Market Overview of the Spanish Art Sector

Spain is one of the largest contributors to the EU art market, following France, Germany, and Italy. However, despite being a country with significant artistic production – both historically and in the present day – as well as receiving important art collections and artistic works from Latin American artists (thanks to cultural proximity), the legal framework does not contribute to fostering a thriving art market.

Notably, auction houses such as Sotheby’s and Christie’s, which have branches in Spain, do not hold auctions in Madrid or Barcelona and limit their activities to attracting clients. Meanwhile, prominent international art galleries have opened new locations in Madrid and Barcelona, enriching the artistic offerings alongside the dynamic Spanish galleries.

From the perspective of international art fair organisation, Spain stands out with the considerable influx of collectors and public visitors to the ARCO Fair – a contemporary art fair held annually in Madrid, attracting nearly 100,000 visitors each year between late February and early March. The fair has regained its attendance numbers after the pandemic-related decline in previous years.

Regarding public collecting, there are significant public museums in Spain whose acquisitions are primarily sourced through the exercise of pre-emptive rights in public auctions or art fairs. Until the early 21st century, the payment of taxes in kind was a supplementary method for national museums such as the Museo del Prado, the Museo Reina Sofía in Madrid, or the MNAC (Museu Nacional d'Art de Catalunya) in Barcelona to incorporate significant artworks into their collections. However, this option has ceased to be accepted by the Ministry of Finance, with the exception of museums within the autonomous communities or regions, which – owing to decentralisation – have the authority to accept tax payments through the delivery of cultural heritage artworks.

Lastly, the discovery of a substantial volume of artworks seized during the Spanish Civil War (1936–1939) that were never returned to their rightful owners during the Franco regime, has generated a series of claims that have led to some restitutions between 2022 and 2024. This is prompting the implementation of new due diligence protocols and verifications for art dealers and auction houses to mitigate risks, especially given that Spain has not experienced a proliferation of restitution claims related to Nazi-looted art (as seen in other European countries), with notable exceptions to be explained.

Protective legal framework for Spanish historical heritage

The Law of 25 June 1985 on the Protection of Spanish Historical Heritage (the “Spanish Historical Heritage Law”) plays a crucial role in regulating the export of cultural goods, as it is highly protective of items classified as part of Spain’s historical heritage. The Ministry of Culture’s Board of Qualification, Valuation and Export decides on the issuance of export permits without predetermined criteria, making such decisions unpredictable.

The main concern for art dealers and collectors is that, in the event of a denied permit, the State is not obliged to purchase the item. However, by denying the export permit, the government initiates the process of declaring the item a cultural asset of interest. This results in a reduced market value, as the item is restricted to the Spanish market. In such cases, and if there is sufficient legal basis, sellers may appeal the denial through administrative or judicial means. Judicial practice shows that very few appeals are upheld, as courts predominantly support the decisions made by the Ministry of Culture. These regulations explain why sale prices for Spanish art and antiques are generally lower than in neighbouring countries, with most sales taking place in contemporary and modern art galleries, whereas auctions account for only 20% of the market.

Recent disputes in the Spanish art market

Disputes related to art sales are governed by the Civil Code and the Law on Civil Proceedings, with specific provisions for transactions between professionals. In transactions with consumers, the Retail Trade Law applies (particularly for auctions), and the principle of good faith governs the interpretation of contracts.

A notable case in 2023 involved the acquisition of the painting Crown of Thorns or Ecce Homo (attributed to Michelangelo Merisi da Caravaggio), which was declared unexportable and classified as an asset of cultural interest (bien de interés cultural, or BIC) by the Ministry of Culture and the Regional Government of Madrid. The painting was to be sold at auction for EUR1,500 but it was withdrawn from the auction. After restoration and research, the painting was indubitably attributed to Caravaggio, making it one of the last sleepers (lost works) of the artist discovered worldwide. Acquired by a private collection, the painting can only be exported with a temporary permit.

In 2024, significant legal matters included the restitution of the Portrait of the Marquise de Llano (attributed to Rafael Mengs) to the family of Ramón de la Sota. The painting had been seized during the Spanish Civil War and had been stored in Burgos Town Hall since 1938 – before which, its origins were unknown. This restitution adds to other restitution cases from 2022, including a portrait of a gentleman by Van der Voort and another portrait of a lady by Spanish painter Luis de la Cruz. In 2024, the National Library of Spain also had to return a 19th-century portrait to the Francisco Giner de los Ríos Foundation, an educational institution persecuted and looted during the Spanish Civil War.

Art transactions: sales and auctions

Sales of art – whether private or at auction – are subject to the special regulations governing art sales, including the obligation for accurate descriptions of items and their authenticity. The Ministry of Culture can block the export of art offered at auction if the item is classified as part of Spain’s historical heritage. Auction houses must notify the competent authorities of any artwork that is more than 100 years old – regardless of its economic value – within four to six weeks prior to the sale.

Special provisions apply to art auctions, such as the requirement to disclose if a work is a forgery or imitation. Spain’s legal framework provides two avenues for dealing with forgeries – namely, the Civil Code for transactions between private individuals and the Retail Trade Law for public sales, with specific protections for buyers in certain circumstances. Courts are strict in evaluating errors in contracts, particularly regarding whether the buyer’s consent was influenced by a forgery. In commercial transactions, the focus is on protecting the seller, with art dealers typically being responsible for ensuring the authenticity of works.

