Art Beyond Its Borders

The international circulation of works of art is a constant throughout history. What has changed over time is the value that communities have attributed to these objects, which were long considered solely for their aesthetic merit and as instruments for the display of power—power being a frequent (and interested) patron. Starting in the 19th century, artworks progressively acquired an identity-related value, becoming symbols around which communities recognize and unite themselves. Today, a "cultural asset" is broadly defined as a "testimony having value as a civilization" (Franceschini Commission, 1964). The material object that serves as its physical support must therefore be considered not only in its tangible form, but also as a vehicle for an intangible value—artistic, historical, archaeological, archival, and so on—that determines its cultural and social significance (as well as the need for specific legal protection). By virtue of this, the Treaty on the Functioning of the European Union, while establishing the principle of the free movement of goods within the internal market (Articles 34 and 35), allows Member States to impose restrictions and prohibitions on trade for the purpose of protecting national artistic, historical, or archaeological heritage (Article 36).

Section curated by CBM & Partners

Primary legal source: Kulturgutschutzgesetzes

Cultural property subject to restrictions on removal from national territory

National Cultural Goods (Articles 6 and 7 of the Kulturgutschutzgesetz - KGSG):

goods registered in the register of cultural goods of national importance;
goods owned by public entities and listed in the inventory of a public-law institution that preserves cultural goods;
goods owned and managed by an institution that preserves cultural goods, primarily funded by public contributions;
goods that are part of federal or state art collections.

Cultural goods are registered in the register of cultural goods of national importance by each Land if:

they are particularly significant for the cultural heritage of Germany, the federal states, or one of its historical regions and thereby create an identity for German culture;
their export would represent a significant loss to the German cultural heritage.

Works by living authors may only be included with their consent.

Prohibition of Export

Pursuant to Article 21 of the KGSG, the export of cultural goods is prohibited if:

the procedure for registering the cultural good in the register of cultural goods of national importance has been initiated and the registration decision is not yet final and binding;
the required licence for the cultural good pursuant to Articles 22, 23, 24, or 27 is not available, or no licence has been granted pursuant to Articles 25, 26, or 27;
the cultural good was illicitly imported pursuant to Article 32;
the cultural good has been seized pursuant to Article 33;
the cultural good has been retained at the border pursuant to Article 81.

Intra-EU Exit Licences

1.Licence for the temporary exit of national cultural goods – Art. 22, 25, 26, and 27 KGSG:

licence for national cultural goods;

open general licence: granted to public institutions that regularly and temporarily export cultural goods for purposes of public exhibition, restoration, or research;
open specific licence: temporary licence relating to a specific cultural good, if the cultural good is to be used or exhibited repeatedly abroad;
licence for the exit of ecclesiastical cultural goods.

Failure to return the item within the established timeframe constitutes illegal export of the good (Article 31 KGSG).

2. Licence for the Permanent Exit of National Cultural Goods – Art. 23–24 KGSG

Required for the export of cultural goods to an EU Member State if the cultural good exceeds the thresholds set out in Article 24(2) KGSG.

The licence will be denied if, considering the specific circumstances of the individual case, there are overriding relevant interests of the German cultural heritage.

In general, for permanent export to the European market, the same age thresholds and double the minimum value thresholds listed in Annex I of Regulation (EC) No 116/2009 apply.

The thresholds are expressly increased for the following cultural goods:

Paintings: ≥ 75 years and € 300.000;
Statues, watercolours, gouaches, pastels: ≥ 75 years and € 100.000;
Mosaics, engravings, prints, photographs, manuscripts: ≥ 75 years and € 50.000;
Archives: ≥ 50 years and € 50.000;
Means of transport older than 75 years: 150 years and € 100.000;
Other antiques: 100 years and € 100.000.

Extra-EU Export Licences

Pursuant to Council Regulation (EC) No 116/2009 of 18 December 2008 on the export of cultural goods, an export licence is required for goods that are between fifty and one hundred years old and whose value exceeds a certain threshold, which varies depending on the type of item (e.g. € 50.000 for sculptures, €150.000 for paintings, € 30.000 for watercolours, gouaches, and pastels, etc.).

Free Exit

No licence is required for:

• Goods between 50 and 100 years old whose value is below the thresholds indicated above.
• Goods less than fifty years old, by living or recently deceased authors.

Prohibition of Export and State Purchase

If an application for the permanent export of a registered cultural good is denied, the competent supreme federal authority and the Länder authorities may consider arranging the purchase of the cultural good by or on behalf of a cultural institution located within the federal territory, which would make the good accessible to the public (Article 23(6) KGSG).

The owner may accept the purchase offer within six months. If the purchase is not completed, a new export application may be submitted, but not before five years have passed since the rejection of the previous application.