Restrictive German Cultural Property Law Now In English

The German Federal Ministry of Justice and Consumer Protection (Bundesministerium der Justiz und fur Verbraucherschutz) has issued* an English translation of the Cultural Property Protection Act of 31 July 2016**.

A 400-page practice-guidebook explaining how to interpret the law has not been translated. There is, however, no good news anywhere for traders or collectors of anything ancient, except possibly coins (“if they are of no relevant informational value to archaeology”) – not even for antiquarian books or manuscripts.

Readers should refer in every case to the full, original, linked text and should not depend upon the brief summary below.

On July 9, 2016, this website summarized:

“In order to be lawfully exported from Germany, artworks, depending on age and value, must pass scrutiny by a committee to be set up in each German federated state in order to receive an export permit. Paintings older than 50 years and valued over 150,000 euros [now about $175,000] will require a permit in order to be sold outside of the European Union. Artworks older than 70 years valued at 300,000 euros or more will need an export permit to be sold outside of the EU. Artworks of “national importance” will not be granted permanent export permits and can only be sold inside Germany. The criteria for categorizing artworks as of “national importance” remains undefined. On June 23, 2016, DW said the government had provided an initial and unhelpful definition: “The label applies to works that “bear identity for Germany’s culture” and whose removal would cause a “significant loss.”

Antiquities and archeological items receive the harshest treatment. The new law is widely expected to end the trade in antique Asian and ancient works of art in Germany. A permit for export is required for any archaeological object, regardless of value. Importation is only possible with an export license from the country of origin. Ancient items can only be sold with an export license from the country of origin – and such export licenses almost never exist.”

Art of national significance will be tracked and documented, and cultural authorities must be informed of changes of ownership and location. In general, cultural property of national significance must be registered with the name and address of the owner and the possessor, if different, the location of the cultural property, and a photograph. Depending upon the value threshold for items of different categories, starting with a zero value for ancient art (pursuant to COUNCIL REGULATION (EC) No 116/2009 of 18 December 2008 on the export of cultural goods), the free movement of cultural property will be severely restricted. In the event of an investigation, a seizure, or a claim by another nation, the cost of executing the law will fall on the owner of the cultural property (Section 68).

Criminal violations of export regulations are subject to imprisonment not exceeding five years or a fine, civil violations of administrative requirements to register cultural objects are subject to fines of fine of up to one hundred thousand euros (Chapter 9, Sections 83-91).

Arts professionals including eleven former directors of German museums strongly objected to the law and to the exodus of important German art prior to the law’s enactment, calling the law a disaster for the future of German museums. Archaeologists across the EU have generally expressed support for the law’s virtual elimination of the trade in ancient art in Germany.

Sections 41 and 42 show the extraordinary steps required to market cultural property of any kind:

Section 41
General due diligence requirements

(1) Anyone who places cultural property on the market shall be obliged to exercise due diligence in checking whether the cultural property

1. has been lost;
2. has been unlawfully imported; or
3. has been unlawfully excavated.

(2) The person placing cultural property on the market shall comply with the general requirements to exercise due diligence pursuant to subsection 1 if a reasonable person might assume that one of the offences referred to in subsection 1 has been committed. This assumption shall be made especially if, during the previous acquisition of the cultural property to be placed on the market,

1. an extremely low price was demanded without further explanation; or
2. the seller demanded cash payment for a purchase price exceeding €5,000.

(3) Exercising due diligence also includes verifying relevant information that can be obtained with reasonable effort or carrying out any other examination that a reasonable person would carry out under similar circumstances related to the placing on the market.

Section 42
Due diligence requirements related to the placing on the market for commercial reasons

(1) Anyone who places cultural property on the market in conducting his business shall, in addition to the obligations referred to in Section 41, be obliged

1. to establish the name and address of the alienor, deliverer, acquirer or ordering party;
2. to provide a description and an illustration that can be used to establish the identity of the cultural property;
3. to examine the provenance of the cultural property;
4. to examine documents proving the lawful import and export;
5. to examine bans and restrictions regarding import, export and trade;
6. to examine whether the cultural property is registered in publicly accessible registers and databases; and
7. to obtain a written or electronically transmitted declaration of the deliverer or alienor stating that he or she is authorized to have the cultural property at his disposal.

