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paul.russell@russell.nl +31 20 301 55 55The 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 owners of art or other cultural goods? Will this solve the problems of owners?
At the end of December last year, the Minister of Education, Culture and Science proposed in a letter some points of improvement for the protection of cultural goods in private ownership. In a previous blog, we outlined the current regulations and showed that they do not work well in practice. In this blog, we discuss the proposed changes regarding the protection of privately owned cultural goods and make some critical comments.
The reports of the Pechtold Committee, From reserved to involved (Van terughoudend naar betrokken), and later the Buma Committee, Unreplaceable & Indispensable (Onmisbaar & Onvervangbaar), advised on improvements to the Heritage Act, and more specifically on the protection of cultural goods. The latter advice in particular was incorporated into the Minister’s letter. Among other things, the Buma Committee advised to discontinue the register and introduce a national licensing system for exports from the Netherlands, i.e. in addition to the existing licensing system for exports from the European Union as set out in the first part of this blog.
Currently, it is possible to bring cultural goods, which meet the protection criteria but are not listed, outside the Netherlands licence-free, as long as they remain within the European Union. The Buma Committee therefore recommended introducing a national licensing system. A similar system also exists in France and Germany. The government’s earlier response to the Buma Committee’s advice shows that it intends to introduce a national licensing system to allow the export of protected cultural goods outside the Netherlands only with a licence.
Although the minister in his recent letter endorsed the underlying concerns of the Buma Committee, he ‘only’ announced to work on a solution that regulates protection, with an eye on proportionality and feasibility. Thus, the criteria for whether or not to allow exports from the Netherlands have yet to be worked out. How and whether a national licensing system will be shaped is therefore uncertain. However, it is likely that any national licensing system will use a certain threshold, just like the European licensing system.
The Buma Committee’s advice to discontinue the register is not adopted by the government. Indeed, also in the future, in the government’s view, an important role for the register exists alongside the licensing system (or perhaps systems). This is reflected in the government’s 2022 response.
Indeed, the government values the possibility of being able to protect works of art also through the list in exceptional cases. For instance, it could happen that the licence application of a loose item from a collection is granted, while the whole is worthy of protection. The list could also be a solution in cases where the work is of low financial value or is not old enough to require a licence. The list will therefore be retained. Where the licensing system with threshold values may still offer some clarity to owners of cultural goods, this will be undone by the list. Especially for the trade in modern art, this creates uncertainty.
However, since 1 January 2024, the Standing Committee on Protected Cultural Property has been established. Among other things, this Commission will advise the minister on reassessing the list and the protectability of cultural goods. This is expected to make the list more dynamic and works may be removed from the list over the years. However, with a licensing system, the export of these works will still be subject to far-reaching restrictions.
The pain point of protective measures thus remains. Indeed, complete free disposal of works remains impossible for owners. In the December 2024 letter, the minister also indicated his intention to improve the protection system of the Heritage Act – by adjusting the designation criteria – in consultation with further committees. This should prevent works from ending up on the list inappropriately in the future.
In some cases, permission from the owner is needed to designate a cultural object as a protected cultural object. For example, a work must have been in the Netherlands for 50 years before it can be designated as a protected cultural object. The Buma Committee proposed that a work must have been in the Netherlands for at least five years before it can be listed. This is a significant deterioration for the owners of these works, who themselves have imported these cultural goods into the Netherlands and thereby enriched the Dutch cultural heritage.
In addition, a larger number of works may be placed on the list in the future, according to the 2022 government response to the Buma Committee’s advice. This is because the age limit for designation as a protected cultural object will be dropped, contrary to the Buma Committee’s advice, which still proposed a minimum age of 20 years. In his letter of December 2024, the minister no longer addresses these points in substance, giving the impression that he agrees with these changes.
The minister indicates in his letter that the objectives of the acquisition fund should be anchored in the Heritage Act. Also, the acquisition procedure for protected cultural goods will be amended and moved from the Heritage Act to an underlying regulation.
More importantly, however, the budget for the Museum Acquisition Fund will not be increased as the Buma Committee proposed. Instead of 25 million euros a year, a one-off contribution of 19 million euros was deposited, which was intended as a repayment for the purchase of Rembrandt’s ‘The Standard Bearer’. So the State has still not set aside the funds to generously compensate owners of cultural goods for the infringement on their property rights that the Heritage Act makes with the list of protected cultural goods. So there is currently no budget to be able to preserve precisely the expensive masterpieces for the Netherlands. This is a bad thing for the protection of Dutch cultural heritage.
In the December 2024 letter, the minister states that he will submit concrete amendment proposals to the Dutch Parliament in the coming years. A tense period, then, in which changes to the Heritage Act will hopefully finally take place. For private cultural owners, these changes do not appear to be beneficial for the time being. The list will remain, although it will be updated. In addition, a second licensing system is likely to be introduced. So more regulation and less power of disposal over their property for owners of private cultural property. And on top of that, there is also insufficient money available to compensate them for these infringements.
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