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Germany: Act to Protect Cultural Property Passed

(July 19, 2016) On June 23, 2016, the German Bundestag (parliament) adopted a revised Act to Protect Cultural Property which protects certain national cultural property from being exported, restricts illegal trade in cultural goods, and facilitates the retrieval of cultural goods that were exported unlawfully. (Gesetz zur Neuregelung des Kulturgutschutzrechts [Act To Amend the Law on Cultural Property] (Act) (June 24, 2016) Federal Government website.) The Bundesrat, the constitutional body through which the German states participate in the legislative process, approved the Act on July 8, 2016. (Beschluss des Bundesrates, Gesetz zur Neuregelung des Kulturgutschutzrechts [Decision of the Bundesrat, Act to Amend the Law on Cultural Property], DEUTSCHER BUNDESRAT: DRUCKSACHEN UND PROTOKOLLE [BR-Drs.] 346/16 (Beschluss) (July 8, 2016), Bundesrat website.) It will enter into force following signature by the Federal President and publication in the Federal Law Gazette. (Basic Law for the Federal Republic of Germany (May 23, 1949), Bundesgesetzblatt [BGBl.] [Federal Law Gazette] I at 1, as amended, art. 82, GERMAN LAWS ONLINE (unofficial English translation).)

Overview

The new legislation is a comprehensive reform of German national law regarding the protection of cultural property, combining existing legislation into a uniform act and amending it significantly. It also implements the EU Directive 2014/60/EU (Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State and Amending Regulation (EU) No.  1024/2012 (Recast), 2014 O.J. (L 159) 1, EUR-LEX), as well as the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Convention, Nov. 14, 1970, 823 U.N.T.S. 231, UNESCO website).

License Requirement for Cultural Goods within the European Union

The legislation enables German authorities to prevent permanent or temporary exports of cultural goods to other EU Member States by requiring export licenses for certain cultural works. (Act, § 21.) To date trade of cultural goods within the EU internal market has not been subject to any major limitations.

The license requirement applies to goods that are included on the national list of cultural treasures. The Act defines a national cultural treasure as “national cultural property of outstanding significance for the nationwhose removal would cause a “significant loss.” (Id. § 7.) The list of national cultural treasures has existed since 1955, but there has been no uniform definition of that term before the adoption of the Act. The classification procedure is conducted by independent committees that consist of five experts, selected by the German State Agency; these committee members may come from publicly run institutions responsible for the preservation of cultural property or university faculties or may be art and rare book dealers or private collectors. (Id. § 14.)

If the creator of the work is still alive, the competent authorities need to seek his or her consent to place the work on the list. (Id. § 7, ¶ 1.) Approval is also required from a lender whose work is on loan with a public institution. (Id. § 6,  2.)

Age and Value Limits

A permit will also be required for exporting other cultural goods that are not classified as national cultural treasures, if they fall under certain age and value limits set out in section 24 of the Act. As an example, a painting that is 75 years old, worth €300,000 (about US$332,500), and not currently owned by the creator of the work, requires a permit for its export. (Id. § 24, ¶ 2, no.1.)

Exports to Non-EU Countries

Exports of cultural goods to non-EU countries will not be affected by the Act, since these exports are already subject to an EU regulation that is directly applicable in Germany. (Council Regulation (EC) No.  116/2009 of 18 December 2008 on the Export of Cultural Goods (Codified version), 2009 O.J. (L 39) 1, EUR-LEX.) The regulation provides that exports of cultural goods to non-EU countries are subject to an export license. (Id. art. 2.) A license can be denied if the cultural goods fall under certain age or value limits specified in the annex. The limits are generally stricter than the threshold values contained in the amended German legislation for export within the EU; for example paintings more than 50 years old that do not belong to their originators are covered. (Id. annex I, A.3.)

Import of National Cultural Property

The new legislation also prohibits the import of goods that other countries deem to be national cultural property (Act, § 28) in order to limit illegal trade. Furthermore, it stipulates an obligation to return national cultural property in exchange for compensation. (Id. §§ 49 -57.) Germany, other EU Member States (id. § 50), and UNESCO contracting states (id. § 52) will have the right to retrieve national cultural heritage that was exported unlawfully.

Reactions to the Legislation

The initial draft, which was published in 2015, was the subject of controversy and was modified several times during the legislative process. It passed the German Bundestag only after significant changes were introduced in the Committee on Cultural and Media Affairs. (German Bundestag, Kultur und Medien Ausschuss [Cultur and Media Committee], Änderungen am Kulturgutschutzgesetz [Amendments to the Act on Cultural Property] (June 22, 2016), Bundestag website.)

Gallery owners, collectors, and artists strongly opposed the draft, arguing that the law would have a harmful effect on the German art market. (Henri Neuendorf, Proposed Law Regulating Art Sales Would Destroy German Art Market Experts Say, ARTNETNEWS (July 10, 2015).) Art collectors even threatened to withdraw their works and goods from German institutions if the draft legislation came into effect. (Alexander Fröhlich, Hasso Plattner erwägt Umzug seiner Kunstsammlung in die USA [Hasso Plattner Contemplates Moving His Art Collection to the USA] , TAGESSPIEGEL (Aug. 1, 2015).)

Supporters of the Act emphasized the enhanced protection of cultural objects that are at risk from illegal trade. The International Council of Museums welcomed the German initiative, stating that “the increasing number of on-going conflicts that are putting cultural heritage at high risk around the world requires that we all take responsibility in safeguarding our common past and history against destruction, looting and illicit trafficking in cultural property.” (Press Release, The International Council of Museums (ICOM), Statement Concerning the Protection of Cultural Property and the Amendment of the Law in Germany (Sept. 9, 2015).)

Prepared by Felix Beulke, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist.