Art Law Report

Backwards, Not Forwards: German Cultural Ministry Submits Revised Cultural Heritage Protection Law

Posted by Nicholas O'Donnell on September 21, 2015 at 6:50 AM

After two months of scathing criticism, the German Ministry of Culture has submitted a watered-down, but still problematic, revision to its Cultural Heritage Protection Law. Back in July, Minister of Culture Monika Grütters announced the initial proposal to amend Germany’s law, or Kulturgutschutzgesetz. The revision, however, is optical at best, and seems targeted only to soften criticism while still taking a regressive view of cultural property that is more at home in the 18th century than the 21st. It will probably pass, to the detriment of forward thinking art market players who will move their trade elsewhere.

Germany, like most European countries, already has provisions under which a piece of property cannot leave the country without the Ministry’s permission. The July draft would have tightened that even further, and applied to objects as young as 50 years old and worth at least €150,000—and not necessarily only German works.

The response was unanimously critical. Art market players pointed to the risk they would take by bringing art into Germany. Even someone with clear title would risk plummeting value if the government declared its intention to restrict the object’s movement. And the idea that works by Andy Warhol might be declared German cultural patrimony raised more than a few eyebrows. Worse yet, German artists like Georg Baselitz and Gerhard Richter vocally objected to the law. Baselitz withdrew all his loaned work from German museums, and Richter intimated that he might follow suit.

Last week, the Ministry changed course, at least slightly and released a statement on September 15, 2015 to go along with the actual draft itself (both still available only in German, as far as I can tell). In the statement, the Ministry offers several explanations about the draft:

Approval Procedures for Export: the statement noted that under EU law, an export permit for “particularly high quality” cultural objects has been required since 1993 to any country outside the EU (e.g., Switzerland or the U.S.). The revision would add a requirement for a permit to other EU countries, for paintings older than 70 years and valued at more than €300,000.

The statement stressed the law’s inapplicability to contemporary work, and to any living artist (no doubt a nod to Richter and Baselitz).

The Ministry stressed that export permission would be granted “quickly” is there is no “suspicion” that the object is cultural property or has illicit ownership history.

Distilled to its essence, however, the new draft is a difference of only 20 years and roughly $200,000 in value. The attention in the statement devoted to attempting to analogize the current draft to other European countries strikes a somewhat defensive tone. The actual draft law frames the “problem” as one of compliance with UNESCO and the fiscal obstacles of keeping cultural property in Germany.

As we noted back in July, all of this still begs the larger policy question: what purpose does this serve? There is no question that European countries have, and will continue, to support restrictive cultural property laws that would never advance to the discussion stage here in the United States. That is not to say the U.S. is right and the Europeans are long; the scope of the timeline of European cultural objects is geometrically longer (taking aside indigenous North American cultural objects, which are addressed in a different statutory framework, the Native American Graves Protection and Repatriation Act, or NAGPRA, most significant among them).

But what, exactly, is the principle behind drawing geographical lines around the cultural output of the first third of the twentieth century in particular? Given the way the maps of Europe looked in 1900, and then 1918, and then 1945, is this a wise effort? Art of the 19th and 20th century is not in need of some ancient protection; it has been moveable personal property in a sophisticated market throughout its existence. This may come down to a Transatlantic perspective difference, but identifying the export of art based on the ethnicity of its origin is just not the problem the law claims it is.

And finally, even if there good reasons for cultural export bans generally (of which, the reader can see, I’m unpersuaded), the opportunity for specific mischief is troubling. Readers will know that my clients are involved in litigation with the Stiftung Preussischer Kulturbesitz, an entity under control of the Ministry, which despite claiming ownership of the Guelph Treasure took the added step of declaring it cultural property supposedly subject to the ban in February. The Guelph Treasure is, from an art historical perspective, clearly part of the cultural heritage of Germany—as a matter of art analysis. But that declaration is meaningless; if the SPK were the rightful owner, the designation would oblige the ministry to ask permission for export from…itself. Of course the designation is not intended for that, it is intended to strip claimants from the chance to export, just as Austria did for years before laudably recognizing that kind of export ban as compensable looting.

Art is a commodity, whether we like it or not. Pretending otherwise is like advocating mercantilism in an era of trade. It belongs to the past.

Topics: cultural property, Guelph Treasure, Georg Baselitz, German Cultural Ministry, U.S., Restitution, UNESCO, Switzerland, Austria, Kulturgutschutzgesetz, Gerhard Richter, Museums, Andy Warhol, Monika Grütters, Cultural Heritage Protection, Native American Graves Protection and Repatriation, NAGPRA

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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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