The new Cultural Property Protection Act – An interview with Ansgar Heveling

July 14, 2016 – On June 23, 2016, the German Bundestag (Federal Government) decided to adopt the new Cultural Property Protection Act, as proposed by the Committee on Culture and Media Affairs. On July 8, 2016, the Bundesrat (Federal Council) approved. Now, as the last step, the Federal President has to review its constitutionality in order for it to become law.

We asked Ansgar Heveling, Chairman of the CDU/CSU parliamentary faction of the Committee on Culture and Media Affairs, a few questions about the impact of the new legislation.

CW: Mr. Heveling, the new law will come into force the day after its proclamation. When will this approximately be?

Ansgar Heveling, Chairman of the CDU/CSU parliamentary faction of the Committee on Culture and Media Affairs, answered our questions about the exact content of the new Cultural Property Protection Act. Photo © German Bundestag / Thomas Imo, photonek.net.

Ansgar Heveling: Right now, the legislation is on its way to the Federal President. He will formally review its constitutionality. It then becomes law a day after it was proclaimed in the Bundesgesetzblatt. Then it is public. From then on, the law is in effect.

CW: A survey from July 2014 states that approximately every third German collects. The new Cultural Property Protection Act includes 91 paragraphs, of which even lawyers claim they are difficult to understand. What is it that you do on the part of the government to explain the correct behavior to the affected collectors and dealers?

Ansgar Heveling: During the legislative procedures one could already gather information on the key points on the website of the Ministry of Culture in a question and answer style. Thereby, the indeed complex matter is being explained. I expect that after the resolutions of the Bundestag and the Bundesrat the website will be updated to the effectively adopted regulation.

CW: And this is then legally enforceable?

Ansgar Heveling: The information reflects the legal situation and must correctly reflect it. Insofar, it is certainly legally binding.

CW: §4 demands the installation of an online portal, which documents the national and international legal basis of the legislation on the Protection of Cultural Heritage, in order to establish legal certainty. With the law taking effect, will this portal be available?

Ansgar Heveling: The portal will be built as fast as possible. I don’t know exactly when it will go online. But it was important to us, to regulate by law, that this portal will become the decisive source of information.

CW: Will it be reviewed, that this portal will be built as soon as possible?

Ansgar Heveling: With the endorsement of the law, it was commissioned to build this online portal. And I know that the Commissioner for Culture and Media has her own interest to publish it as soon as possible.

CW: In the newly adopted law “archaeological cultural heritage“ is defined as “movable objects or aggregated assets created or processed by man or which give information about human lives in the past, which were or are located in the ground or in a body of water or which, because of their overall circumstances, indicate that“. Therefore, fossils are excluded from the law, right?

Ansgar Heveling: Paleontological objects are now indeed excluded.

CW: The law newly defines the country of origin as “a member state or contracting state“, “in which the cultural heritage originated or which has such a close relationship to the cultural heritage, that, at the time of transfer from its sovereign territory, it was put under protection as a cultural heritage.” I can understand that when talking about an Italian Renaissance painting. But how can a collector find out the country of origin, for example, of a coin or a terracotta bowl, which were circulating in the whole of the Roman world?

Ansgar Heveling: It was obvious to us that there would be difficulties of differentiations, because changes occurred over the centuries. It took us a very long time to shape this definition the right way and we ultimately came back to the requirements of the international agreements. That it won’t be easy to evaluate certain points, I must admit.

CW: Let’s say, a collector wants to buy a Roman Imperial portrait from an American dealer. It is obvious that this Imperial portrait didn’t originate in the US. But from which country of origin does the collector now need documents in order to correctly import this object to Germany?

Ansgar Heveling: For the question of legal import, it first of all needs to be established, whether the object is listed as a national cultural heritage in a country at all. Only then I have to produce the appropriate documents. §30 states that proof only needs to be presented, when the affected cultural heritage is defined as national cultural heritage in the member or contract state.

CW: That means we are returning to the list principle?

Ansgar Heveling: No, it means that it must be defined as national cultural heritage in the country it comes from. That’s correct. Only then an extensive documentation for import has to be provided.

CW: And this includes, that this cultural heritage can be clearly identified through the list.

Ansgar Heveling: Exactly. It must of course be obvious, which cultural heritage we are talking about.

CW: During the debate about the legislation, several museum curators already demanded, that special collections should be put on the list as national valuable cultural heritage in order to secure them for museums. An example was the collection of the former Preussag AG. Do special collectors now have to fear that their collections, because of the initiative of a museum curator, will be listed as national heritage against their will?

Ansgar Heveling: How big the risk is, I cannot say, of course. There now is the possibility of listing, but for that it is necessary that it really is a nationally valuable cultural heritage, which is emblematic and which plays an extraordinary role for the national consciousness. But this would be the result of an examination by an expert committee.

CW: Let’s talk about these expert committees. The legislation calls upon associations and organizations to hand in proposals for the appointment of experts. How can I visualize that in practice? Who receives such proposals?

