Art market. The legal status of provenance in Slovenia

The word provenance comes from the French word ‘provenir’, which means “to originate.” In the context of the art market, we can define provenance as the historical record of an object’s ownership. According to the Provenance Guide produced by the International Foundation for Art Research (IFAR), provenance is crucial for three reasons. The first is authenticity, as it can support claims about the work’s authenticity. The second important aspect is (financial) valuation. A well-documented provenance for an artwork can have a positive impact on its value in the art market, whereas the absence of documented provenance can have a negative impact on the financial value of the artwork. The third aspect is ownership. Established provenance can also serve as proof of legal ownership. Provenance research is an essential component of due diligence for all parties involved in the modern art market. In the introduction to the book Provenance Research Today: Principles, Practice, Problems, Arthur Tompkins defined provenance research as a “multidisciplinary portfolio of knowledge, techniques, venues, resources and activities deployed initially by museum and collection curators, and latterly by a much wider variety of those involved with art.” Provenance research uncovers and evaluates the history of an artwork. Given the varying circumstances, not every artwork or antiquity has a fully traceable provenance.

In Slovenia, the concept of provenance has not been a common topic of discussion, either academic or otherwise. This may need to change due to recent efforts by the gallery and auction house SLOART to establish a professional art market in Slovenia. Until recently, there was almost no official or standardized art or antiquities market in the country, which was mostly limited to private sales between individuals. A few small private galleries also sell works of art. However, there have long been regular sales of illegally excavated artifacts, including online. These artifacts, often obtained through metal detecting or sold between collectors, typically lack archaeological provenance or documentation regarding their origin.

On December 7, 2024, the auction house SLOART organized a major auction in Ljubljana at the Grand Plaza Hotel. The auction catalogue listed 39 lots with a total estimated value of 1.3 million euros. Due to this figure, Slovenian media referred to the event as “the auction of the decade.” All the works on offer were created by Slovenian artists from the Impressionist, Expressionist, and Modernist periods. The auction catalogue featured works by some of the most famous Slovenian artists in history, such as Ivana Kobilica, Rihard Jakopič, Ivan Grohar, Maksim Gaspari, and others. On its website and in the catalogue, SLOART Gallery and Auction House stated its goal of establishing an orderly, fair, and transparent art market in Slovenia. Media reports indicated that the primary objective of this auction (which they claimed to be the first of many) was to set reference prices for Slovenian artworks and to establish high professional standards for art auctions in the country.

After the auction, SLOART faced some criticism from various Slovenian media outlets. However, most of the criticism focused on the low number of sales, as approximately three-quarters of the lots offered remained unsold (the sold artworks totaled €179,000 out of the €1.3 million). Additionally, the newspaper Delo highlighted another issue: lot 34, purportedly a work by Avgust Černigoj, was withdrawn from the auction due to questions about its authorship. I am not mentioning this auction to evaluate it in terms of financial success. Rather, upon reviewing the auction catalogue, I noticed that of the 39 lots offered, only two included any provenance information. These were lots 13 and 14, both works by Janez Boljka. The only other provenance information about the auctioned works came from a report by 24ur (dated December 8, 2024). In an interview, the director of SLOART described the origins of the items offered as follows: “Some come from inheritances, some come from collectors, some are just from parents who have passed away and then they were put up for sale.” From this statement, it is impossible to obtain clearer information about provenance. This raises the question: What are the legal obligations of participants in the Slovenian art market regarding the provenance of objects?

To answer this question, I will explore the Slovenian legal framework for the protection of cultural property. The art market in Slovenia is primarily regulated by the Cultural Heritage Protection Act, adopted in 2008 (known in Slovenian as Zakon o varstvu kulturne dediščine, or ZVKD-1). It is also subject to the Act on the Prevention of Money Laundering and Terrorist Financing (Zakon o preprečevanju pranja denarja in financiranja terorizma, or ZPPDFT-2). The Cultural Heritage Protection Act is particularly relevant to this discussion. Article 45 of the Act is the key section regulating the art market. Paragraph 5 obliges dealers to conduct due diligence to verify the provenance of objects. Paragraphs 2 and 3 require dealers in cultural property to maintain records of sales, which must include information on provenance, a description of the object, and the sale price. These records must also identify the possessor or owner and the buyer. Notably, the last part of paragraph 3 obliges sellers to inform buyers of any potential export restrictions on the objects. However, the article does not require sellers to provide buyers with provenance information. On the contrary, paragraph 7 of Article 45 mandates that sales records (which include provenance details) must remain confidential.

On December 20, 2024, a draft of a new Cultural Heritage Protection Act (ZVKD-2) was presented for public discussion. The proposed text introduces changes to the regulation of the cultural property market in Article 99. This new article requires sellers to disclose provenance information to buyers prior to a sale. Sales records remain crucial and must include the same details as outlined in ZVKD-1. Additionally, sellers must now provide buyers with the results of due diligence conducted on an object’s provenance, including any supporting documentation. The final version of Article 99 will be crucial to watch.

An analysis of the current legal status of provenance in the Slovenian cultural heritage legal system shows that sellers of cultural property are not legally obliged to publish the provenance of the objects offered for sale. This is consistent with practices in many other countries. Under current legislation, it is the buyer’s responsibility to request provenance information before making a purchase. The question remains: How well-informed are buyers about the importance of provenance? Publishing provenance details can be regarded as an ethical obligation in the art market. The book Trafficking Culture: New Directions in Researching the Global Market in Illicit Antiquities describes how the two largest auction houses, Sotheby’s and Christie’s, implemented such practices. Statistics in the book show that the percentage of antiquities offered with published provenance rose in the late 1990s and early 2000s, reaching 90–100% between 2005 and 2013 (data from Sotheby’s New York and Christie’s London). This change followed allegations that some of Sotheby’s London employees had knowingly collaborated with infamous antiquities dealers Giacomo Medici and Vaman Ghiya. High-profile cases against Giacomo Medici and Robert Hecht in the late 1990s and early 2000s further spurred these auction houses to adopt higher professional and ethical standards, including publishing provenance information. However, even today, such information is often selective or incomplete.

Finally, I want to emphasize that the official art market in Slovenia is still in its earliest stages. SLOART and other potential actors have a significant responsibility to adhere to the highest legal, ethical, and professional standards. Regarding the provenance of antiquities or artworks, Slovenian legislation has considerable room for improvement. The forthcoming Cultural Heritage Protection Act offers Slovenian authorities an opportunity to make substantial progress. At the same time, while SLOART’s last auction offered works of art with a low risk of illicit provenance, the company could take the lead in setting an ethical standard by prioritizing the publication of provenance information. This is crucial because the future direction of Slovenia’s art and antiquities market—and the actors involved—remains unknown.

Bibliography

International Foundation for Art Research (IFAR), Provenance Guide. Available at: https://www.ifar.org/provenance_guide.php (Last accessed: 18 January 2025).

Mackenzie, S., Brodie, N., Yates, D. and Tsirogiannis, C., 2020. Trafficking culture: New directions in researching the global market in illicit antiquities. London and New York: Routledge.

Komelj, M., 2024. Jesenska dražba galerije SLOART: impresionizem, ekspresionizem, modernizem. Ljubljana: Galerija SLOART : Zavod za promocijo likovne umetnosti. Available at: https://www.sloart.si/sloART/img/JesenskaDrazbaSLOART.pdf (Last accessed: 18 January 2025).

Tompkins, A. (ed.), 2020. Provenance research today: Principles, practice, problems. London: Lund Humphries in collaboration with IFAR.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice (ŽB).