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Restrictions on the export of cultural property and artwork in The Netherlands

A report by the IBA Art, Cultural Institutions and Heritage Law Committee, Dec 2020




Written by Pieter H Ariëns Kappers of Bavelaar & Bavelaar Advocaten and & Rechtsanwälte in Amsterdam & Laurens W Kasteleijn, Managing Director of Art Law Services in Amsterdam


A. Protection of cultural property


1. What are the key characteristics of your country’s regulations on cultural heritage and

national patrimony?


In 2016, the new Heritage Act (Erfgoedwet) came into force. It integrated various rules and

regulations into one single Act, including the former Cultural Heritage Preservation Act 1984,

the Dutch Monuments Act 1988 and the Convention Implementation Act 1970. The main

purpose of the Heritage Act is to prevent loss of access through export to objects significant to

the cultural history of the Netherlands. Predominantly privately owned objects are protected.

Objects in public collections are not included since they are already regarded as protected. If

an object is listed in the Heritage Act inventory of the Dutch Ministry of Education, Culture

and Science (the ‘Ministry’), it cannot be exported without a permit.


2. Under your national law, which criteria must be met in order to classify goods as

cultural property?


In the Netherlands, the Heritage Act defines movable cultural objects of national cultural

relevance as something irreplaceable and indispensable for the cultural heritage of the

Netherlands. Protected cultural objects are defined by the Heritage Act as:

• objects or collections which have been granted protected status by the Minister of Culture

based on various criteria;

• objects from public collections of institutions such as museums, archives and libraries;

• objects from ecclesiastical collections;

• protected historic buildings and monuments and parts of them;

• archives; and

• unlawfully excavated archaeological objects.


3. What are the legal consequences arising from classifying an asset as cultural property?

Does the classification of a private asset as cultural property affect the right of ownership?


If an object is listed in the Heritage Act inventory of the Ministry, it cannot be exported

without a permit. At present, according to the Ministry, more than 150 objects and around

31 collections (with thousands of items) are listed. For temporary export of a listed object outside the European Union, for instance, on loan for a foreign exhibition, a permit from

the Ministry is required. Any transfer of listed objects in ownership or relocation within

the Netherlands is subject to notification to the Inspectorate. A failure to notify qualifies as

an economic crime. Sale of a listed object to a foreign party is not invalid but any transfer

abroad requires a permit. If an object has been brought to another EU Member State without

a permit, the Netherlands can start proceedings for the return of the listed object under

Directive 2014/60/EU on the return of cultural objects unlawfully removed from the territory

of a Member State.


Archaeological objects from excavation sites are protected against the risk of being (illegally)

removed or transferred or being stolen. When nobody can prove ownership otherwise, the

ownership of objects excavated from a site protected under the Heritage Act goes to a public

authority (city, province or state). It is therefore important when purchasing archaeological

finds in the Netherlands to check their provenance. Violations of the Heritage Act are

prosecuted under criminal law.


4. Which authorities in your country define cultural property and who advises these

authorities?


The Dutch Ministry of Education, Culture and Science defines ‘cultural property’, advised

by the Information and Heritage Inspectorate (Inspectie Overheidsinformatie en Erfgoed),

which is governed by the Ministry.


5. Has your country ratified the 1970 UNESCO Convention on the Means of Prohibiting and

Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, and

what are the main features of the national implementation?


The Netherlands is a party to the 1970 UNESCO Convention on Prohibiting and Preventing

the Illicit Import, Export and Transfer of Cultural Property.

The Dutch Act ratifying and implementing the UNESCO Convention was enacted in 2009

by the Dutch 1970 Convention Implementation Act. This act has been integrated into the

Heritage Act in Chapter 6, paragraph 1. It designates as Dutch cultural property the objects

protected by the Heritage Act.


6. Has your country ratified the 1995 UNIDROIT Convention on Stolen or Illegally Exported

Cultural Objects, and what are the main features of the national implementation?


The Netherlands concluded that the UNIDROIT Convention was not suitable for ratification.

The Netherlands reasoned that the 1970 UNESCO Convention provided greater scope, for

example, to adopt the basic principles of the UNIDROIT Convention. The Heritage Act is

partly based on the same principles as expressed in the UNIDROIT Convention.


7. Has your country ratified any other international conventions or bilateral agreements

relating to the export of cultural objects?


The United Nations Security Council and the EU have taken measures to protect the cultural

heritage of Iraq and Syria. Due to the conflict situations in both countries, the cultural

heritage is under serious threat, which leads to illegal excavations, looting and destruction.

The Netherlands has implemented these measures by means of the Iraq Sanctions Order (II)

(2004) and the Syria Sanctions Order (2012). The import of any cultural good from either

Iraq or Syria into the EU is strictly prohibited, as is any trade in cultural goods which are

known or may reasonably be assumed to have been unlawfully removed from these countries.


