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Is the German Cultural Property Protection Act to be welcomed?

21 December 2015

From the January issue of Apollo: preview and subscribe here

Draft cultural property legislation in Germany has angered artists and the art trade. Does the act threaten to damage German cultural life, as many have argued, or is it necessary for the safeguarding of the country’s heritage?

Galerie Günter Puhze

Every measure to protect cultural heritage and safeguard our common past and history for future generations is to be welcomed, as long as it serves its purpose to protect and enrich cultural life. The German Cultural Property Protection Act, however, has achieved the opposite, before it has even been passed. It’s sad to see the beginning of what has been termed the Grütters-Effekt: loaned artworks have been pulled from major museums and rushed abroad; several gallerists have either left Germany or established their headquarters in London, Paris, or Zurich; artworks with an estimated value of €1 billion have been moved out of the country. The law looks set to damage collecting and the art and auction trade, with far-reaching implications for the German art world and cultural life.

The draft bill states that privately owned artworks of ‘national importance’ can no longer be granted a permanent export permit and hence can only be sold within Germany. The fear of private collectors is very visible. Max Beckmann paintings have been withdrawn from the Leipzig Museum of Fine Arts; August Macke works from the Kunstmuseum in Bonn; and instead of an on-loan Caspar David Friedrich, visitors at the Neue Pinakothek Munich have seen an empty space.

Collectors have been left in the dark as to whether their beloved pieces will be listed by an expert body in the near future. The revised draft, published in September last year, still fails to define how experts are to determine whether a cultural good is to be classified as ‘national cultural heritage’. Prof. Monika Grütters, Minister of State for Culture, has been quick to try to reassure worried parties, saying that ‘very few unique works are crucial for the cultural identity of our nation and qualify as being of national importance’. Why then such a far-reaching bureaucratic law, rather than a pre-emption right for national institutions on these ‘few unique works’ as is practice in other European countries such as France?

It’s not only the very visible white walls that should cause public concern. There are also thousands of citizens who by collecting or inheriting collections of objects such as stamps, ceramics, books, furniture, vintage cars, paintings and sculptures could be incriminated. If the artefacts are over 70 years old, the law will impose due diligence guidelines for proof of provenance on certain objects retroactively. Under the moral guise of protecting cultural heritage for the greater good of the nation the rule of law is breached by the retrospective effect of this act.

The same can be said about the art trade, which for centuries has played an essential role in the promotion of the value – not solely monetary, as Prof. Grütters recently claimed – and the existence of art and art practices in a cultured society. The Cultural Property Protection Act, however, is set to burden the German art market with the most restrictive and bureaucratic legal framework in Europe. According to legal experts the bill imposes a disguised restriction on the free movement of goods between EU Member States, breaching EU law, namely TFEU Article 36.

The German art and auction trade will be severely disadvantaged in the face of international competition. It seems a mockery that the draft legislation states the intention of the law is to ‘strengthen the art business in Germany’. In another statement, the minister has attempted to justify the law as a means of preventing illegally excavated artefacts from crisis or civil war areas being trafficked and sold in Germany. However, an effective EU embargo on the trade in cultural goods from Syria and Iraq has been in place since the beginning of these conflicts.

This act is flawed on multiple levels: it lacks concise legal definitions; its retrospective effect is a serious breach of the rule of law; it is against one of the founding principles of the European Union, the internal market; and it will create considerable red tape.

Whether it is due to incompetence, cultural nationalism or a hidden agenda to undermine private ownership of art and art dealers, if this draft bill is passed in its current version the German art world will look as bleak as those white walls in the future.

Galerie Günter Puhze was founded in Freiburg by Günter Puhze in 1975

Michael Henker

In May 2014 the European Parliament and the European Council passed Guideline 2014/60/EU on the restitution of illicit exported cultural property of member states. It was stated that the provisions of this guideline should be incorporated into national legislation of the member states by 2016. In Germany it is always highly complicated for the federal government to install laws or regulations concerning cultural topics, since that field is reserved to the legislation of the 16 member states (Länder) of the Bundesrepublik. For that reason there is no federal ministry of culture but ‘only’ a Federal Government Commissioner for Culture and the Media (BKM), while each member state has a Ministry of Culture.

Still, provisions were made for the protetion of cultural property in Germany by the
‘Kulturgutschutzgesetz’(Cultural Property Protection Act; KGSG) of 1955. Through it the then 11 Länder were commanded to install individual registers of cultural property to prevent the export and loss of important cultural property from Germany. In these registers some 2,600 items have been listed thus far. After the reunification of Germany it was necessary to revise and adopt the 1955 law, which led to a new version in 1999 and finally to the Law of Restitution of Cultural Goods of 2007. It was only through this that Germany adopted the 1970 UNESCO Convention ‘on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property’.

Finally, in 2013 the federal government gave a report on the state of the protection of cultural property in Germany, stating the precise goal of a new version of the KGSG in the Memorandum of Understanding between the CDU/CSU and the SPD – the political parties that form the present coalition government in Germany.

Germany clearly needed a new Cultural Property Protection Act. In summer 2014, a first draft of the new KGSG was passed on to museums associations, cultural institutions, art dealers and other professionals for inspection. This resulted in a new draft of July 2015, which unfortunately was leaked to the media in an unauthorised version, leading to criticism and international debate by art-dealer associations, collectors, artists and museum professionals. In consequence, the online publication of an authorised, updated draft was issued by the BKM in September 2015 inviting further public consultation.

The International Council of Museums (ICOM) and ICOM Germany had published a joint statement concerning the amendment of the KGSG at the beginning of August, expressing general support for the legislative initiative of BKM Monika Grütters. The law was apt to improve the protection of national cultural property in Germany; ensure the efficient implementation of new EU law as well as the 1970 UNESCO Convention; to strengthen museums; and to reinforce the application of the existing regional and international legal framework.

We stressed that it should be recognised as a responsibility and duty of every state to protect cultural heritage, and every endeavour in this regard should be welcomed and encouraged. The increasing number of current conflicts that are putting cultural heritage at high risk around the world require that we all take responsibility in safeguarding our common past and history against destruction, looting, and illicit trafficking in cultural property.

The revised draft of the KGSG was passed by the German cabinet in November 2015. It still has to be passed by the Bundesrat (Federal Council) and the Bundestag (Federal Parliament). German museums see their cause well represented, since the majority of the amendments they had introduced through ICOM Germany, the German Museum Association, and the Organisation of Regional Museums Associations have been incorporated and now constitute substantial parts of the new act.

What are the most relevant points of the new KGSG for public museums and collections? Three older laws are now embraced by a new cohesive one; the illicit import and traffic of antiques is prohibited; cultural property of unique national importance is protected against external transfer; the registers of cultural property within the Länder continue; export permits will in future also include EU states; for international loan-management, museums and collections will be granted a five-year general concession; all artefacts in public museums and collections are put under the general protection of national cultural property; for the import of cultural property into Germany an export permit from the country of origin has to be obtained; provenance has to be checked and documented with every domestic sale; and  a guarantee for the return of illicit cultural goods to the countries of origin is given.

The appropriateness of the new law will have to be tested in practice. It will be evaluated, and if necessary it will have to be revised, amended, and adopted to changing national and international legal standards in the future. But for the time being, let’s go ahead with it.

Michael Henker is the President of ICOM Germany

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