Auction houses in Spain do not currently offer advances, loans or guarantees on artwork. The security interest commonly taken against art or antiquities is a non-possessory pledge, specifically regulated for art, antiques and collectibles. This pledge involves granting a security interest over movable property while the collateral remains in the debtor’s possession as a deposit. It requires execution through a public deed and registration in the Chattel Registry.

Art loans and cross-border transactions

Spain adheres to international conventions protecting art loans, including the 2005 United Nations Convention on Jurisdictional Immunities of States. If a collector loans an artwork to a public museum in Spain, the collector can request the issuance of an immunity certificate from the Director-General of Fine Arts at the Ministry of Culture.

Spain also regulates cross-border art transactions, particularly through the Spanish Historical Heritage Law. The law categorises cultural goods into three levels based on their significance, each with specific export permit requirements. The government holds a pre-emptive right to purchase items classified as cultural heritage, and any unreported sale or unlawful export results in the State claiming ownership of the item.

This legal framework aims to protect Spain’s cultural heritage while ensuring that transactions involving art are carefully regulated to prevent unlawful exportation and preserve national treasures. Spain also imposes a tax on the export of cultural goods outside the EU, ranging from 5% to 30% of the item’s value, depending on its worth. This tax is highly unfavourable for art dealers, as there is no comparable tax in other European countries, imposing an additional burden on exports to third countries from Spain. Despite repeated calls from the art market to abolish this tax, it remains in effect as of 2026.

Illicit export of artworks from Spain results in severe consequences. The Spanish Historical Heritage Law provides for the seizure of the item, which automatically becomes state property, as well as fines. If the cultural good is valued at more than EUR50,000, the operation is classified as smuggling, with penalties ranging from one to five years in prison and fines from one to six times the value of the item, in addition to its expropriation without compensation.

AML policies

The prevention of money laundering and terrorist financing is regulated under Law No 10/2010, which has included art and antiquities dealers as parties obligated to comply with these regulations when selling items valued at EUR1,000 or more. The transposition of the EU’s Fifth AML Directive into Spanish law broadened the scope to include intermediaries in the art and antiquities markets, as well as professionals engaged in trade within freeports. However, contrary to initial expectations, Spain maintained a threshold of EUR1,000 – rather than the EUR10,000 threshold specified by the EU – for compliance with due diligence obligations. This creates greater obligations for Spanish art intermediaries compared to their European counterparts, requiring due diligence for sales under EUR10,000, which are of lower value.

Copyright infringement

Copyright infringement in Spain is regulated by the Intellectual Property Law, which provides for compensation for damage based on the economic consequences for the author of the infringement. Unauthorised reproduction, distribution or public communication of a work with the intent to obtain an economic benefit constitutes a crime, punishable by fines and imprisonment for six months to four years under the Criminal Code. On 4 November 2021, the Intellectual Property Law was amended to transpose EU Directives 2019/789 and 2019/790 concerning copyright and related rights in the digital single market into Spanish law. Notably, Article 48 bis now permits authors to terminate the authorisation or assignment of their economic rights if those rights are not exploited by the assignee for more than five years.

A significant ruling in this area is Ruling No 776/2022 from the Juzgado de lo Mercantil No 9 of Barcelona (dated 11 January 2024), in the case of VEGAP (Visual Entidad de Gestión de Artistas Plásticos) against Mango. This case, which marks the first Spanish court ruling on copyright in the context of NFTs, involved the alleged unauthorised use by Mango of artworks by Spanish visual artists such as Joan Miró, Antoni Tàpies, and Miquel Barceló through NFTs for the inauguration of its Fifth Avenue store in New York. The court ruled that there was no infringement of moral rights, as these rights had been exhausted after the first public exhibition of the artworks in the 1970s, 1980s and 1990s. As for economic rights, the court ruled that the NFTs represented new works with their own originality and applied the “fair use” doctrine, finding Mango’s use legitimate for a non-profit event that did not harm the spirit of the works.

Trusts, foundations and estates

Foundations (charities) serve as a useful structure for the ownership or management of art collections in Spain. They are governed by the Law on Foundations at the national level and by regional laws in each of the 17 autonomous communities. The Law on Incentives for Patronage provides tax exemptions that benefit foundations holding artwork.

On 20 December 2023, a reform of the Law on Incentives for Patronage was published, effective from 1 January 2024. This reform aims to improve conditions for donations and collaboration between non-profit entities and donors (both individuals and corporations). Key changes for the cultural sector include an increase in tax deductions from 35% to 40%, as well as a rise in the deduction base for crowdfunding from EUR150 to EUR250. Additionally, the law now includes a new type of deductible collaboration (ie, the transfer of movable or immovable property to a non-profit entity) and allows the provision of services and in-kind aid as deductible donations for tax purposes. However, the incentives remain limited compared to those in other European countries and fail to generate a positive effect on artistic patronage.

In conclusion

The regulations governing the Spanish art and antiquities market are among the most restrictive in Europe, particularly in terms of export licensing. They are unique in that they impose an export tax on cultural goods destined for third countries. Despite long-standing requests for reform from the cultural sector, the Spanish Historical Heritage Law remains largely unchanged, even though the regulation predates Spain’s entry into the EU in 1986. Furthermore, the sector continues to criticize the application of a 21% VAT on the sale of artworks, a 10% on art imports to Spain, and the introduction of the new Wealth Solidarity Tax, which also applies to works of art.

These legal constraints hinder the growth of the Spanish art market, where prices can be up to 50% lower than those in international markets. Although patronage incentives have been slightly increased, they remain insufficient to stimulate private support for artistic creation.