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Export of cultural goods in a comparison between Germany and Austria

As in all countries, cultural assets in Austria and Germany have a high cultural value, reflect the stories of a country's identity and symbolise the heritage of a people.

Germany: Export Procedure for Cultural Goods

I have a cultural object and would like to export it from Germany: how is this done and what does the term 'cultural object' cover?

For some years now, there has been a uniform law throughout Germany in addition to the state laws on the protection of historical monuments: the so-called 'Kulturgutschutzgesetz' (KGSG - Cultural Goods Protection Act). This central national law not only answers questions on export, but also regulates the protection and return of German and foreign cultural property and measures against illegal trade, such as seizure (Section 33 KGSG) and confiscation (Section 37 KGSG) of cultural property.

Section 6 (1) KGSG regulates which objects are considered cultural property. This states that:

"National cultural property is cultural property that:

1. is registered in a register of cultural property of national value,

2. is publicly owned and held by a public institution that is legally responsible for the preservation of cultural property,

3. is owned by an institution that conserves cultural goods under public law,

4. is part of a public or state art collection' (source: Section 6 (1) KGSG). Pursuant to Section 7 (1) KGSG, a cultural property is entered in the register of cultural property of national value if it is significant for the cultural heritage of Germany and its removal would represent a significant loss and thus conflict with the public interest. (Source: Section 7 KGSG)

Publicly owned property is considered cultural property, even if not entered in the register. For private property, Article 24 of the German law sets out the criteria for entry in the cultural property register.

This system differentiates cultural goods according to type, age, value and export destination, thus setting limits for applying for an export licence.

For an export from the EU, according to Section 24 (1) (1) KGSG, stricter age and value limits prevail than for export within the EU.

In fact, Section 24 (1) KGSG states that EU Regulation 116/2009 applies directly to the export of cultural goods to third countries - in short, an export licence is required if the limits specified in the regulation are exceeded. The export provisions of Regulation 116/2009, however, are relaxed for exports within the EU by the provision of Section 24 (2) KGSG. The export licence limits in the Regulation have been increased for certain goods specified in this paragraph:

"(2) For the purpose of export to the internal market, the minimum age limits and twice the minimum value limits set out in Annex I to EU Regulation 116/2009 shall apply, subject to the following additional increased minimum limits for cultural goods listed in Annex I, Category A, in the following categories:

1. point 3: 75 years and EUR 300 000;

2. points 4 and 7: 75 years and EUR 50 000

3. items 5, 6, 8 and 9: 75 years and EUR 50 000

4. point 12: 50 years and EUR 50 000

5. point 14: 150 years and EUR 100 000

6. point 15: 100 years and EUR 100 000'. (Source: Article 24 (1) and (2) KGSG)

If one of these limits is exceeded, an export licence must be applied for. Licences for the permanent export of national cultural goods are issued by the Commissioner of the Federal Government.

Export without a licence is illegal according to Article 31 KGSG. (Source: Article 31 KGSG)

Article 23 concerns the permanent export of cultural goods. The central paragraph is paragraph 2, which reads: 'A licence shall be refused if, in the assessment of the circumstances of the individual case, the essential interests of German ownership of cultural property prevail. If an overriding interest prevails, the cultural object shall remain in Germany. (Source: Section 23 (2) KGSG)

The overriding interest in the preservation of German cultural property is assessed according to §24 KGSG. If export permission is denied, the federal authority invites the Land to assess the purchase of the work of art on reasonable terms. The German state and the Land are not obliged to purchase it unless the owner proves that he has applied for export due to economic difficulties. (Source: Article 24 KGSG)

There are also several other forms of export licences in the KGSG. Section 22 KGSG concerns temporary export licences, i.e. the export is only authorised if it is guaranteed that the cultural good will return to Germany in due course. (Source: Section 22 KGSG)

Two other important types of temporary export licences exist in the KGSG. Section 25 KGSG contains the general open licence (applicable e.g. to museums), while Section 26 KGSG (applicable e.g. to private individuals) contains the specific open licence. These open licences are used when the cultural good travels a lot. This type of licence is very practical because the permit is only required once for a certain period of time and does not have to be obtained separately each time it is exported.

