Ministerial draft updating the legislation on the Protection of Cultural Heritage

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by Ursula Kampmann
translated by Annika Backe

Please, be aware that the translation of the quoted draft bill was not done by an authorized translator. This translation is for information purpose only and of no legal liability. We decline all legal responsibilities for it.

July 16, 2015 – In terms of propaganda, the amendment of the Law on the Protection of Cultural Property has been carefully prepared. The atrocities of the IS have been used to make John Doe believe that Germany needs this law to prevent it from becoming a hotspot of illicit trade. Yet something completely different is at the heart of it, as is now proved by the draft bill. It is mainly about the German state’s intention to bargain hunt its cultural heritage by preventing the owners from selling it outside the country.

In order to obscure the true intention, the preamble speaks about diplomatic imbroglios: “The Federal Government found that the Act on the Return of Cultural Objects of May 18, 2007, has led to considerable application problems and has affected the bilateral relationships between Germany and numerous other State Parties to the 1970 UNESCO Convention.” This is immediately followed up by remarks about the protection of the German cultural heritage against an exodus to foreign countries. Once again, a hackneyed terror cliché is trotted out: “This amendment not only aims at combating illicit traffic in cultural objects in Germany, but also at limiting ways of funding of terror organizations that are more and more financed by illegal excavations at archaeological sites as well as by the illicit trade in that cultural material.” It is not explicitly mentioned that this is a hitherto unproven assumption. The terror card always wins.

What is really at stake here becomes apparent when the costs are addressed: “The federal government and the states achieve cost savings of an unknown amount by the fact that, since an authorization is now required for exports of all cultural goods in the EU internal market, re-sales of national cultural goods in the international art market – for which up to tens of millions were needed in the past two years – will not be necessary only to a small extent in the future.” [The vague term in this sentence is probably a typical computer error: the author could not decide if re-sales will be necessary to a lesser extent or not at all.] There is likewise no mention of the fact that those millions of euros are withdrawn from the owners of the national cultural goods.

Anyhow, this is the reason why the owner of national cultural heritage, which has been registered in a list of cultural objects “by the supreme state authority”, will be exposed to the full force of the law. To what guidelines the registration is being made is not topic of the draft but specified by a legislative decree by the Federal Government member responsible, i.e. Mrs Grütters.

The moment the cultural object is registered, its owner is obliged to give a full account of the item’s unambiguous identification and its whereabouts to the supreme state authority. He is required to provide photographs at his own expense, to care for the object within economically reasonable bounds, and to inform the supreme state authority immediately about any change of residence, and, if he has sold the object, about its new owner.

To make sure that an owner does not secretly sell an item, the supreme state authority and authorized experts have access to flats and buildings where the cultural goods are held. “Insofar, the basic right of inviolability of the home (Article 13, Basic Law) … shall be restricted.”

The second section of the draft bill focuses on the export of all sorts of cultural property. This section does not contain much new information because – as stipulated in §24.2 – the details are dealt with at a later stage: “The member of the Federal Government responsible for Culture and the Media is authorized to specify the guidelines, pursuant to section 1 (2) according to category, value and age limits of the cultural objects, in a legislative decree that requires the consent of the Federal Council.” In other words: at a later stage, Monika Grütters will present a draft on which the Federal Council will then vote.
The main problem arises in the third section of this draft bill which addresses the import. §29 says: “The import of cultural objects is prohibited, if 1. classified or defined by Members States or State Parties as national treasures possessing artistic, historic or archaeological value and, in contravention of the laws of the country, having been transferred outside the country’s territory.”

This means that Germany forces its authorities to make foreign legislation, probably even retroactively, the yardstick of their actions.
Let us have a look at an example from every-day life. In the 1980s and 1990s, Switzerland used to be a hub for the trade in all sorts of cultural objects. Legislation used to be very liberal. Any object officially imported into Switzerland was legal when it was offered for sale in an auction and when no owner proved his ownership of the object within a specified period of time. But how to deal with, let us say, the bronze coins from Sicily that were smuggled outside the country by Italian suppliers in the 1980s and 1990s, in contravention of the Italian law, only to be officially imported into Switzerland and be sold in an auction afterwards. Does Italian law outrank Swiss law? Will the authorities that are concerned with the import receive a special training in terms of legal history in the future, rendering them competent to know for sure which law was in place in a given country of origin in a given year?

What other criteria apply for the import of cultural goods is left to the hands of Mrs Grütters, again.

What classifies as legal or illegal, respectively, is specified in section 4 of the draft bill. And there it is, in black and white, the reversal of the burden of proof. §32.3 stipulates that, after the commencement of the law, an import is assumed “if the date of exportation cannot be furnished or ascertained”. §33 further says: “The import of cultural property is illegal 1. if the cultural property has been transferred out of the country, in contravention of the state’s legislation on the Protection of Cultural Heritage a) after December 31, 1992, from another Member State’s [EU State] territory or, b), after April 26, 2007, from a State Party [non-EU State that has ratified the UNESCO Convention] or, 2., if the import is a breach of the legislation of the Federal Republic of Germany.”

What happens next is specified in §34: the authority responsible seizes the cultural heritage immediately where there is a reasonable suspicion of a criminal offence. By the way, it is not the state coffers that bear the costs but, as §39 stipulates, “the person that has been divested of the safekeeping.” From the draft bill I could not tell whether or not it makes any difference if the state was wrong to do that.

The price for cultural goods are likely to increase in the future while smaller items will disappear from the market entirely, the due diligence guidelines the dealers face in §42 being outright absurd.
The following needs to be done:
1. “Ascertain the name and the address of the vendor, the consigner, the buyer or the commissioner,
2. prepare a description and a photographic image suitable to ascertain the identity of the cultural heritage,
3. check into the provenance of the cultural heritage,
4. check into the records documenting the import and the export,
5. check into bans on and restrictions of import and export and check into the trade,
6. receive written or electronically sent declaration of the consigner or the vendor that he is authorized to dispose of the goods , and,
7. ascertain whether or not the cultural heritage is registered in publicly accessible lists and data bases.”
These due diligence guidelines are less strict if the value of the cultural heritage is less than €2,500 and for archaeological heritage if its value is less than €100 unless full documentation of the objects’ provenance covering the last 20 years is provided whereupon the above-mentioned value limit of €2,500 applies.
In other words: if a dealer acquires an extremely fine antoninianus of Gordianus III he not only has to document the vendor’s name and address. He also has to take a photograph of the item, examine the records confirming both the import and the export, check with the public databases whether or not the item is reported as stolen, and make the owner sign a written statement that he is the item’s genuine owner.

The value limits do not apply if a given object is mentioned in the ICOM Red Lists. This will become a problem for coins considering how improperly ICOM treats this kind of material. Syria is a telling example. Its coins are specified as follows: “Metal coins (gold, silver, bronze): Graeco-Hellenistic: With portraits of kings and queens (obverse), gods standing or sitting, surrounded by Greek inscriptions, animals and objects (reverse). Roman: With the emperor’s portrait (obverse) and a variety of motifs with Latin inscriptions, often the letters “SC” (reverse). Byzantine: With the emperor’s portrait (obverse), but with letters and/or Christian symbols (reverse). Islamic: With Arabic inscriptions on both sides.” To put it another way, this Red List alone renders any facilitation of due diligence impossible, with Celtic coins as well as Greek coins of Archaic and Classical times as the only exceptions.

If the dealer attempts to sell our Gordianus III antoninianus he has to provide the buyer with his entire documentation, hence where he had bought the item, when, for what price, from whom and where the item had been the previous two decades. He is obliged to keep the relevant records for thirty years.
Data protection and confidentiality belong to the past. §46 stipulates that, if the competent authority so requests, any information about a cultural object has to be disclosed.

The main paragraph of the final section again aims at a reversal of the burden of proof. §51 says that any cultural heritage shall be regarded as having been transferred to Federal Territory after the law came into force if it cannot be ascertained anymore whether or not the item has been on Federal Territory, on the domestic market or in a third country prior to April 26, 2007.

The requirements for a state that wants to reclaim its cultural heritage are very low, as §60.3 illustrates: “Return proceedings may only be initiated if the following documents are submitted with the application: 1. a proper description of the cultural heritage, 2. a statement confirming that it is a national cultural heritage under national legislation or administrative procedures of the requesting state, and, 3. a statement of the requesting state confirming that the cultural heritage has been transferred from its territory illegally.” Proof? What for?
The owner gets compensation only if he proves that he has proceeded with due diligence when acquiring the cultural heritage, thus if he is able to provide full documentation of the item’s provenance covering the last twenty years. Only the purchase price is refunded, not the present value of the item.

The draft legislation runs to 47 pages. The commentary is almost 100 pages in length. It’s not that bad, says the Federal Government on its website in a press release that has been published in response to a withering article in the German newspaper ‘Die Welt’. After all, the draft legislation “expressly stipulates that the states ensure that the legitimate interests of the trade as well as of private collectors” are taken into account. Funny, that seems a bit hard to believe.

But I am probably no different than Cornelius Tittel, writer of the above-mentioned article. The Federal Government published a press release with a comment on his contribution to the ongoing discussion, saying that his criticism was based “on misinterpretations, misunderstandings or ignorance, making a dispassionate debate on the amendment of the Protection of Cultural Heritage difficult”.

Dear reader, please allow for the possibility that I have misinterpreted and misunderstood the draft and that my knowledge of the Protection of Cultural Heritage is simply not as sound as Mrs Grütters’. Making the dispassionate debate difficult is the last thing I want to do…

You find the article written by Cornelius Tittel, with the title “Denn die Gesetzgeber wissen nicht, was sie tun“, here.

The Federal Government’s comment can be accessed under this link.

Unfortunately, until July 15, 2015, 14.30 CET as the deadline of this article, it has not been possible for the competent authority to put the ministerial draft on the internet for you to make your own verdict. Well, it was likewise not possible for that authority to publish the comments made by the parties concerned during the relevant hearing in April 2015. Why should it, for the law ensures that the legitimate interests of the trade and the collectors are taken into account…