination joined in closely, and the issue bounced back to "Il Fatto Quotidiano“ and several times to ”La Repubblica."

The alert threshold should be kept high, because it would not be the first time that exclusive competence in the matter and primary legislative power would allow the autonomous Sicilian Region to depart from the dictate of the Cultural Heritage Code or interpret it “creatively.” In a pejorative sense, of course. Among the most recent precedents, the regulation of loans has been modified so as to refer the decision to the political body (the Assessore dei beni culturali), subtracting it from the technical one, as instead provided for by the Code (art. 48), precisely. So much for the principle of the legal system whereby public offices are distinguished into policy and control bodies on the one hand, and implementation and management bodies on the other.

Returning, then, to the “Catania Charter,” given the not a little confusion created by the three documents (the Charter proper; the first decree of November 30, 2020; and the “guidelines” of December 10, 2020), the report in "La Repubblica“ (”Sicily, the other face of museums: the invisible treasures preserved in the repositories") had the merit of clarifying once and for all that Sicilian repositories have always, without the need for ad hoc laws and legends, been open to important discoveries, in some cases going to implement permanent exhibitions; that these are assets that have always been both lent to other venues and a point of reference for scholars. And that, we read further, the region has always “lent artifacts for temporary exhibitions in museums around the world.”

But if “loans” from repositories have always happened in the past, what need was there for a new rule? The fact is that, another effect of that confusion, it regulates concessions in use, not loans. And since the same alderman who signed the decree does not seem to have clear ideas on this point, we decided to hear the opinion of an authoritative jurist, Sergio Foà, Professor of Administrative Law at the University of Turin. Samonà, in fact, in "La Repubblica“ declares that thanks to the Charter, assets will be able to be ”lent for temporary exhibitions,“ that is, for exhibitions, lasting a few months, for which practices of loan and not of concession in use are instructed, which differ in terms of longer duration. In fact, the decree speaks of a concession of ”a duration of between two and seven years, tacitly extendable once."

After all, an example of how to do well without having to invent anything that is not already there comes from Catania itself. At the Ursino Castle, they took advantage of the closure imposed due to Covid for an unprecedented reorganization of the repositories, using municipal staff usually employed in the city museums that are inaccessible for the moment, and looking ahead to the expansion of the civic museum and the city’s museum network.

But the reportage’s roundup of assets and works of art also makes something else clear: that precisely those are not the assets covered by the Sicilian Charter. In fact, in order to be granted for use, the assets must only be those “acquired by confiscation” or “of older acquisition whose documentation has been lost” or lacking “reference to their context of belonging” (Art. 3 of D.A. No. 74 of Nov. 30/2020). So what does this have to do with the finds from the thirteen thousand tombs excavated at Himera, whose context of provenance is precisely known? Or Mario Minniti’s Christ Carrying the Cross, which does not even belong to the Messina Regional Museum, being in storage by the Lucifero Foundation of Milazzo? How could the Region cede for use an asset it does not own! A “treasure,” then, not quite “invisible,” since its good deposit left it for an exhibition in Tokyo and Okazaki in 2001 and 2002 and one in Messina itself in 2017. But what, then, giving concrete examples, are the assets that will be granted? At the moment it is not known. Yet one must already have something in mind, without having to wait for students or volunteers to draw up the lists required by the decree.

To try, then, to put things in order and better understand, this time we listened to Clemente Marconi, a professor at the Institute of Fine Arts of New York University and a full professor at the University of Milan, and who has been working with the Regional Department of Cultural Heritage and Sicilian Identity since 2006, for the mission he heads in Selinunte, and who in the deposits of the Salinas Museum in Palermo has discovered more than 200 precious fragments of metopes just from Selinunte.

Another example, which fits like a glove, of the inescapable need for an “expert” eye to go over the heritage to be granted for use, is offered by the recognition by an official of the regional department, Lucia Ferruzza, of the urchins belonging to the Head of Hades, in storage since the 1970s, first in the warehouses of Agrigento, then of Aidone. One of these curls had been published in the thesis of then-student Serena Raffiotta, who without the confrontation with the official would not have arrived at that recognition, a prelude to the work’s return in 2016 by the Getty Museum in Malibu.

On the need for the expert eye, they must have realized it even in the Department, so much so that in the Guidelines issued close to our interview with Settis, in addition to university interns, “volunteers from cultural associations who have appropriate qualifications” were added. Open heavens, put a patch a chasm has opened for the strong concerns about the hypothesis of exploitation of qualified specialists, manifested in particular by Ana, the National Association of Archaeologists, and the group Mi riconosci.

We also asked Samona to respond to the criticism. The journalist alderman preferred to send us through his press secretary a laconic half-line, in which he refers us to the reading of the two decrees, “highlighting their adherence to the spirit and contents of the Cultural Heritage Code.” To understand whether this is so, let us turn the floor over to Professor Foà.

