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Despite Universal Criticism, German Cabinet Approves Stricter Cultural Heritage Law

Posted by Nicholas O'Donnell on November 16, 2015 at 5:40 AM

The German federal cabinet has approved a revision to its cultural heritage protection law notwithstanding overwhelming opposition by essentially everyone who commented, putting the draft on the fast track to legislative enactment next year.

This law remains a solution in search of a problem at best. At worst, it is used to lay claim to disputed objects like the Welfenschatz as a litigation tactic to undermine the value of looted cultural property to claimants. It takes a regressive view of cultural objects that makes no sense in the 21st century. Sadly, the primary victim will be the commercial art market in Germany, which will become a lesser option for moveable property because the risk will be outsized there relative to other countries. That part of the German economy does not seem to hold enough, or any, interest for policy makers right now.

Several months ago Minister of Culture Monika Grütters announced an initial proposal to amend Germany’s cultural property protection law, or Kulturgutschutzgesetz. Like many European countries, Germany has provisions under which a piece of property cannot leave the country without the Ministry’s permission. The initial proposal in July 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 work. After unanimous criticism, the Ministry of Culture re-submitted a somewhat watered-down version in September. 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. When the revised draft was released, the Ministry stressed the law’s inapplicability to contemporary work, and to any living artist (no doubt a nod to Gerhard Richter and Georg Baselitz, both of whom had declared their intention to take their work out of their home country if the law progressed).

On November 4, 2015, the German federal cabinet approved the draft. “With the amendment of the cultural protection legislation we are adopting one of the most important pieces of cultural politics of this legislature," Culture Minister Monika Grütters announced. According to statement on the federal government website (my translation): "Depending on the course of parliamentary proceedings, the law should take effect in the first half of 2016."

Similar reaction followed as with the prior drafts. Art dealer Michael Werner told Artforum:

It can only be about control…they want to know, despite contrary statements, what private citizens have hanging in their living rooms. They want to make money, as they did in 2014 with the ‘normalization’ of the VAT rate on works of art.

It is hard to disagree with Werner. The proposal seems likely to become law next year. As Germany’s restitution policy is hurtling in the wrong direction, it is an odd commitment of effort and resources.

Topics: cultural property, VAT, Georg Baselitz, Germany, Minister of Culture Monika Grütters, EU, Artforum, Kulturgutschutzgesetz, Gerhard Richter, cultural heritage protection law, Michael Werner, Welfenschatz

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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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