The Draft German Cultural Property Law and Dugups

Earlier on today, I was having trouble finding information about the proposed German legislation. It seems I was not the only one. Ursula Kampmann, 'Ministerial draft updating the legislation on the Protection of Cultural Heritage' (Coins weekly July 16, 2015 translated by Annika Backe) complains "it has not been possible for the competent authority to put the ministerial draft on the internet for you to make your own verdict" so she offers a breakdown of the bits she has seen as they affect the dugup antiquities trade. The proposals look very interesting. And they've got the antiquities trade very worried it seems, and Ms Kampmann is engaged in a negative propaganda campaign against it right from the start. Se fails to note the irony of her deriding the statement that the legislation ensures "that the legitimate interests of the trade as well as of private collectors” are taken into account. I think her problem is that she does not understand "legitimate interests" in the way others do. She is against the whole lot of articles she cites. I am for them, every one of the ones she attempts to trash.

§29 says:

“The import of cultural objects is prohibited, if 1. classified or defined by Members States or State Parties as national treasures possessing artistic, historic or archaeological value and, in contravention of the laws of the country, having been transferred outside the country’s territory.”

This is nothing more or less than implementing in German law Art. 3 of the 1970 UNESCO Convention, which gives the opinion of the international community which defines "illicit antiquities" and has done since 1970. Good. I'd like to hear the coin dealer's opinion why this is a "bad thing" and against the interests of a legitimate trade. The example she uses of "coins from Sicily that were smuggled outside the country by Italian suppliers in the 1980s and 1990s" as an example of what she considers to be the misapplication of law suggests she has little idea of what we are talking about when we refer to illicit antiquities. Smuggled artefacts Ms Kampmann are NOT licit antiquities" any more than smuggled booze, cigarettes, ivory or explosives. This is not making a law "act retrospectively" but a matter of establishing status. A Nazi-stolen painting remains a Nazi-stolen painting no matter how long it has hung in somebody else's gallery.

§33 further says: “The import of cultural property is illegal 1. if the cultural property has been transferred out of the country, in contravention of the state’s legislation on the Protection of Cultural Heritage a) after December 31, 1992, from another Member State’s [EU State] territory or, b), after April 26, 2007, from a State Party [non-EU State that has ratified the UNESCO Convention] or, 2., if the import is a breach of the legislation of the Federal Republic of Germany.”

That seems fair enough. The 1970 Convention lays down what is licit and illicit, anybody trading in stuff ignoring the need to prove that an object which they have bought falls among those traded licitly according to those principles is merely negligent. Tough luck, pay attention, get responsible next time.

§42 sets down the due diligence guidelines the dealers face

1. “Ascertain the name and the address of the vendor, the consigner, the buyer or the commissioner, 2. prepare a description and a photographic image suitable to ascertain the identity of the cultural heritage, 3. check into the provenance of the cultural heritage, 4. check into the records documenting the import and the export, 5. check into bans on and restrictions of import and export and check into the trade, 6. receive written or electronically sent declaration of the consigner or the vendor that he is authorized to dispose of the goods , and, 7. ascertain whether or not the cultural heritage is registered in publicly accessible lists and data bases.” These due diligence guidelines are less strict if the value of the cultural heritage is less than €2,500 and for archaeological heritage if its value is less than €100 unless full documentation of the objects’ provenance covering the last 20 years is provided whereupon the above-mentioned value limit of €2,500 applies. [...] the dealer [...] has to provide the buyer with his entire documentation, hence where he had bought the item, when, for what price, from whom and where the item had been the previous two decades. He is obliged to keep the relevant records for thirty years.

It is instructive to compare this with the document produced by the Portable Antiquities Scheme in Britain, which is one of the countries having an extremely liberal antiquities market. 'Advice for people buying archaeological objects from the UK Five things to ASK'. The two documents overlap quite significantly. Maybe Ms Kampmann would like to have a go at trashing the PAS version? Why? Also what Kampmann avoids admitting is that the new proposed regulations have an uncanny resemblance to those already in force in Germany since 2007. Aren't all German dealers already complying with them?

But I think we may all legitimately ask what Ms Kampmann thinks due diligence is in the dugup antiquity market and what should be done with the information gathered. The only novelty I can see is point two, which requires the dealer to record the information and keep it (see the 1970 Convention article 10). I would have thought that points 1, 3, 4, 6, 7 were standard business practice of responsible dealers, all of whom should not need to look up the "restrictions of import and export" of dugup antiquities from the source countries concerned because they should know them by heart. What, otherwise, is good business practice in the legitimate antiquities trade, and if they are missing from the business practice of certain dealers, how can they claim to be dealing in licit antiquities? Please Ms Kampmann, I am all ears.

§51 says that any cultural heritage shall be regarded as having been transferred to Federal Territory after the law came into force if it cannot be ascertained anymore whether or not the item has been on Federal Territory, on the domestic market or in a third country prior to April 26, 2007.

Good, there'll be much less "ooops-I-somehow-lost-the-paperwork" around. Sensible dealers will not be adding to their stock items which have no documentation of when they arrived in Germany. The cowboys will be left with the rest. Art 3 of the 1970 UNESCO Convention is clear enough, anybody who continued to ignore it really has only themself to blame. Note they are not required to provide documentation back to 1970, but 2007, eight years ago. This brings us back to that question of registering contents of private collections in order to provide that 'time stamp'.

I am sure the discussion of the new laws will continue. Perhaps a good place to start would be for dugup dealers to make their own proposals on how the formerly no-questions-asked market could be regulated to exclude illicit artefacts.

Vignette: Germany holds its head up high.