Import regulations
The provisions of the German Act on the Protection of Cultural Property (Kulturgutschutzgesetz, KGSG) concerning the import of cultural property into Germany are based on requirements aimed at preventing the introduction into Germany of cultural property unlawfully exported from another country.
These provisions are based on the principle that cultural property that has been unlawfully removed from its country of origin cannot be lawfully imported into Germany. General import regulations of this kind did not exist before the entry into force of the Act on the Protection of Cultural Property. The applicable provisions of law were limited to the bans and restrictions on imports of Iraqi and Syrian cultural items under EU law and provisions in the field of species conservation.
No retroactive effect of import regulations
Binding provisions of constitutional and international law mean that the general regulations on imports of cultural property outlined in the Act on the Protection of Cultural Property apply only to imports that have occurred since the entry into force of the 2016 Act, and do not have retroactive effect. Cultural property located in Germany before this date is not subject to the import regulations of the Act on the Protection of Cultural Property, although the applicable due diligence requirements (Section 40 et seqq. KGSG) must be met if the cultural property is to be sold in Germany.
Details of the individual regulations
Import ban (Section 28 KGSG)
Section 28 KGSG explicitly bans imports in three different cases:
Cases in which cultural property that has been classified as national cultural property by an EU Member State or a signatory state to the 1970 UNESCO Convention has been exported from the territory of this latter in violation of its laws.
– Classification as national cultural property by a Member State or signatory state confers a special protection status on cultural property under the law of the relevant country of origin. Further information on the cultural property protected in the various countries of origin and the import regulations that exist, as well as contact details for the competent bodies in the countries of origin, can be found in the section of this website on Cultural property law abroad.
– In the case of EU Member States, the reference date as regards unlawful exports is not the date of accession to the EU, but 1 January 1993 in every instance, even if the relevant country acceded to the EU only at a later date. This reference date is stipulated by Directive 2014/60/EU on the return of cultural objects, which was in turn based on previous rules that dated back to 1992 (Directive 93/7/EEC) but that gained legal force for the first time on 1 January 1993. In the case of signatory states to the UNESCO Convention, the reference date is the date on which the UNESCO Convention gained binding force in the country of origin in question on the one hand, and in the Federal Republic of Germany on the other. The earliest possible reference date is therefore 26 April 2007, which is when the Convention entered into force in the Federal Republic of Germany. For all signatory states that acceded to the Convention at a later date, the Convention is deemed to have gained binding effect three months after the relevant declaration to UNESCO.
- Cases involving violations of directly applicable EU legislation restricting or prohibiting the cross-border transport of cultural property.
- This relates to the two EU Regulations currently in force that prohibit imports and exports of cultural items from and into Iraq and Syria and dealing in such items. Further information in this respect can be found in the section on EU law.
- Cases involving violations of Section I(1) of the Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.
Further information in this respect can be found in the section on International law.
Evidence of lawful imports (Section 30 KGSG)
Pursuant to Section 30 sentence 1 KGSG, anyone who imports cultural property that is:
“classified or defined as national cultural property by a Member State or signatory state shall be required to be able to show relevant documents to prove the lawfulness of the export from the country of origin within the meaning of Section 28 (1).”
Such documents may include export licences granted by the country of origin and other documents in which the country of origin confirms that the cultural property was exported lawfully. Situations in which the authorities provide confirmation that the cultural property does not require an export licence are also conceivable. If the relevant documentation cannot be obtained, evidence can at least be provided that the relevant cultural property left the country of origin in question before the reference dates of relevance for the ban pursuant to Section 28 KGSG (see above).
Consequences of a violation of the import ban
Pursuant to Section 83 (1) (3) KGSG, anyone who, in violation of Section 28 KGSG, imports cultural property which he or she knows has been removed in violation of legislation referred to in Section 28 shall be liable to punishment. This provision does not apply in cases of negligence, but a failure to carry the documents required pursuant to Section 30, whether through negligence or intent, may constitute an administrative offence (Section 84 (2) KGSG).
If there are reasonable grounds to believe that Section 28 KGSG will be violated or in the event of a lack of documentation pursuant to Section 30 KGSG, the competent Land authority is required to seize the cultural property (Section 33 (1) (1) (b) or Section 33 (1) (2) KGSG).
Finally, a violation of the import ban means that any subsequent import is unlawful pursuant to Section 32 (1) (2) KGSG.
Unlawful imports (Section 32 KGSG)
Alongside the import ban pursuant to Section 28 KGSG, Section 32 KGSG outlines the cases in which it can be assumed that cultural property has been imported unlawfully into Germany, with particular reference to the prerequisites for the initiation of return proceedings by a Member State or signatory state. According to Section 32, cultural property imported into Germany from 6 August 2016 onwards (except in the case of violations of the import ban) will also be deemed to have been unlawfully imported into Germany if it was unlawfully exported out of the country of origin after the reference dates that apply in respect of return proceedings under EU law (31 December 1992, EU-wide entry into force of the first Directive on the return of cultural objects) or under international law (26 April 2007, conferral of international law status upon the 1970 UNESCO Convention in Germany), or if it was imported in violation of other laws in force in Germany, for example legislation on the conservation of species that may also apply to cultural property under certain circumstances (e.g. in the case of ivory).
Consequences of unlawful imports
The above consequences (criminal liability and seizure of the cultural property) are a direct result of violations of the import ban pursuant to Section 28 KGSG; by way of contrast, Section 32 KGSG sets out provisions that become relevant only if return proceedings are initiated or if cultural property is placed on the market in Germany at a later date. For example, the due diligence requirements mean that it is necessary to check whether cultural property was imported unlawfully before it is offered for sale (placed on the market) in German. Unlawful imports are also significant in respect of the return proceedings that may be initiated in the country of origin (Sections 50 et seqq. KGSG) and in respect of the ban on re-exports (Section 21 (3) KGSG).
Section 32 KGSG does not give rise to any direct consequences of law, in which respect it differs from the import ban under Section 28 KGSG and the associated violations; instead, it gives rise only to indirect consequences in connection with the placement of cultural property on the market in Germany, its re-export or the initiation of return proceedings by the country of origin.