A Prowl Through the New German Cultural Property Protection Legislation.
| Author | Bennett-Schaar, Silvan |
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INTRODUCTION
In 2016, the German Parliament enacted a statute to reorganise the law concerning cultural heritage--the Act on the Protection of Cultural Property (Kulturgutschutzgesetz--KGSG). (1) Although one of the declared aims of the new Act was to create more legal certainty for anyone dealing in the area of cultural property, this new piece of legislation leaves art dealers, collectors and lawyers in Germany with more questions than answers. The consequences of the KGSG are, however, not limited to Germans active in the area. Any person who deals in this area with ties to Germany might be affected by the new KGSG and should therefore take its provisions into account. The following elaborations are intended to provide a guide for non-German members of the world of culture and arts who have or plan to have business relating to Germany.
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OVERVIEW OF THE KGSG'S MAIN CONTENT
The KGSG deals with four main subjects: firstly, it defines certain types of cultural property as National Cultural Property and organises its protection regime (chapter 2). Secondly, it lays down rules for the export of National Cultural Property and cultural assets the age and value of which exceed certain thresholds and rules for the import of cultural property (chapter 3). Thirdly, regulations are made for the placing of cultural property on the German market (chapter 4). Lastly, procedures are laid out for restitution of cultural property which was either imported or exported illegally both to and from Germany (chapters 5 and 6). As violating these statutory provisions can lead to prison sentences of up to ten years if done commercially or as part of a gang, and up to five years if not done in one of these forms, great attention should be paid to complying with the KGSG.
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NATIONAL CULTURAL PROPERTY AND EXPORTS
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Necessity for an Export Licence
When buying a piece of art in Germany, difficulties may arise when attempting to export the object, for example, to sell it on a market other than the German one or to a client living abroad. Section 21 et seq. of the KGSG require the exporter of National Cultural Property or cultural property which exceeds certain age and value thresholds to obtain an export licence. If such a licence is not issued and the cultural chattel is exported nonetheless, the exporter can be liable to up to five years' imprisonment. This will be so even in those cases where the exporter acts recklessly rather than intentionally with regard to the question of whether or not such a licence is needed, i.e. knowing of the possibility of a licence being needed and not obtaining one, accepting the fact that he or she might be breaking the law. In any event, not obtaining an export licence could cause great distress to an art dealer, as he may be prevented from honouring an agreement to sell the piece of art to a client abroad. When sold in Germany, a piece of art which cannot be exported will be worth substantially less (ca. 30-50 per cent). (2)
To properly assess these risks, the concept of National Cultural Property must be understood. The term Cultural Property within the meaning of the Act refers to personal chattels, i.e. tangible and movable objects, or collections thereof which are of special artistic, historical or archaeological value or belong to other areas of cultural heritage. (3) The KGSG essentially places two different types of such cultural property under special protection: firstly, cultural property which is in a public museum or similar institution, a museum or similar institution mainly funded by the State or which is part of a collection belonging to the State. Secondly, cultural property which is listed in a register of nationally valuable cultural property.
The second group is especially important for art dealers and collectors, as it can also include objects in private ownership. In order to be listed in such a register, the cultural asset must be particularly significant for the cultural heritage of Germany so that its removal would be a significant loss for Germany's cultural heritage and keeping the object in Germany is of outstanding cultural public interest. (4) However, these prerequisites for the listing of a chattel in such a register are extremely vague and provide little guidance for individual art dealers or collectors. It is to be hoped that over the course of the coming years the practice of the authorities for listing such cultural property will bring more clarity. The objects which have been placed under protection by the German federal states can be found on the German website for culture protection (5) and can be used to give a certain comparative guidance. The threshold for listing is rather high and comparatively few chattels have been listed as National Cultural Property. Nonetheless, a certain risk exists and once an object has been put on such a list, it is very difficult to appeal against the decision before a court. Damaging National Cultural...
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