B. Restrictions on the export of cultural property and artwork


1. What are your country’s export restrictions regarding cultural property and artwork?


Apart from the protective measures in the Heritage Act and the 1970 UNESCO Convention, the

Netherlands strictly applies the EU requirements that certain cultural objects in EU Member

States can only be exported outside the EU with an export licence. Whether a licence is

required depends on the thresholds for value and age and the category of the cultural property,

which apply in all EU Member States under Council Regulation (EC) No 116/2009.

Works of art containing parts of endangered species may have limitations placed on their

export, or require export licences based on the Convention on International Trade in

Endangered Species of Wild Fauna and Flora (CITES) ratified and entered into force in the

Netherlands in 1984. Antique objects containing ivory may only be sold and transferred in the

Netherlands when they are ‘pre-1947 specimens’ and accompanied by an expert certificate

or statement confirming that the object predates the 1947 threshold including a clear

description and at least one photo.


1.1 Under which conditions is export permission granted?


Since 1 January 1993, a licence has been required for temporary or permanent export

of specific categories of cultural goods in EU Member States to a destination outside

the EU.


Cultural objects are divided into 15 categories, which are standardised throughout the EU.

Each category has certain age and value thresholds. The full list with relevant categories,

descriptions, value thresholds and custom codes including a practical brochure has

been published by the Dutch Cultural Heritage Inspectorate on its website.


1.2 Which authority grants such export permission and who advises this authority?


The Tax Department/Customs – Central Office for Import and Export (CDIU or

Centrale Dienst In-en Uitvoer), advised by the Information and Heritage Inspectorate.


1.3 What does the proceeding look like, who are the parties to the proceeding and what

is the duration of the proceeding?


Export licence application forms can be requested from the CDIU. The application

must be accompanied by one or more photographs and all relevant documentation to

confirm the age, value, provenance and legal ownership of the object concerned.

The Information and Heritage Inspectorate will use the completed form received by

the CDIU to determine whether an export licence is in fact required for the objects

in question. The applicant will be informed if no licence is required. A determination

will also be made as to whether the goods are protected cultural heritage of the

Netherlands or any other of the EU Member States. The Information and Heritage

Inspectorate may require that an object be examined before a licence is granted.

When there is no objection to export, the CDIU will provide the applicant with two

copies of the export licence, based on the information in the application.

The lead time per licence is on average 14 days. The duration for issuing a licence

(from application to issue or decision) is normally up to eight weeks, but as of 2019,

due to the fact that the Inspectorate more often seeks independent advice before

deciding on a permit application, the processing of an application takes longer than

the usual decision period of eight weeks. In 2019, a total of 347 export licences have

been granted for the export of cultural objects outside the EU.


1.4 Are there any monetary thresholds (de minimis)?


The full list with relevant categories, descriptions, value thresholds and custom codes

including a practical brochure has been published by the Information and Heritage

Inspectorate on its website (https://english.inspectie-oe.nl).

There are no monetary thresholds for archaeological object more than 100 years

old. The same applies for elements forming an integral part of artistic, historical or

religious monuments, which have been dismembered, of an age exceeding 100 years.

There are also no monetary thresholds for incunabula and manuscripts, including

maps and musical scores.


For watercolours, gouaches and pastels or mosaics, executed entirely by hand in any

medium and on any material, a threshold of €3,000 applies.


For pictures and paintings, other than watercolours, gouaches and pastels or mosaics,

executed entirely by hand in any medium and on any material, a threshold of

€150,000 applies.


For original engravings, prints, serigraphs and lithographs with their respective

plates and original posters, photographs, films and negatives thereof, a threshold of

€15,000 applies.


Books more than 100 years old, singly or in collections, original sculptures or statuary

and copies produced by the same process as the original, other than those in the first

category, a threshold of €50,000 applies.


Other categories and thresholds may be found on the aforementioned website of the

Information and Heritage Inspectorate.


1.5 Does the circumstance of the artist still being alive or the time of creation of the

artwork matter?


It does not make a difference if the artist is alive or not. For some objects, the time of

creation matters, see the response to question B.1.4 above.


2. Is the state obliged to buy out the artwork for which an export permission was denied?


When the Ministry denies export because of a (intended) sale, the Dutch State will at the

same time make an offer to purchase the listed object. If the Dutch State and the owner of the

listed object do not agree on the price, the District Court of The Hague has jurisdiction to fix

a price. If the price is too high for the State, the object can be exported.


3. Are there any exceptions to these regulations (eg, temporary export for exhibitions,

conservation or private reasons of the owner)?


