Tuesday, August 11, 2015

Germany's Answer for Cultural Property Protection - Summer 2015

There seems to be no limit today to US Government interference in our daily affairs. One could certainly argue that the United Kingdom and France have provided us with valuable guidance in what not to do in immigration. Now The Committee for Cultural Policy Newsletter (which you need to subscribe to) offers a glimpse at Germany's new Cultural Property protection Act. We now not only routinely have complete disregard for personal property rights but we now have countries  in effect enforcing the laws of other countries without due process. Historically it has been demonstrated that freedoms not protected and valued are often lost.

German Law: Disaster for Collectors of Antiques and Ancient Art

July 25, 2015.  Germany’s proposed Cultural Property Protection Act, heralded by archaeological hardliners at London’s April 14, 2015 Culture in Crisis Conference, now appears even more draconian in effect than previously thought. The draft text of the new German law was shared early on with archaeological insiders but had virtually no input from the collector or art dealer communities. The text of the new law began to be leaked to the press in early July; the 47 page draft law (with 100 pages of comments), has yet to be officially released.*
The law gives Germany’s government the right to prohibit export of any artworks that are deemed cultural treasures (see German Law: Bad for Collectors of Modern Art).  Committees in each of Germany’s federated states determine whether export will be allowed.  What is less known about the law is that it severely restricts import of ancient and antique works, places the burden of proof of legal ownership on owners and art dealers, requires very extensive documentation for import, export, and sale, and grants access to private homes and collections by government agents with authority to seize art objects “where there is a reasonable suspicion of a criminal offense.” In contrast to the strict rules for importation, repatriation of cultural objects to a foreign country requires only a statement by the claiming country, not proof that an object was illegally removed.
Ursula Kampmann, writing in Coins Weekly, outlines the key provisions of the draft law:
Section 29 of the draft law states that the import of cultural objects is prohibited if the objects are classified or defined by UNESCO Members States or EU states as “national treasures possessing artistic, historic or archaeological value” and if the objects were transferred from the foreign state in contravention of its laws. Ms. Kampmann notes that these provisions essentially make foreign legislation the criteria for German government action. (It is important to remember that art source country legislation often classifies every single artifact as a national treasure and places blanket prohibitions on export.)
Section 33 of the draft law states that, “The import of cultural property is illegal if:
  1. the cultural property has been transferred out of a country in contravention of the state’s legislation on the Protection of Cultural Heritage after December 31, 1992, from another Member State’s [EU State] territory or after April 26, 2007, from a State Party [non-EU State that has ratified the UNESCO Convention] or if
  2.  the import is a breach of the legislation of the Federal Republic of Germany.”
The law places the entire burden of proof of an object’s lawful ownership on the importer or owner.
The law assumes recent import into Germany unless proved otherwise. Under Section 51, the law assumes that cultural objects shall be regarded as having been transferred to German Federal Territory after the law came into force if it cannot be shown that the item has been in Germany, on the domestic market or in a third country prior to April 26, 2007. Section 34 grants authorities the right to seize cultural objects where there is a reasonable suspicion of a criminal offense. Section 39 provides that the cost of storage of the object by the government is paid by the person from whom it is seized.
Collectors and art dealers fear that the draft law effectively enables expropriation of private collections by controlling their transfer. The government must be informed of the art’s location at all times and of any changes of ownership. The law overrides “the basic right of inviolability of the home,” giving government agents the right to access private homes to ensure that cultural objects have not been secretly sold. The details of controls will not be available until after passage of the law, according to the draft. The draft authorizes the Culture and Media Commissioner of the German Federal Government to prepare the actual regulations at a later date, to be voted on by the Federal Council.
Art dealers trading in cultural objects must follow very detailed “due diligence” practices. If the value of the cultural heritage is €2,500, (€100 or more for “archaeological heritage” unless the dealer has a record going back 20 years) the dealer must detail and provide the name and the address of the vendor, a description and a photographic image, investigate the provenance of the cultural heritage, research the records of prior import and export, identify restrictions of import and export (presumably from source countries and intermediate transferring countries), obtain a declaration by the consignor or seller that he is authorized to dispose of the goods, and determine whether or not the object is registered in publicly accessible lists and databases. There is no minimum valuation threshhold if the object is of a type listed in the very generalized ICOM Red Lists.
These due diligence requirements would cost more to complete than the value of many antiquities, thereby ending the market in smaller, less valuable items including most coins, glassware, ceramics and minor stone or metal objects.
Section 60.3 describes the procedures for repatriation to a claiming country.  These require only a description of the cultural object, a statement that it is considered an object of national cultural heritage by the requesting state, and a statement that the cultural heritage was transferred from its territory illegally. No documentation of the illegal transfer is required. An owner would receive compensation only if he performed the requisite due diligence in acquisition of the object, for example, by demonstrating 20 years of known provenance . Compensation could be given to an owner only if he actually actually performed the due diligence – and would be his purchase price only.
Ms. Kampmann points out that there is no provision for determining whether an earlier, lawful transfer, for example through purchase of an antique or ancient item at a Swiss or French auction, would provide a German owner with protection as a lawful purchaser.
It appears that much of the rationale for the German legislation is founded on spurious claims similar to those raised in the US regarding the need for draconian legislation affecting private and museum ownership as well as trade: the claim that looting of art is a major funding source for terrorism. The preamble to the German draft law also recites the unproven claim that enactment of severe import restrictions on antiquities would not only “combat traffic in illicit artifacts in Germany” but also curb the activities of terrorist organizations said to be “more and more financed by illegal excavations at archaeological sites.”
An international petition to support the right to privately collect antiques, coins, and ancient art is being circulated on the Internet. See: https://www.openpetition.de/petition/online/fuer-den-erhalt-des-privaten-sammelns
*This post is largely drawn from Ursula Kampmann’s article, Ministerial draft updating the legislation on the Protection of Cultural Heritage, translated by Annika Backe, which appeared in Coins Weekly on July 16, 2015.
Image: Wikimedia Commons, Bestandteil der Bemalung eines Raumes einer römischen Villa am Fuße des Vesuvs, vermutlich in Boscoreale. Höhe der Figur ca. 23 cm. Landesmuseum Württemberg. https://commons.wikimedia.org/wiki/File:Harfenspielerin_R%C3%B6misches_Fresko.jpg

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