L'Antiquarium di Himera. Ph. Credit Davide Mauro
The Antiquarium of Himera. Ph. Credit Davide Mauro

Mario Minniti, Cristo portacroce (olio su tela, 125 x 95 cm; Messina, Museo Regionale, in deposito dalla Fondazione Lucifero di Milazzo)
Mario Minniti, Christ Carrying the Cross (oil on canvas, 125 x 95 cm; Messina, Regional Museum, on deposit from Lucifero Foundation of Milazzo)

The opinion of Sergio Foà, professor of administrative law at the University of Turin

We asked Sergio Foà to comment on the possible contradiction, in the assessor’s decrees in question (numbers 74 and 78 of 2020), between references to the discipline of loans and reference to the institution of the concession for the use of cultural property. In particular, in fact, we noted that the measures under consideration refer to previous assessor’s decrees(of 2013 on the “exit from the regional territory” and 2019 on temporary loans) that regulate the matter of loans, when the subject of the decree is the concession for the use of cultural property (Art. 106 of Legislative Decree 42/2004).

Reflections of a legal nature, intertwined with others of an economic and political nature, confirm our thesis.

“To frame the issue,” Foà explains, "it is necessary to understand the exact scope of the legal institutions of reference. The aim pursued by the decrees themselves is literally the valorization and public enjoyment of state and patrimonial property in storage in regional repositories (Articles 1 and 5 of Decree No. 74 and the entire layout of Decree No. 78, on the ’guidelines’ for the notice for concession for use). Now, there is no doubt that the enhancement of public property of cultural institutes and places and its allocation for public use is an expression of a public service, as is clear from the Cultural Heritage Code itself (Art. 101, paragraph 3). The public service is obligatory, so it requires the titular entity to make the goods usable to the community, choosing the form of management of the service deemed most appropriate among those offered by the system: when the choice falls on indirect management, it will proceed to entrust the enhancement service by concession to a third party, at the outcome of a public evidence procedure. This public service obligation applies to all cultural property owned by the institution, so it cannot be excluded for repositories. In the present case, on the other hand, the choice made is different, because the institution referred to by the first assessor’s decree is the concession for the use of cultural property, not the concession of the enhancement service. The difference is important because it reveals a choice: for the goods of the museum repositories, a concessionaire is not chosen to enhance them within the cultural institution, but rather a party who undertakes, through a valorization project, to enhance them elsewhere for a period of between two and seven years, moreover extendable for one time, for a fee. It is therefore a renunciation of a form of valorization on the part of the cultural institute and the Region: the circumstance that the assets are not currently intended for public display does not imply, in fact, that there is not equally an obligation to valorize them and, therefore, to make them primarily usable in situ, even those ’deprived of any reference to their context of belonging.’"

In other words, the region has chosen to transfer its responsibilities to private individuals instead of returning competence to institutions . The jurist moves on, then, to the shortcomings and contradictions of the decrees: “The choice that has been made,” Foà continues, "is therefore to regulate a concession for the use of the assets and not a concession of the valorization service, but the normative references, within the decrees, do not correspond. In fact, Art. 106 of the Cultural Heritage Code (Individual Use of Cultural Heritage) is referred to, which provides for the possibility of granting, for consideration (against fees), the use of cultural assets in consignment, for purposes compatible with their cultural destination, to individual applicants. But the discipline dedicated to concession is instead that of the enhancement service ( Articles 112 and 115 of the Code are referred to: Article 5 of Decree No. 74 and Article 2 of Decree No. 78). While it is true that cases of mixed-object concession contracts can be found in practice, in our case the two institutions are different, because the regulations dictated by the Cultural Heritage Code are different and the purposes pursued are different(a valorization of the asset as a public service is quite different from a concession of use to a third party outside the cultural institution’s premises). The references made by the decrees under review to the discipline on valorization probably tend to mitigate this aporia and weakness of the choice made, which is based on the presumption that granting the good in museum storage to a third party is the only way to valorize it."

But that’s not all: lending is a different thing from granting it for use. "Theother profile of imprecision concerns the references to the discipline on the lending of cultural goods, which the first decree operates by referring to previous council decrees,“ Foà points out. ”It is well known that the loan of cultural goods is an institution typified in Art. 48 of the Cultural Heritage Code, which allows it for exhibitions and expositions, and by Art. 66 on temporary exit abroad, for that reason alone making it distinct from a concessionary relationship of duration, such as the multi-year one that is instead regulated here. Some authors believe that the loan would be traceable to the contract of commodate, governed by the Civil Code, thus essentially free of charge, and that this model would not be applicable to state property and available heritage assets, with the consequence that the discipline of concession would also be applicable to the loan. This is a reading that emphasizes the economic aspect of development, because it aims to extend the onerous nature of concession to cases of lending as well. The assertion is only partly correct: it is indeed true that the public administration cannot dispose of state property and non-disposable assets through private law contracts, but this does not detract from the fact that the ’loan’ is a different institution from the ’concession in use’“ of the asset.” In short, we are faced with the not infrequent “temptation” to combine the two institutions, the result of an interpretation of valorization in purely economic terms. Bringing the loan back to the genus of the concession is, in fact, at least convenient because it generates revenue.