Ansgar Heveling: It will stay the same that the cultural sovereignty will be executed by the Federal States, which is why the appropriate expert committees will also stay within the Federal States. It is different from state to state where the State Cultural Administration is established, but they will set up these committees for sure.

CW: It is, therefore, an obligation of the associations?

Ansgar Heveling: That’s a question of how the individual Federal States are dealing with it. It’s subject to their sovereignty.

CW: The last version of the law included a change in regards to coins: “Coins are not classified as archaeological objects as required by Category 1 of Supplement I of Regulation (EU) No. 116/2009, if they exist in large quantities, if they do not serve archaeology with relevant and considerable findings and are not protected as an individual object by a member state.” What does that mean, practically speaking, for importing and exporting coins?

Ansgar Heveling: From very early on in the debate about the Cultural Property Protection Act, coin collectors and coin dealers came forward and articulated their concerns to the political authorities. We certainly were aware of that and would have liked to place an exception for coins in the beginning of the legislative text where the terminology is located. But that was difficult, because of systematical reasons. Which is why on two points an explicit exception was made: On the one hand in regards to export permit requirements, which do not apply to coins. On the other hand, that there is no additional due diligence in regards to the commercial placing of coins on the market. At this point, we have already integrated into the law what the jurisdiction of the Federal Fiscal Court had stipulated: The exclusion of coins as mass-produced goods. At least if they exist in large quantities and if they do not provide relevant and considerable information. Of course this is debatable. But because jurisdiction has introduced these terms, it seems to be a useful categorization to me. That’s why I assume that in the future the majority of coins will not be affected by the law.

CW: Many collectors are afraid for their objects, which they acquired according to the old law, without attending to the necessary documentation. Let’s talk about the retroactive effect of the new Cultural Property Protection Act in regards to objects already owned by collectors.

Ansgar Heveling: Here we have also made clarifying changes to the law. After all it is a matter of verifying lawfulness, that is, to show that a cultural heritage was rightfully located in Germany at the time of the commencement of the legislation. Originally, this was intended as burden of proof. Now we changed it to an inquisitorial system, which means that a court or state authority is obligated to examine the situation on their part. The burden of proof does not apply to the owner anymore. In case of doubt the state authority has to determine the contexts. From my view, this is a considerable relief for dealers and collectors and minimizes insecurities.

CW: Sure, because this was the big fear of collectors. The fear of having to produce documents, which they never had.

Ansgar Heveling: Just look at §29 No.1. What used to read “demonstrably lawfully located in Germany” now reads “lawfully located in Germany”. And this means, that the burden of proof does not lie with the owner or the holder.

CW: §89 stipulates, that the appropriate member of the government, responsible for Culture and Media Affairs, informs the German Federal Parliament and the Federal Council after 5 years about the implementation of the law. For the last evaluation, no associations of dealers and collectors were questioned. Can we assume, that this won’t be happening in five years?

Ansgar Heveling: I believe it’s in the interest of the Federal Parliament to learn about the effectiveness and difficulties about a law. For that, of course, information is needed, which is why I think the involved parties will be heard.
By the way, two evaluations are earmarked: The first after two years in regards to bureaucratic costs and the second after five years for a general evaluation.

CW: Department head of Culture, Günter Winands, has described the law in one of its hearings as a pedagogical law. Many understood this term as describing a situation where nobody can obey all rules of a law, which therefore creates a sort of legal vacuum for collectors and dealers. Do you agree?
 
Ansgar Heveling: Naturally, I don’t see it that way. Laws are not about pedagogical tips, they are about clarifying the legal position. All together, the Cultural Property Protection Act brings together three laws and is supplemented by new regulations. This is the first time a uniform law on the Protection of Cultural Heritage has been created. I think this is definitely a positive development. Just as positive, that for the first time the term nationally valuable cultural heritage is defined by legislation. This hasn’t existed until now.

CW: Mr. Heveling, are you a collector?

Ansgar Heveling: No, my current occupation doesn’t leave me enough time. But my great-uncle was a painter, who, in the early 20th century, belonged to the artist group “junges Rheinland“ (“young Rhineland“), and his paintings I do collect.

CW: So you do understand the psyche of collectors?

Ansgar Heveling: Absolutely, yes. And because of that I mentioned in my contribution at the Federal Parliament that there is always a tension between ownership and the interest of the State in regards to the protection of cultural heritage. That’s obvious and has to be balanced.

CW: Thank you so much for answering our questions.

The interview was conducted by Ursula Kampmann.

Here you can find Ansgar Heveling’s website.

There you can also find his detailed curriculum vitae.

Of course, there is a German Wikipedia entry about Mr. Heveling, which can also be read in Estonian and Russian.

And, of course, Ansgar Heveling can be found on Facebook.

CoinsWeekly has reported about the discussions in the Federal Parliament in regards to the new German Cultural Property Protection Act.

And here you can find the link to the final version of the new Cultural Property Protection Act.