GERMANY Law and Practice Contributed by: Tanja Schienke-Ohletz, Flick Gocke Schaumburg
The Cultural Property Protection Act covers works of art that are defined as “cultural property”. These are movable objects or collections of objects of artistic, historical or archaeological value or from other areas of cultural heritage, in particular of palaeontological, ethnographic, numismatic or scientific value. Works of art enjoy special protection as “national cul - tural property” if they: • are entered in a register of nationally valuable cul - tural property; • are publicly owned and held by a public-law insti - tution for the preservation of cultural property; • are owned and held by a cultural property preser - vation institution that is predominantly financed by public funds; or • are part of an art collection of the federal govern - ment or the federal states. Entry in the register of nationally valuable cultural property pursuant to the KGSG requires that the work of art be of particular significance to the cultural her - itage of Germany or one of its regions and that its removal would represent a significant loss to German cultural property. Works by living authors may only be entered with their consent. The export of works of art is also subject to value and age limits which, if exceeded, require an export licence. In summary, the KGSG covers all movable works of art of artistic, historical or scientific value. Works of art that are in public collections or have been entered in the register of nationally valuable cultural assets enjoy special protection as national cultural assets. 5.2 Cultural Heritage and Adverse Possession According to the German Cultural Property Protec - tion Act, it is prohibited to place on the market cul - tural property that has been lost, illegally excavated or unlawfully imported. Transactions involving obliga - tions and dispositions that are prohibited are null and void. However, the German Cultural Property Protection Act does not completely exclude the possibility of an adverse possession. In this case, the general rules of the German Civil Code apply.
Adverse possession of works of art is generally possi - ble provided that the general requirements – ten years of ownership and good faith – are met. However, there are restrictions. • If the work of art has been lost (eg, stolen or misplaced), adverse possession is excluded if the owner was not acting in good faith at the time of acquisition or later learns of the lack of authorisa - tion. • There is a prohibition on the marketing of lost cultural property, which is sometimes interpreted in the literature as an indication of an exclusion of adverse possession. However, case law does not see this as a general exclusion of adverse pos - session, but points out that in most cases there is already a lack of good faith, especially in the case of museum pieces or clearly identifiable cultural property. • Adverse possession is also excluded if there is a general prohibition on acquisition, which is not generally the case for works of art. As a result, an adverse possession is possible, how - ever the requirements of the German Civil Code are high. Overall, the problem with works of art that qualify as cultural property is that good faith is not usually given and ten years can also be very long for a mini - mum holding period. 5.3 State Rights to Cultural Heritage In the individual federal states of Germany, there are treasury rights for cultural heritage items which are ownerless or can be attributed to cultural history, or that are scientifically significant finds that become the property of the state or another public authority upon discovery. Furthermore, the state can secure and confiscate the cultural property in accordance with the Cultural Prop - erty Protection Act if it has been illegally imported, exported or lost. It then becomes the property of the state. Any rights of third parties expire. The previous owner is generally entitled to appropriate compensa - tion, unless they have recklessly brought about the conditions for seizure or acquired the cultural property in full knowledge of the circumstances.
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