Cultural property of national significance
Owners of cultural property of national significance own works that are of particularly outstanding significance for Germany’s cultural heritage. Special rules therefore apply to these particular cultural objects.
Criteria for entry
Since 1955, German law has provided an avenue for conferring particular protection upon outstanding cultural property by entering it in a register of cultural property of national significance. As a basic principle, the permanent removal of these cultural objects to another country is prohibited unless an export licence has been granted; such licences are issued only within very tight constraints. As was previously the case, national loans of cultural property of national significance continue to be possible (further details).
Section 7 of the German Act on the Protection of Cultural Property (Kulturgutschutzgesetz, KGSG) sets out clear legislative criteria for entry in a register of cultural property of national significance, most of which are based on entry-related practices over recent decades. These criteria are nevertheless worded in very general terms, which reflects the fact that they need to be suitable for application to many different cultural objects.
The first criterion for entry in a register of cultural property of national significance is that the relevant cultural object:
“[…] is particularly significant for the cultural heritage of Germany, its Länder or one of its historical regions and thus formative for Germany’s cultural identity […]”
This finding applies regardless of the market value of the cultural object. A painting that may fetch millions at an international auction does not merit entry if it bears no significance for Germany, its Länder or one of its regions. Similarly, a painting from another country cannot acquire significance of this kind simply because the cultural object in question has been located in Germany for many years. Instead, significance for the heritage of Germany, its Länder or one of its regions might be derived from the fact that the object in question was created either by someone of German nationality or in Germany, or from the fact that the painting depicts a famous person of German nationality.
If the cultural object has been created abroad, its significance may derive from the history of its reception in Germany; for example, this might apply to a painting purchased from France by Frederick the Great and held for decades within the collections at the palaces of Berlin or Potsdam.
Section 7 (1) KGSG provides for a second level of checks that are carried out only once the significance of the object for Germany’s cultural heritage has been confirmed. According to this provision, cultural property is eligible for entry only if:
“[…] its removal would be a significant loss for Germany’s cultural heritage so that keeping it in the federal territory is of outstanding cultural public interest.”
The circumstances of the individual case must be carefully weighed up in such instances, with particular emphasis on the “outstanding” public interest.
Restrictions concerning works by living artists
In Section 7 (1) sentence 2 KGSG, the legislator imposes an explicit restriction on the entry in a register of cultural property of national significance of works by living artists: even assuming that the strict criteria for entry in a register of cultural property of national significance have been met in an individual case, the entry can be made only with the approval of the originator or creator, even if the latter is no longer in possession of the work in question.
Eligibility for entry of entire collections
Pursuant to Section 7 (2) KGSG, an entire collection may, in principle, also be eligible for entry as a “group of objects”. In cases such as these, the checks focus not on the individual objects making up the collection, but on the collection as such, which may itself constitute an object of significance for Germany’s cultural heritage in so far as it lays testament to the collecting activities of the collector in question. These legislative provisions aroused fears in certain collectors that their collections might be entered in their entirety in a register of cultural property of national significance even if the individual objects within these collections did not meet the criteria for entry. These fears were unwarranted, because the collections held by active collectors are not, as a rule, “complete”. This means that there is no fixed collection in existence that might be subject to checks pursuant to Section 7 KGSG. The protection against exodus abroad granted under the Act on the Protection of Cultural Property is intended to prevent the expatriation of complete collections of significance for Germany’s cultural heritage rather than to hinder collectors in their collecting activities or to prevent the sale or acquisition of individual objects. According to the Act on the Protection of Cultural Property, a collection is regarded only as a complete entity and is therefore eligible for entry if the relevant collector is deceased or has agreed to part with a specific group of objects from his or her collection, for example by donating them to a museum.
Criterion for deletion
Section 13 KGSG outlines the criterion that must be met before cultural property can be deleted from a register of cultural property of national significance, either on an ex officio basis or on the owner’s request.
The criterion for deletion is a substantial change in the circumstances that led to the entry of the cultural property into the register of cultural property of national significance – the later discovery of counterfeiting or misattribution of authorship are good examples of such changes. In Section 13 (2) KGSG, the legislator explicitly refers to one such substantial change that gives rise to a right to deletion: an entry must be deleted if it has been established with final and binding effect or through final agreement between the stakeholders that the former owner was deprived of the cultural property between 30 January 1933 and 8 May 1945 as a result of persecution by the National Socialists, and that the cultural property should be exported out of Germany for the purpose of its restitution to its former original owners living outside Germany or their legal successors living outside Germany.
It is also possible for cultural property that has been entered in a register of cultural property of national significance to be deleted on an ex officio basis if the Federal Government Commissioner for Culture and the Media has issued a licence for the permanent export of said property (Section 23 (5) KGSG). Further information on such cases can be found in the sections on Permanent export licences and Purchase options.