Art Law Report

European Cultural Protection Laws and Export Licenses—the Atlantic Gulf Widens

Posted by Nicholas O'Donnell on July 10, 2015 at 7:37 AM

Germany has proposed a revision to its cultural protection legislation that would further restrict exports of objects more than 50 years old. While worries that it is the equivalent to state expropriation are overblown, it does indicate a mindset that is in many ways incompatible with the modern art market—even if it is only an effort to harmonize German and EU law. The struggles of Germany’s efforts to keep pace with other centers of art trade may only be compounded if this becomes law.

A concept foreign (literally) to many Americans, most European countries have cultural property laws. They restrict, to various degrees, the extent to which certain cultural objects can leave that country. Fundamentally, they reflect a policy that certain things innately belong in the place of their creation and significance, whether a Roman antiquity in Italy, or a Joshua Reynolds painting in England. Generally speaking, each country has a process for designating an object as cultural property of this sort, after which the responsible cultural ministry has the final say over whether it may leave the country. Particularly where the person proposing the export owns it and lives elsewhere, that permission will often be lacking. Exhibition loans are a different matter, since they are by definition temporary and not intended as a first step towards putting the object into a foreign marketplace.

From an American sensibility, these laws are entirely odd. With our primacy of private property and its attendant rights, most Americans would find the idea that the government could restrict to whom a painting could be sold as offensive, if not confiscatory. But there is no 5th Amendment in Germany forbidding regulatory takings, after all. And, to be fair, the scope and length of cultural history in European countries simply exists on a different scale. With that said, it also gives governments a tool for manipulation that they are often not shy about using to leverage or coerce what they want, including the effective destruction of a an object’s market value because of the restriction.

Germany’s minister of Culture, Monika Grütters, recently gave an interview with the Frankfurter Allgemeine Zeitung (in German) to address some of the concerns with the proposed revisions. Among her key points:

  • The proposed law would require export permission for any object with a value of €150,000 or more and which is more than 50 years old.
  • The law is intended primarily to bring Germany into alignment with other EU law.
  • The reason: “Because we actually want to hinder the possibility that cultural property which may be nationally significant can leave Germany without the knowledge of the responsible authorities and, as a result, need to be repurchased with significant tax money." (my translation).

Remarkably, when asked about the designation of a Warhol painting as German cultural property, Grütters extemporized a bit and suggested that the context would drive the result, in the view of experts. There is, she revealed, a 5-member board in each of the 16 Bundesländer.

The proposal underscores a key tension (not unique to Germany) between the desire to be a center of cultural history and a center of cultural commerce. The restrictive view on the former is fundamentally incompatible with the latter. Even if the reactions are a bit exaggerated (as is often the case), this proposal would put German in the camp of those looking backwards, not forwards.

Topics: Legislation, Frankfurter Allgemeine Zeitung, cultural property, Roman antiquity, Germany, Cultural Protection Laws, England, Joshua Reynolds, European, Rome, 5th Amendment, Bundesländer, Italy, Monika Grütters, regulatory taking

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About the Blog

The Art Law Report provides timely updates and commentary on legal issues in the museum and visual arts communities. It is authored by Nicholas M. O'Donnell, partner in our Art & Museum Law Practice.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

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