Due diligence requirements that apply in connection with the sale of cultural objects
Although anyone who places cultural objects on the market must comply with certain due diligence requirements, creators of such objects benefit from certain privileges in the context of commercial trade.
As a basic principle, anyone who places cultural objects on the market in Germany is obliged to exercise due diligence in first checking whether the objects have been lost, unlawfully imported or unlawfully excavated (Section 41 of the German Act on the Protection of Cultural Property (Kulturgutschutzgesetz, KGSG)). Such checks are, of course, superfluous if the individual has created the work himself or herself.
Additional due diligence requirements apply to individuals who place cultural objects on the market “for commercial reasons” (Sections 42 et seqq. KGSG). The legislator includes under this heading artists who market their own works, although these individuals need comply with only two special requirements. Pursuant to Section 42 (1) (1) and (2) in conjunction with Section 43 KGSG, artists who sell their own works for a sum of over EUR 2,500 are obliged merely to:
- keep a record of the name and address of the acquiring party; and
- provide a description and an illustration that can be used to establish the identity of the cultural object.
Artists who regularly sell their own works are obliged to keep records of this kind for tax purposes as well. If the tax records meet the obligations imposed by the Act on the Protection of Cultural Property, they will be deemed adequate for the purposes of this Act. These records can also be kept electronically, in which case they must be retained for 30 years (Section 45 KGSG).
Further information can be found in the section on the due diligence requirements imposed by the Act.