Paul is a highly experienced, creative and tenacious litigator
paul.russell@russell.nl +31 20 301 55 55Reinier advises national and international companies
reinier.russell@russell.nl +31 20 301 55 55At the last minute, in 2022, the Dutch government issued its response to the advice of the Committee Collection Netherlands (Buma Committee). What are the proposals? What consequences will they have for owners, heirs and collectors of art?
On 17 March 2022, Russell Advocaten, specialists in art and law, made some critical comments to the advice of the Buma Committee, but also indicated that it was only an opinion and that the cabinet was yet to come up with a final verdict. That has now been given.
Currently, there is a list with protected cultural goods that may not leave the Netherlands, which is taken from the Cultural Heritage Protection Act 1984 and which is now part of the Heritage Act. This list includes a limited number of works of art that may not be exported from the Netherlands. Placement on the list means that these works of art are in facto partially “expropriated”. Indeed, their owners can no longer dispose of their property completely freely, since export abroad is not permitted and they have to offer their cultural property to the State if they wish to sell it. This could have major consequences.
The list continues to exist and there is little change in the existing situation, contrary to what the Buma Committee recommended. For the government, the main argument for maintaining the list is that parts of collections, due to their low value, would slip through the loopholes of the upcoming license net, while affecting the value of the collection as a whole.
Listing becomes a condition of eligibility for support under the Protected Cultural Heritage Contribution Scheme, and the protected status facilitates recovery in case of theft, as a European directive on the return of illegally exported protected cultural heritage can be used.
However, the list will be reconsidered by a committee and therefore objects and collections may be removed from the list. It is not yet clear what the procedures to be followed for placement on and removal from the list will be and with what measures owners of designated cultural heritage will be compensated for this partial “expropriation”.
The government wants the export of all cultural goods above a certain threshold – which has not yet been announced – to require a license from now on, regardless of whether it is to a country inside or outside the EU. Currently, such a license is only mandatory for exports to countries outside the EU. The criteria to be used for whether or not to permit export from the Netherlands of works of art and for placement on the list have yet to be worked out by a further committee. Nothing can be seen from the Buma Committee’s advice to include collectors and art dealers in that committee, and no explanation as to why is given.
If the export license is refused, the work of art in question will be placed on the public list of works that may not be exported, i.e. the list from the Cultural Heritage Protection Act.
A larger number of works may fall under the licence requirement and be placed on the list. This is because the age limit for the designations as cultural heritage will be dropped, contrary to the advice of the Buma Committee, which still proposed a minimum age of 20 years.
In addition, the Buma Committee proposed that a work of art must have been in the Netherlands for at least 5 years before it can be listed. Currently, this term is 50 years, so this means a significant change for the worse for the owners of these works of art, who themselves have imported these cultural goods to the Netherlands and thereby enriched the Dutch cultural heritage.
The government does not discuss this term in its letter, but given the disappearance of the age limit, it is to be expected that the term will become shorter rather than longer than proposed. This does not encourage collectors to import works of art to the Netherlands, as they may not be exported after a short period of time.
We argued earlier that the increase of the budget of the National Acquisition Fund proposed by the Buma Committee would be anything but adequate, as the past has shown, given the amounts involved in the acquisition of, for example, Rembrandt’s Oopjen and Marten (160 million euros) and De vaandeldrager (175 million euros).
However, the secretary of state considers even the proposed 25 million euros per year still to be too much. Instead, a one-time 19 million euros will be paid into the fund. However, this amount is the repayment of the contribution from the fund to the purchase of Rembrandt’s De Vaandeldrager for 175 million euros. Moreover – contrary to the advice of the Buma Committee – the portion of the fund used for entirely different purposes, such as guaranteeing loans from and to museums, is being increased. Thus, the budget available for the acquisition of works of art is actually decreasing.
The only real increase important to the Collection Netherlands is that of the Individual Acquisitions Grant of the Mondriaan Fund by a total of 8 million euros for the coming years. For the indispensable masterpieces, however, this is no more than a drop in a bucket. After all, the Rembrandts acquired in recent years alone cost 160 and 175 million euros.
The policy letter starts with the approach that private collectors and organizations are essential to the Collection Netherlands. It also points out the importance of patronage for the preservation of art and the functioning of museums, but that is only one facet of collecting. This leads one to expect that a lot will also be done to encourage and support collectors in purchasing at home or abroad as well as in the management and preservation of cultural heritage.
Unfortunately, the rest of the letter does not live up to these expectations. And the fact that works cannot be designated as protected cultural goods after 50 years, but soon after 5 years at most after import into the Netherlands puts this remark in a strange light. In fact, the government focuses merely on knowledge sharing and support. The sharing of knowledge mainly consists of making existing schemes better known and the support consists, for example, of making inventory of collections, which is already mandatory for protected cultural heritage. The most important of these support schemes is the Protected Cultural Heritage grant, which is implemented by the Mondriaan Fund.
Museum Voorlinden in Wassenaar can be seen as an example. It has acquired a large part of its collection abroad and imported it into the Netherlands, as have other Dutch collections such as Museum MORE and The Kremer Collection. How will this work out with the export restriction from 50 years to 5 years? And what help does the new law offer these collectors who have generously enriched the Netherlands Collection by importing many works of art into the Netherlands, but after 5 years they are no longer allowed to leave the Netherlands freely. Is that reasonable and fair?
The governments says virtually nothing about this. The letter emphasizes the preservation of art in the Netherlands, but for a properly functioning Netherlands Collection the import of new art to the Netherlands also remains of great importance, as evidenced in recent years by, inter alia, the high-profile purchases of several Rembrandts and other art treasures by Dutch private individuals and museums. The government does not seem to be sufficiently aware that the intended protective measures will also hinder the import of cultural goods, by discouraging owners of art from exposing their property to the possibility of an export ban shortly after its acquisition, and will therefore decide not to bring their art to the Netherlands, but to leave it abroad.
Given the one-sided commitment to preservation in the Netherlands and not also to acquisition from abroad and what it takes to encourage that, and the many ambiguities about the criteria and procedures to be followed, it would be good if the government were to have these points put in concrete form by a new committee including owners, collectors, museums, art dealers, international auction houses and others with practical experience and expertise in the acquisition and preservation of cultural heritage. Not just an advisory committee that restricts itself to drawing up criteria, as the government proposes, but a third committee, following the previous Pechtold and Buma Committees, with a broader remit.
Do you have any questions regarding this blog? Are you involved in a dispute about the export or import of a work of art? Or do you have any other questions about art and law? Please contact us:
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