SPAIN Law and Practice Contributed by: Rafael Mateu de Ros, Patricia Fernández Lorenzo, Javier Fernandez-Lasquetty and Luis Rodríguez-Ramos, Ramón y Cajal Abogados
5. Cultural Heritage 5.1 Defining Cultural Heritage
Movable Assets that are in the possession of eccle - siastical institutions, in any of their establishments or premises. The latter may not be transferred for valu - able or gratuitous consideration, nor be transferred to individuals or commercial entities. Such property may only be alienated or transferred to the State, public law entities, or other ecclesiastical institutions. 5.3 State Rights to Cultural Heritage In the case of archaeological items, all objects and material remains that possess values characteristic of Spanish historical heritage and are discovered as a result of excavations, earth removals, or works of any kind (or by chance) are considered public domain goods. The discoverer has the obligation to notify the competent administration of their discovery within a maximum period of 30 days, and immediately when it comes to accidental finds – although each regional law may establish a different period. The discoverer and the owner of the location where the item was found have the right, as a cash reward, to half of the value attributed to the item in a legal appraisal and this will be distributed equally between them. If there are two or more discoverers or owners, the same propor - tion will be maintained. In the case of other types of cultural heritage, the autonomous community (region) has the authority to declare the item as a BIC or as an item in the General Inventory of Movable Assets and the asset cannot be transferred, sold or exported without the consent of the Ministry of Culture. The public administration does not automatically acquire ownership of the item, but it has the power to claim its custody, conservation, and management. It may even declare the item unexport - able by ministerial order, while the process of its dec - laration as a BIC or as an item in the General Inventory of Movable Assets is underway. 6. Sale of Art Objects Domestically and Abroad 6.1 Key Clauses in Art Sale Contracts An art sale contract typically includes several key clauses to ensure a clear and legally sound transac - tion. The main clauses are as follows.
According to Article 1 of the Cultural Heritage Pro - tection Law, “Spanish historical heritage” is a broad and poorly defined concept, as it includes immovable and movable property of artistic, historical, paleon - tological, archaeological, ethnographic, scientific or technical interest. It also encompasses documen - tary and bibliographic heritage, archaeological sites and areas, and subaquatic assets, as well as natural sites, gardens, and parks that hold artistic, historical or anthropological value. In addition, “intangible cul - tural heritage” is considered part of Spanish historical heritage, in accordance with its specific legislation. Notably, Spanish law does not impose criteria based on antiquity, territorial origin, or authorship, or other criteria for an asset to be declared part of Spanish his - torical heritage. Instead, the law establishes different categories of protected assets, as follows. • The highest level of protection applies to immov - able and movable property declared as assets of cultural interest ( bienes de interés cultural , or BIC), which are registered in the General Register of Assets of Cultural Interest. • A secondary level of protection applies to movable property included in the General Inventory of Mov - able Assets. • A general category includes assets that, although not falling under the two aforementioned protection levels, could be still part of Spanish historical herit - age because they are more than 100 years old. In summary, Spanish law provides a broad and flex - ible framework for the protection of cultural heritage, ensuring that a wide range of assets – both tangible and intangible – can be preserved for their historical, artistic or cultural significance. 5.2 Cultural Heritage and Adverse Possession The artworks and other movable property declared as BIC and those included in the General Inventory of Movable Assets shall be imprescriptible and in no case shall the acquisition by adverse possession apply to such property. The same applies to BIC prop - erty and those included in the General Inventory of
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