“The same discipline of the Cultural Heritage Code on admitted loans,” Foà concludes, "albeit laconic, confirms that the institution of lending is typified and distinct and can therefore be used only for the purposes described therein. In our case, in other words, the issue concerns the preferential choice for a consideration obtained by the concessionaire over the enhancement of the asset in the cultural institution or otherwise within the Region. In this respect, too, therefore, the first assessor’s decree under consideration here seems confusing, because it recalls a previous regional discipline on loans, in addition to the discipline on the valorization service, while its object is the concession for the use of cultural property."

It is not difficult to imagine how with such approximate normative devices there is a risk of putting the regional administration in trouble in case of judgments before the Tar, because, even if one wanted to force the legal dictate to trace the loan back to the concession, one would come up against the incontrovertible fact that the loan has a purpose and duration quite different from the latter.

Sergio Fo
Sergio Fo

Clemente Marconi
Clement Marconi

Clemente Marconi, professor at the Institute of Fine Arts at New York University and professor of Classical Archaeology at the University of Milan

From the formal and normative folds we move to the contents of the decrees. Clement Marconi dwells, first of all, "on some general elements against the ’Charter’. The purpose of the document is to regulate the concession for use of cultural goods belonging to the State Property and the patrimony of the Sicilian Region in storage in the warehouses of peripheral institutions, such as museums and superintendencies, introducing, in particular, the concession for a fee. In doing so, the ’Charter’ makes explicit reference to the Cultural Heritage Code, despite the fact that Article 6 of that Code speaks of valorization as an activity intended to promote knowledge of cultural heritage, ’not to make money,’ as Settis wrote: with language that is perhaps crude but reflects the ’Charter’s’ emphasis on payment for the purpose of granting the use of assets and its various modalities (see in this regard Article 6, the longest of the decree)."

“The second problem with the ’Charter,’” Marconi continues, "is its reference to cultural goods ’in storage in regional repositories.’ As Article 2 of the decree states, ’it is an essential precondition for the concession for use [...] that the cultural goods are not intended for public display.’ It is clear that the entire structure of the decree is based on a dichotomy between works in storage and works on public display and on a static model of a museum. Such a model might seem very practical and in line with various local realities, but I am afraid it is also outdated today. To remain in my field of investigation, ancient art, on the level of the value to be given to the works, we are today well beyond the distinction (considered by many elitist and detrimental to the study of ancient art history in the contemporary world) between major and minor works: the ’masterpieces’ in the main (and permanent) exhibitions and the ’lesser’ works in the repositories, as useless and cumbersome. ’Minor’ works actually often play a crucial role in the knowledge of ancient artisans, their techniques, and the expectations of a large segment of the ancient art public. To an art historian in the tradition of nineteenth-century aesthetics, main (and permanent) exhibition and repositories might be conceived of as two separate and impermeable realities; but to anyone who is aware of the contemporary reality of the study of ancient art, there should be no barrier between the two spaces-nothing lies, and everything is in motion. Not for a coincidence, in the last two decades, a central problem for many museums internationally has been to resolve the dichotomy between the main exhibition and the repositories, in the sense of enhancing the latter. Suffice it to mention the case of the new exhibition (2007) of the Metropolitan Museum’s Galleries of Greek and Roman Art, which set aside ample space for a ’Study Collection’ that is fully usable by the public, allowing the public to view thousands of works, from the Neolithic period to Late Antiquity, arranged in a compact but clear manner, with computers with touch screen monitors providing the visitor with all the necessary information. A Study Collection, of course, contiguous (at the Mezzanine) to the main exhibition, as the works in one immediately refer to the other and all together speak of the museum, its history, and its identity."

The distinguished archaeologist then goes on to comment literally on the legal text. "From personal experience I must then express doubts about the list of goods ’in storage in repositories’ destined for concession in use, which in the ’Charter’ appear to be divided into three categories: goods acquired by confiscation; goods donated or handed over spontaneously; or goods ’of older acquisition whose documentation has been lost and, in general, those deprived of any reference to their context of belonging.’ The first two categories would deserve a separate commentary(declassifying goods removed from the clandestine trade or donated could appear counterproductive, from various points of view: certainly for those who, like me, have been engaged for years against the illicit trafficking of archaeological goods, often from Sicily, to the United States), but I will focus on the third, which I consider truly problematic."

