by Ursula Kampmann
translated by Annika Backe
October 8, 2015 – On September 14, 2015, the Commissioner of the Federal Government for Culture and Media presented the third draft of the amendment of the Law on the Protection of Cultural Heritage. In this article, we summarize the most important changes, on the basis of what lawyer Joachim Walser has stated in his legal opinion which we publish as German news of its own. In a nutshell, in regards to coins, the law was even tightened.
Definitions
The crucial aspect of this law is the definitions. At least, we find a new definition for “archaeological cultural heritage” which is now specified as cultural heritage (formerly objects), no longer only excavated from the ground but likewise found.
The definition of cultural heritage was likewise enlarged in that now any movable thing or aggregate of things “of artistic, historical or archaeological value or belonging to other cultural heritage categories, particularly of paleontological, ethnographical, numismatic or scientific value” is classified as such.
Likewise important to note is the definition of “putting cultural heritage on the market” because its repercussions will now affect the collector much more seriously. Now applying to a “free submission and transfer” of cultural heritage as well, a collector might be prosecuted if he donates illegally acquired coins to a museum.
Internet portal
Two sections of the second draft announced a comprehensive internet portal, to be established and operated by the supreme Federal authority, whose content was to be regulated by a legal decree. Now, in contrast, the section on this source of information has been reduced to a mere three lines, which state that the supreme Federal authority in charge of Culture and Media is to establish and operate a “central internet portal on the Protection of Cultural Heritage” which aims at “informing the public and providing transparency in regards to the Protection of Cultural Heritage”.
Export
As a general rule, export will become more difficult. It is no longer possible to export anything that was on Federal territory the date the law entered into force but only those items which “are shown to lawfully are, or have been, on Federal territory”.
When applying for an export license, a value threshold of 0 euros is valid for archaeological objects at least 100 years old, 100,000 euros for other antiques at least 100 years old (EU), 50,000 euros (third party state), and 100,000 euros for collections without age restrictions.
Import
The third draft has likewise tightened the ban on imports. Now, it will be considered reason enough when any other state classifies the relevant item as national heritage; the item no longer has to be of a special artistic, historical or archaeological value.
Upon import, proper documents have to be presented confirming the item’s lawful export from its former country of origin given that there was an obligation of an export authorization at the time when the item left its country of origin.
If no initial country of origin can be confirmed, and if an import would impinge on the export provisions any import is considered illegal.
It is the duty of the importer to check the legal situation.
Financial compensation
As a matter of fact, section 38 marks an improvement in comparison to the second draft bill. If an owner of a cultural good, that is planned to be repatriated, can prove that he has exercised due diligence, he receives a financial compensation, no longer according to the good’s purchase price but its current market value. Naturally, this does not apply in cases where the owner, in regards to the cultural heritage, has shown recklessness which has contributed to the breach of law.
Due diligence procedures
Nothing has changed in this section; especially not the specifications of the value threshold. A value threshold of 0 continues to apply to every object itemized in one of the ICOM Red Lists. For any archaeological heritage, the value threshold is set at 100 euros, unless full documentation of its provenance covering the last 20 years can be provided whereupon a limit of 2,500 euros applies, as is the case for cultural heritage in general.
The due diligence procedures have been modified in that a dealer, in cases where a buyer insists on paying cash, is no longer obliged to assume that the cultural heritage has been stolen in the first place. Legislation now accepts cash payments up to 5,000 euros.
How this legislation actually thinks about the market participants, however, becomes apparent in section 41.2.3. While close attention has been recommended “when a particularly valuable cultural good is intended to be sold by any private party without expert advice“, now the private collector is under general suspicion: the fact alone that precious cultural heritage is sold by a private party ought to tell “anybody with commonsense” that there is something strange going on.
Obligation to keep records
As a consequence of the objection of the auction houses, the legal text no longer entails the obligation for dealers to provide prospective buyers with information about an item‘s exact provenance – which, however, they are obliged to reveal the moment the very item becomes subject to proceedings.
Repatriation
By a look at the stipulations regarding the repatriation of cultural heritage, it becomes apparent that this law does not pursue the interests of the German citizens, but rather constitutes a political means to improve the image of Germany in foreign countries. The relevant regulations were tightened as well. The wording no longer comprises the restriction to national cultural heritage of artistic, historical or archaeological value. The claim to a cultural good is rather based on the legal provisions of the state that wants it repatriated.
To ensure that nothing can go wrong, it is no longer the authority of the various federal states that is in charge for the repatriation but the supreme Federal authority responsible for Culture and Media or the Foreign Office, which should be contacted through diplomatic channels.
Penalties
Whosoever imports or exports cultural heritage or puts it on the market unlawfully, may – and this constitutes a new and improved regulation – face not only up to five years in prison but can likewise be sentenced to a financial penalty. The penalty may be between one and ten years in prison in case the convict acts for gain or as a member of a gang of criminals.
If a dealer acts recklessly, he may be sentenced to a financial penalty or up to three years in prison.
If you do not want to see this law entered into force, please sign our petition on
https://www.openpetition.de/petition/online/fuer-den-erhalt-des-privaten-sammelns
Please be aware that the author of this article, Dr Ursula Kampmann, is no legal expert. Therefore, we decline all legal responsibilities for the content of this article.
You can find a summary of the first draft updating the legislation on the Protection of Cultural Heritage here.
We would like to encourage you to see for yourself and read the wording of the draft bill. Of course, it is written in German and can be downloaded from the internet.
The legal opinion written by lawyer Joachim Walser (in German) can be found here.
And you can find the German Numismatic Society’s reaction (in German) to the ministerial draft here.