Heritage Act: protected cultural goods in private ownership

The government has outlined in a letter how it intends to translate the proposals from the Buma Committee’s advice into regulations. What does this mean in practice for private individuals who own art or other cultural goods? But first: what are the rules for exporting protected cultural goods at the moment?

The protection of privately owned cultural goods has been the subject of much debate in recent years. The Council for Culture, for instance, has prepared several advisory reports to improve the protection of important cultural goods in private ownership, particularly to ensure that they remain in the Netherlands. Private art owners also wish to change the current regulations, mainly because they lead to a major encroachment on their property rights. Despite this, much has been written in recent years, but little has changed.

At the end of December last year, the Minister of Education, Culture and Science suggested some areas for improvement in response to the Buma Committee’s advice. In this blog, we set out the current regulations. We also show, using a concrete example, how those regulations work in practice and what this means for owners of art and other cultural goods. The next blog will discuss the proposed changes regarding the protection of private culture, with some critical comments.

Current cultural protection policy – the Heritage Act

The rules

The main means for the State to preserve art of national importance in the Netherlands is to designate objects or collections as protected cultural goods. These objects and collections may then no longer be sold, given on loan or even moved without – prior – permission from the government. The objects or collections are registered in the register of protected cultural goods. An object or collection appears on this list when it is indispensable and unreplaceable for Dutch cultural heritage. This applies, for example, to works that have symbolic value for the national past, play an important role in the development of science and culture, or are of scientific importance for further research.

Current cultural preservation policy leads to several problems.

1. The list is relatively static, and the criteria for listing are often interpreted broadly, meaning that objects from other cultures can also be listed.
2. In practice, it often proves difficult to remove objects that are unjustly on the list, while the Minister can quickly add objects through an expedited procedure. This is particularly problematic since the list was drawn up in the 1980s and museums at the time used it to put works they had on loan on the list, thus tying up the associated future income.
3. Naturally, owners can no longer dispose of their assets completely freely once they are listed. After all, the export of protected cultural goods abroad is subject to authorisation and they have to offer their cultural goods in the Netherlands if they want to sell. If this fails, the State has some time to make a market-based offer. Only if the State fails to do so will the export licence be granted. However, this delay may actually cause an important auction to be missed, where the owner could have got the optimal price for the artwork.

In short, the cultural protection policy creates a lot of uncertainty and disadvantages for private owners of cultural goods. This is clearly demonstrated by a recent case.

The practice: the ring of Sumar

In 1997, Pieter de Jong found a unique ring over 1,000 years old in Sumar in the Dutch province of Friesland using a metal detector. The ring features a representation of the Lamb of God surrounded by the 4 evangelists. As De Jong has two daughters and the ring is not divisible, he wants to sell the ring. First, he visits the famous Dutch televised art show Tussen Kunst en Kitsch (Between Art and Kitsch) and later the well-known international auction house Sotheby’s. Meanwhile, in 2022, the minister designates this unique ring as ‘protected’ under the Heritage Act because of its cultural-historical value. This therefore means that the ring can no longer be sold abroad.

The heritage procedure has been initiated so that interested parties in the Netherlands can apply to buy the ring within six weeks. Of course, with the note that the ring may never leave the Netherlands. That usually dampens interest and appetite to buy, and thus the price an interested party will be willing to pay for the art object. Meanwhile, since 2022, Pieter de Jong cannot sell and concert into cash his property, the unique ring, at an international market value, which has long been determined by experts. And all this just because the minister has designated the ring as a protected cultural asset.

This state of affairs naturally raises questions. Why did the Minister not enter into quick and resolute negotiations with Pieter de Jong immediately after the ring was designated as a protected object, showing that it is a unique and irreplaceable Dutch cultural object? And why didn’t the State just generously pull out its wallet to buy this apparently unique cultural object at the known appraised international market value?

Old problem: the Cézanne in Museum Boijmans

Problems with the export of protected cultural goods are by no means new. Russell Lawyers has successfully litigated against the State on several occasions in this regard. One of these cases concerned in 1995 the sale of a painting by French impressionist Cézanne, which hung as a loan in Museum Boijmans van Beuningen. Like several other loans, it had been declared a protected Dutch cultural object by the Ministry of Culture.

The State forbade its export, upon which the owner offered the painting for sale to the State. Valuation reports by Christie’s and Sotheby’s for this landscape by Cézanne apparently could not convince the State to pay the international market value to the owner in good faith and generously. The State only wanted to pay less than half of the value appraised by Sotheby’s and Christie’s. That issue therefore ended in a years-long drama with high litigation costs for both parties.

Eventually, the court appointed three international experts to determine, after years of mutual legal wrangling, the international market value of Cézanne’s unique and irreplaceable painting. This was then much higher than the valuation by Sotheby’s and Christie’s years before. The Secretary of State subsequently withdrew his objection to selling abroad. If he had to choose between buying a French and a Dutch painting, he naturally chose a Dutch painting.

In other words: the Cézanne had been wrongly placed on the protected list of the Cultural Heritage Preservation Act. And that while the State, through the Heritage Act, is infringing on the full property rights of Dutch citizens and thus enforcing a right of first refusal to purchase in perpetuity. This should therefore be compensated – internationally – in a reasonable market-based manner, without legal and other red tape, if the State wants to keep these unique and irreplaceable cultural goods for the Netherlands.

Licensing requirement for export of cultural goods outside the European Union

In addition to the list in the Heritage Act, there are also restrictions on the export of cultural goods to countries outside the European Union. A licence is required to export certain cultural goods out of the European Union. There are 15 categories of cultural goods, from paintings to books and from photographs to vehicles of transport. If an object in such a category exceeds a certain threshold value and age, a licence for export outside the European Union is required.

The value and age thresholds may vary by category (see Annex 1 of Regulation 116/2009). In many cases, these are objects over 50 or 100 years old with a minimum value of at least € 15,000. For some categories, such as archaeological objects or archive documents, only an age threshold applies. The export of such items is subject to licensing regardless of their value.

Will the cabinet plans ensure that protectable cultural goods are preserved for the Netherlands without compromising the rights of private owners, as is the case in the cases described? And how could this be done? We will address those questions in a subsequent blog.

Art lawyer

Do you have questions about the sale and purchase of works of art? Do you want to know whether this requires a licence? Or do you need legal assistance in a dispute about art and law, for example about the authenticity of a work of art? Please contact us: