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paul.russell@russell.nl +31 20 301 55 55The long expected advice by the Committee Collection Netherlands (Buma Committee) concerning the protection of essential Dutch cultural heritage has been issued. Its content is bad news for collectors and art dealers active on the international art market.
The definite advice by the Buma Committee, Unreplaceable & Indispensable (Onmisbaar & Onvervangbaar) differs little from the interim opinion they issued in March 2021. Our comments on this opinion therefore, also apply to the final advice.
The basic idea of the advice is that the current system of protection by listing cultural goods that may not be exported will be substituted by a system of export permits. Starting point, therefore, is that the export of cultural goods is prohibited. Export is only allowed with a permit. Currently, this permit is already required for export to countries outside the EU, but it will also become mandatory for export within the EU. In short, more insecurity for those who want to offer art on the international market.
The Committee considers the Collection Netherlands as a dynamic ensemble, as the views about what Dutch cultural heritage actually is are changing. It must contain more room for the recent past and for cultural heritage from regional and immigrant communities. The criteria for the protection are “Cultural goods and collections are eligible for protection if they are unreplaceable and indispensable and of indispensable cultural-historical or social importance for the Collection Netherlands. In addition, they must have been in the Netherlands for at least five years.” The explanation for the chosen period of time is that it is intended not to frustrate the art trade unnecessarily. That does not alter the fact that it is still just one tenth of the current period of 50 years. A period that the report does not mention.
The current list of protected cultural heritage needs to be evaluated during the next ten years. No new objects will be added to it; however, it is possible that objects will be taken off of the list. As long as the evaluation of an object has not been completed, it cannot be exported.
For the categories in the permit system, the Committee wants to follow the guidelines for export outside of the EU. It does, however, advocate to raise, in consultation with the art trade, the thresholds above which a permit is required. These are old and the prices for the top items to be protected have risen considerably. Besides, the export of art between 20 and 50 years with a value of more than € 750,000 must be subject to permitting.
In practice, this means that art dealers or collectors who intend to lend, sell or donate a work of art to a foreign country must check if it falls under one of the protected categories. If that is the case, they must request a permit. A foreigner who inherits or is donated Netherlands cultural heritage also needs an export permit. The government must decide on the request for an export permit within eight weeks. If an artwork is exported without permit, the Dutch government can retrieve it.
Art dealers will be given the opportunity to apply for a “passport” for an artwork. They can use it to move the artwork freely within the EU for 10 years. In that case, they do not need to apply for a new permit for each fair abroad or each visit to a potential buyer. They can also use this passport to sell an artwork. No new permit is needed for this. A condition to get a passport is that it does not concern an artwork which meets the protection criteria.
This appears to be a concession to the art trade, but the bottom line is that the government gets the chance to reconsider its previous decision. It would be more practical for the art trade if they could make use of the permanent permit for this. The artwork is not eligible for protection and permitting only makes the export possible, but is not an obligation to export the work of art.
If the owner goes through with his or her plan to sell, others than the State will first get the opportunity to buy the artwork within six months. These six months also include the time to have the artwork appraised, possibly with proceedings before the District Court of The Hague. If there is no buyer, the State has to buy the artwork within six months, either with or without support from other funds. If that does not happen, the owner will get an export permit. The period of uncertainty as to whether the sale can go ahead therefore lasts, in the worst case scenario, one year and eight weeks. It is incomprehensible that this extension of the current deadline of six weeks provides the owner of a cultural good with more clarity as continuously suggested by the Committee.
Cornerstone of the protection is the National Acquisition Fund. After all, export of protected cultural heritage can only be prevented by buying the artwork at the price prevailing on the international market. The fund is to be paid up to 25 million euros annually and 50 million euros must be available as standard. We previously noted that this is just a mere pittance for top items these days. For the acquisition of The Standard Bearer by Rembrandt the State has to pay 150 million euros. This is six times the annual budget of the National Acquisition Fund. It was too little and a budget amendment was required to finance the acquisition.
Currently, 15 million euros of the funds are reserved for guarantees for works that Dutch museums receive on loan from abroad, as we reported previously. On the upside, the Committee now no longer advises for the guarantees to be taken from the National Acquisition Fund.
The Committee advises to give owners more compensation for the maintenance of the protected cultural heritage in their property. Also, there should be more possibilities to deduct a gift in life from taxes. The Committee also advocates for more publicity of donations, as this would encourage donors. There is some comment to be made about this. If someone donates a valuable work of art, it is obvious to assume that this person will own more valuable artworks. Most collectors will not look for extra attention from thieves.
In lieu of the current Ad hoc Committee Unreplaceable and Indispensable there should be a permanent independent advisory committee. It has to put hands and feet to the assessment criteria, advise on export permits and the acquisition of cultural heritage of low financial value. In addition, the advisory committee has to evaluate the current list. In order to get sufficient expertise, the permanent committee can work with a broad circle of national and international experts. Explicit advice is to also include collectors and art dealers in this circle, so that their interests can be taken into account, too.
All in all, these proposals give the State much more leeway to restrict the free disposal of collectors and art dealers about their property. It only increases the uncertainty of sales and gifts abroad. That much clarity is provided by the advice.
A lot will also depend on how the criteria are applied. According to the Buma Committee, unreplaceable and indispensable are the most important of these criteria. However, that these can be very specific can be seen, for example, from the explanation on the purchase of The Standard Bearer, why this particular work in addition to all other works by Rembrandt that are in the Netherlands already, must be purchased. As an ambitious painting from Rembrandt’s short baroque period, it is an indispensable link that, so far, has not been represented in Dutch museums and a prelude to The Night Watch.
The advice of the Committee Collection Netherlands is currently no more than an advice. As the content differs little from the interim opinion, to which the then Minister had already responded positively, it is to be expected that this time it will be no different. However, it will take quite a while before it becomes an Act. The government first has take a position and process the desired amendments in a legislative proposal. Given all following steps – advice of the Council of State, House of Representatives, Senate – no changes can be expected within a year. This means, the current procedure with export permits for countries outside the EU will remain in force until further notice. Within the EU, artworks can be exported without a permit.
For many years, Russell Advocaten has been specializing in art and law. We closely monitor the developments regarding the protection of cultural objects and keep you informed via our website and LinkedIn. Do you have any questions about the import or export of artworks? Or do you need legal advice in an art matter? Please contact Paul W.L. Russell, LL.M. (email paul.russell@russell.nl or call +31-20-301 55 55).
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