Paul is a highly experienced, creative and tenacious litigator
paul.russell@russell.nl +31 20 301 55 55At the online symposium of the Vereniging Kunst Cultuur Recht on the Heritage Act and the protection of cultural goods, Paul W.L. Russell, LL.M. threw a few stones into the pond. How useful are protective measure to keep cultural heritage in the Netherlands without making underlying purchase funds directly available? Is the designation procedure necessary?
On Friday 13 November 2020, the Vereniging Kunst Cultuur Recht organized a well-attended and successful online meeting on the protection of cultural goods within the framework of the Heritage Act. The focus was on the functioning of existing rules in practice. Paul W.L. Russell, LL.M. was an expert/panel member during this event.
In his contribution he first dealt with the scheme to keep private art and cultural heritage of interest in the Netherlands. This scheme can only be effective if there is sufficient money available for purchases. If it does not allow a cultural object to be exported, the State is obliged to pay a price of it that is in line with the international market. In that case there must be sufficient money available.
However, the current National Purchase Fund has no legal basis and is not structurally filled with money. The Pechtold Committee also advised to ensure that there is always a minimum amount of money in the Fund. It must be taken into account that the art market is and was a global market. As early as in the 18ty century, almost all of Albert Cuyp’s works had disappeared from the Netherlands to England. If the Netherlands want to buy them back, a lot of money is needed. The two Rembrandts Marten and Oopjen cost the Netherlands 80 million each, 160 million in total.
He then raised the question whether there was so much that needed to be arranged in detail around art possessions. The USA have no detailed laws and regulations, but in practice that causes few problems. Private individuals invest heavily in their relationship with museums and vice versa and receive recognition for this. As a result, important art can be preserved and purchased. All EU countries have their own regulations. France, for example, has the “droit de préemption par l’état sur les biens culturels”. The State has the right, after the fall of the auction hammer, to claim the cultural good for that price.
In the report of the Pechtold Committee there is a decision tree for the designation of objects as protected cultural goods. Designation is necessary in cases where a cultural object is not yet in Dutch possession or where there are insufficient guarantees to keep the cultural object in possession.
Designation, however, can have the consequence that one is stuck with a work that one does not want in the end. That was the case with an issue Russell Advocaten dealt with. A flower still life by Jan Breughel the Elder in Museum Boijmans van Beuningen (right) had been placed on the list of the Cultural Heritage Preservation Act. The work of art had been bequeathed by a Dutch art collector to a German collector. Because it had been placed on the list, it could not leave the Netherlands without offering it for sale to the Dutch government. During the proceedings it turned out that the work of art did not meet the requirements: It was not “irreplaceable and indispensable”. On the contrary: There was a more beautiful version of the work of art in the Rijksmuseum with the same depiction (left). Because deletion was not possible at the time, the State was obliged, against its will, to buy the inferior work of art of which they already had another version.
Dutch art property is already very extensive and only visible to the public to a limited extent. Of the 1 million objects in the Rijksmuseum, only 8,000 are on display. Should there be more works of arts stored in the cellars because they cannot be exhibited?
The whole discussion is not new. As early as in the 19th century people warned of ruin. Victor de Stuers already polemicized against this in 1873. This mainly concerned cultural goods in the possession of (semi-)governments. And what is more, a collection is never finished. A well-filled acquisition fund therefore remains a requirement for the effective protection of cultural goods in the Netherlands, for this has been lacking since the 19th century. Even after the introduction of the Cultural Heritage Preservation Act in 1985.
During the discussion of this bill in the Dutch Senate in 1984, a plea was made for the formation of a large acquisition fund that could be supplemented each time, but even then Minister Brinkman of Culture did not want this. That is why now a new approach is being taken to preserve Dutch cultural heritage for the Netherlands. But this time the State must be willing and able to create an impressive and adequately funded acquisition fund.
Do you have a dispute about the export of a work of art from the Netherlands? Do you want to know what the consequences are for your property as protected cultural object, or do you have any other questions about art and law? Please contact Paul W.L. Russell, LL.M. (paul.russell@russell.nl or 020-301 55 55).
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