The applicant, however, must offer some guarantee in order to obtain these two types of licence: 'The licence may only be issued if the applicant offers a guarantee that the cultural good intended for temporary export will be re-imported in an undamaged condition and within the stipulated period'. (Source: Section 26 (3) and Section 25 (3) KGSG)

Austria: Export Procedure for Cultural Goods

How is the export of cultural goods handled in Austria and what does 'cultural good' mean?

The national legal basis of the Austrian Cultural Goods Act is to be found, on the one hand, in the 'Kulturgueterrueckgabegesetz' (Cultural Goods Restitution Act), which regulates the restitution of illegally removed cultural goods, and, on the other hand, in the 'Denkmalschutzgesetz' (Monument Protection Act), which is relevant here, as it not only includes the protection of monuments, export regulations and penalties for violations of the export ban, but also protects cultural goods from illegal export.

The term 'cultural property' is regulated in Section 1 (1) of the Protection of Monuments Act (in short: DMSG) and states that a monument, or cultural property, is a man-made object of historical, artistic or cultural significance. Furthermore, its preservation must be in the public interest, which exists when the loss of the object would lead to a reduction of Austria's cultural heritage as a whole. (Source: Section 1 (2) DMSG)

In Austria, too, there is a presumption of public interest in the preservation of public property (of the federal government and the states). Public property is always cultural property. Privately owned assets, on the other hand, are declared to be of cultural significance by special decree of the Federal Monuments Office.

Section 16 (1) (1-3) DMSG provides for a general export ban for protected cultural goods if:

"1. it is a cultural property protected as a historical monument or for which at least one protection procedure has already been initiated by the Federal Chancellery

2. cultural property that, according to the Ordinance on the delimitation of cultural property of minor importance in general, falls into the category of cultural property requiring an export licence

3. archival documents'.

(Source: Section 16 (1) (1-3) DMSG)

Austrian law also provides for age and value limits for applying for an export licence. According to Section 16 (3) DMSG, the Federal Minister of Education, Arts and Culture is authorised to define in an ordinance groups of goods with age and value limits that do not require an export licence. A corresponding ordinance was also issued and is still in force. In this national ordinance of the Federal Minister, the age and value limits are, unlike in Germany, identical to those in EU Regulation 116/2009. (source: Article 16 (3) DMSG)

To be able to export a work of art, an export licence under Article 17 of the MSG must be obtained, which is valid both within and outside the EU. A licence under Art. 17 of the MSG can be obtained in the cases referred to in Art. 16 (1) (1-3) of the MSG if one of the elements referred to in that paragraph exists.

Section 17 (1) says, that for an export in the cases of Section 16 (1) (1) and (3) an authorisation is always required. This is only granted in cases particularly worthy of consideration. (Source: Section 16 (1) and 17 (1) DMSG)

Which cases are now considered worthy of consideration in the sense of Article 17 (1) MSG is explained in Article 17 (2) MSG: a weighing is made with the applicant's motives and the public interest in the preservation of the cultural property in the country.

In this regard, special attention is paid to the variety and diversity of the cultural property heritage in the country, and whether this is compromised by export. The decision is taken on the basis of compelling reasons, i.e. the national interest of the cultural good. (Source: Article 17 (2) MSchG)

Article 22 DMSG contains the authorisation for temporary export and subsequent re-export. This provision serves purposes such as restoration and studies.

According to Article 21 of the MSG, the authorisation and confirmation expire after 5 years, unless extended upon request.

In the event of a breach of the export ban, the confiscation of the work of art is provided for in addition to a prison sentence. (source: Art. 21 and 22 MSG).

Finally, according to Article 18 DMSG, it is possible to ask the Federal Monuments Office to confirm that a work is not of national interest. In this case, if the office responds positively, an export licence is automatically granted; if not, a protection procedure is started immediately. (Source: Art. 18 DMSG)

Austrian law has a special provision in Article 20 of the MSG that requires offices not to evaluate the granting of an export licence from an economic point of view if it can be shown that a legally binding purchase offer exists and the prospective buyer pays a deposit of 10% of the sales price.

This is intended to protect international trade by facilitating the successful conclusion of existing contracts. (Source: Article 20 DMSG)

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