And here Marconi introduces by way of example his personal experience with the Selinuntine metopes. "They lay in hundreds of fragments in the storerooms of the Regional Archaeological Museum of Palermo ’Antonino Salinas’ since 1823, and all knowledge of their identity had been lost over time. Thanks to their attribution to the various sculptural cycles from Selinunte, several of these fragments have been reunited, as well as with each other, to works exhibited in the Hall of the Metopes, and several of these reunions are now part of the new display of the ’Salinas’."

What would have happened instead, following the dictate of the “Charter”? “That these materials, of which all reference to their context of belonging had apparently been lost,” Marconi responds, "could have been given in concession for use, thereby making it impossible, through the consequent dismemberment of the material, to analyze the fragments contextually and carry out the reunifications. More generally, I personally believe that the primary purpose of museums should be not only the organization and care of the repositories equal to that of the main exhibition, but also the identification of the provenances of the adespoti materials through archival research and the contribution of specialists. At the risk of appearing paradoxical, my personal opinion is that it should be especially those items whose context of origin has apparently been lost, and whose actual potential for research and value is unclear, that should be jealously guarded in the repositories." Here, then, we are again faced with another form of devolution to private individuals of responsibilities of institutional relevance. He adds, “to be even more paradoxical, with respect to the ’Charter,’ I then wonder how far it is possible to establish the actual economic value of assets belonging to this third category.”

Like other influential voices who have already expressed strong concern about these decrees, Marconi also makes the assumptions on the ideal level. “Having expressed these doubts about the ’Catania Charter’ in a spirit of constructive criticism, however, I must also add that its starting point, namely the intention to enhance the value of cultural goods in the deposits of the peripheral regional institutes, seems to me more than appreciable and desirable. Sicilian museum deposits are also, to use Settis’s words, ’a kind of golden reserve of research that is to come,’ and the Department’s commitment to valorize their materials is absolutely meritorious.”

The issue of the involvement of student trainees, however, he sees it from a different point of view than Settis: "I share with the ’Charter’ the idea of involving for the cataloguing of the goods in the repositories, in addition to the cataloguers, ’university students in disciplines related to the conservation of cultural heritage.’“ But at the same time he confirms that research and cataloguing activities by students have been taking place since before the assessor’s decree in the form of conventions with universities, such as the one between Milan State University and the Salinas. And in the end he ends up converging with Settis’s concerns: ”of course, staffing shortages in museums must be solved with new hires, and in no way can the involvement of university students serve as a palliative: I am sure the Regional Department fully agrees. But it is a fact that the involvement of university students in forms of internship (as is often the case for graduate school students) related to the enhancement of assets in museum repositories is essential to their training, in which the repository becomes the equivalent of a research laboratory. However, I would hope that such involvement of university students would go through conventions between universities and regional institutes, as indeed already happens today, including the State University of Milan where I teach, creating synergies that would contribute both to the valorization of materials in repositories and to the training of students, directed in research and cataloging by qualified museum staff and university professors. In the latter regard, I would like to emphasize that the activity of inventorying and cataloguing of goods stored in repositories is anything but elementary and ’innocent,’ often requiring a conspicuous interpretive effort, which demands scientific coordination at the highest levels (from the side of museums as well as the university): cataloguing experience, per se, is not enough, much less good will." And here again we return to the question of the indispensable upstream supervision of the student by an experienced eye.

Marconi concludes with "an alternative suggestion to the ’Catania Charter,’ and on a fundamental point. I would propose, as a place of valorization of the goods kept in the regional repositories, not other public and private places, but precisely the peripheral Institutes, such as Museums, that house them. In this proposal of mine, I am clearly conditioned by my 20 years of living in New York, and by frequenting and sometimes interacting and collaborating with museums such as the Metropolitan and MoMa: whose philosophy is to periodically rearrange major exhibitions by making extensive use of materials in the repositories and to propose new exhibitions, each year, that enhance these works. Based on this experience, I believe that the ideal solution for the proper valorization of the holdings in the deposits is for the Department to incentivize the peripheral institutes to propose similar rearrangements or new periodic exhibitions that draw systematically on the holdings in the deposits. A process of continuous metamorphosis of collections and new exhibition offerings, based on the assets in the deposits, which cannot fail to have beneficial effects on the volume of visitors to the Peripheral Institutes. A great opportunity not to be deprived of, in Sicily as in New York."

In the end, then, it is interesting to see how two specialists in such different disciplines converge: against hasty abdications to the private sector of its public responsibilities, the best form of valorization must take place in the public institutes themselves, where only that osmosis between exhibition and reserves can be guaranteed.