The obligations pursuant to no. 2 of the first sentence shall not affect copyright rules. The obligations pursuant to no. 3 through 6 of the first sentence shall be met in compliance with the reasonable effort and the economic reasonableness, in particular.

(2) The additional due diligence requirements referred to in subsection 1 shall not apply

1. to commercial book trade excluding the antiquarian market; or
2. to commercial trade in visual and audio media.

(3) Furthermore, the additional due diligence requirements referred to in subsection 1 shall not apply to cultural property

1. that does not constitute archaeological cultural property and
2. which has a financial value of no more than €2,500.

Coins shall not be considered archaeological cultural property within the meaning of no. 1 of the first sentence if a large number of these coins exist and if they are of no relevant informational value to archaeology. The relevant financial value shall be the purchase price or, in other cases, a justified domestic estimated value.

Claims for return by any member state of the European Union are based on the date of export (after 1992) and the member state’s domestic legislation.

Section 50
Claims for return by member states

At the request of a member state, cultural property shall be returned if

1. it was removed from the sovereign territory of a member state after 31 December 1992 in violation of this member state’s legislation, and
2. on the basis of national legislation or administrative procedures, it has been classified or defined by the requesting member state, prior to or after its removal, as national cultural property of artistic, historical or archaeological value within the meaning of Article 36 of the Treaty on the Functioning of the European Union.

Claims for return by nation states that are signatories to UNESCO are limited if there is proof of export before April 26, 2007:

Section 52
Claims for return by states parties

(1) At the request of a state party, cultural property shall be returned if it

1. belongs to one of the categories referred to in Article 1 of the UNESCO Convention;
2. was removed from the sovereign territory of this state party after 26 April 2007 in violation of this state’s legislation;
3. has been classified or declared, prior to its export from the requesting state party, as being significant pursuant to Article 1 of the UNESCO Convention or as being inalienable within the meaning of Article 13 (d) of the UNESCO Convention; and
4. in terms of its provenance, is to be assigned to the requesting state party, especially if it belongs to the collection of an institution located in the territory of the state party or if an agreement pursuant to Section 60 has been reached.

(2) If it cannot be clarified whether the cultural property was removed after 26 April 2007, the cultural property shall be assumed to have been removed from the sovereign territory of the state party after this date unless proven otherwise. This assumption can be refuted only if it is proven that the cultural property was already located in the federal territory, in the single market or in a third country prior to this date. Pursuant to Section 27 (1) of the Administrative Procedure Act [Verwaltungsverfahrensgesetz] and pursuant to the administrative procedure acts of the Länder, it shall be permissible to make an affirmation in place of an oath to provide evidence pursuant to the second sentence. The authorities referred to in Section 61 (1) no. 7 and Section 62 (2) shall be responsible for administering such an affirmation within the context of the administrative mediation procedure.

(3) If it is proven that the cultural property was located in the federal territory or in the single market prior to 6 August 2016, then, by derogation from subsection 1, Section 6 (2) and Section 10 of the Act on the Return of Cultural Objects [Kulturgüterrückgabegesetz] of 18 May 2007 (Federal Law Gazette I, p. 757, 2547) in the version applicable until 5 August 2016 shall apply in terms of the state party’s right to claim return and in terms of compensation, respectively.

Claims for return pursuant to the Hague Convention are post-1967:

Section 53
Claim for return pursuant to the Hague Convention

(1) Cultural property pursuant to Chapter I Article 1 of the Hague Convention which has been imported in contravention of Section 28 no. 3 due to an armed conflict shall be returned to the competent authority of the territory from which it came pursuant to Part I no. 3 of the Protocol to the Hague Convention after the end of the armed conflict if

1. it was removed after 11 November 1967, and
2. the competent authority of the territory from which it came requests the return.

(2) Cultural property which has been deposed within the meaning of Part II no. 5 of the Protocol to the Hague Convention shall be returned after the end of the armed conflict; the requirements referred to in subsection 1 nos. 1 and 2 do not have to be met in this case.

The full translated English text of the Cultural Property Protection Act of 31 July 2016 is linked here.

The English text of COUNCIL REGULATION (EC) No 116/2009 of 18 December 2008 on the export of cultural goods (and referenced within the German law) is linked here.

* We express our thanks to the International Association of Dealers in Ancient Art (IADAA) for alerting us to the publication.

** Federal Law Gazette [BGBl.] Part I p. 1914.