For the intention of exporting a specific object on a temporary basis, it is possible to apply for

a ‘specific open licence’.


C. Consequences in case of violation of export restrictions; restitution and repatriation of illegally exported cultural property


1. What are the legal consequences in case of breach of export restrictions?


A breach of export restrictions can be considered as an economic crime if done intentionally

and is, therefore, punishable by imprisonment of up to two years or community service or a

fine of up to €21,750. If not done intentionally, it is considered an offence and is punishable

by imprisonment of up to six months or community service or a fine of up to €21,750.


2. Give a description of the regulations and practices in your country relating to the restitution

and repatriation of illegally exported cultural property


The return of cultural property imported into the Netherlands in breach of the prohibition

may be claimed, subject to section 1011(a)–(d) of the Code of Civil Procedure (Wetboek van

Burgerlijke Rechtsvordering), by proceedings brought by the state party from which the property

originates or by the party with valid title to such property.


If an object has been brought to another EU Member State without a permit, the Netherlands

can start proceedings for the return of the listed object under Directive 2014/60/EU on the

return of cultural objects unlawfully removed from the territory of a Member State.


3. Under which conditions does your country assist foreign countries seeking repatriation of

cultural property/artwork?


Directive 2014/60/EU stipulates the restitution of cultural goods which, given national rules,

may not leave the territory of a Member State. In the Netherlands, these cultural goods are,

for instance, the objects that are protected by the Heritage Act, in addition to objects from

public collections of museums, archives, libraries and religious institutions.

The Directive applies to cultural property that has been illegally exported from 31

December 1992. Legal proceedings by Member States are contained in the Dutch Code of

Legal Procedure. The Information and Heritage Inspectorate is the authorised institution

and considers requests including custody based on this Directive. The court will decide on

any claim.


4. Does a buyer enjoy protection against restitution claims for violation of foreign export

restrictions?


Cultural property that has been brought into the Netherlands in breach of this prohibition

may be reclaimed by the state party from which the property originated or by those with

valid title to that property. Legal proceedings for the return of the property are contained in

the Dutch Code of Civil Procedure. Defences to those proceedings based on acquisition in

good faith, acquisitive or extinctive prescription or acquisition of a pledge in good faith are

suspended in whole or in part.

When there is reasonable suspicion that cultural property found by authorities has been

obtained in breach of the prohibition, it can be taken into custody.


5. Which regulations exist for the protection of the buyer against title claims in general?


The general rule is that a buyer of a movable object who acquired it in good faith from a

seller, who was not authorised or qualified to sell or transfer, is protected against title claims

and the transfer will be deemed valid. ‘Good faith’ means that the buyer neither knew nor

ought to have known (reasonably could have known) that his predecessor was not qualified to

sell or dispose. A transfer for no consideration is not protected. There are several exceptions

and the law with regard to time limitations is extensive and complicated.


6. Does a lender from abroad enjoy protection against seizure of items on loan to local

exhibitors if the good fails to have proper export licence?


In this respect, a difference must be drawn between private property and cultural objects

owned by a foreign state. Articles 436 and 703 of the Dutch Code of Civil Procedure forbid

both executory and precautionary seizure of goods intended for public service. On the basis

of international (customary) law, applicable through Article 13a of the General Legislative

Provisions Act, cultural goods owned by a foreign state that are on loan in the Netherlands

for an exhibition are considered to be goods intended for public service. Therefore, these

cultural goods are protected to a large extent.


On the basis of Article 3a of the Court Bailiffs Act, a bailiff is required to contact the Ministry

of Justice before acting to make sure international law is not incompatible with imminent

seizure. Occasionally, the Dutch State issues on request a notification which states that

everything will be done to protect the cultural objects owned by a particular state from being

encumbered while on Dutch territory.


However, these measurements are not foolproof because immunity from seizure does not

mean immunity from jurisdiction. Legal proceedings cannot be excluded. Privately owned

works of art are not protected by this legislation.


7. What regulations exist concerning the import of cultural property that may have been

exported illegally from its country of origin or that is the subject of claims?


The Heritage Act applies to cultural property illegally exported from, or unlawfully

appropriated in, a state party from 1 July 2009. The legal proceedings for return and the

right of defence are contained in the Dutch Code of Civil Procedure. The court will decide

on any claims.


D. Due diligence obligations


1. What general due diligence is required from the seller/buyer of artwork?


The sale of a work of art is governed by the general rules of Dutch law applicable to the sale

of movable goods not subject to registration. A successful claim in court to vitiated consent,

such as error, threat, fraud or abuse of circumstances leads to annulment of the agreement.

To prevent the risk of a successful claim it is important that the seller not only gives correct

but also sufficient information. The buyer should have a ‘correct idea of the state of affairs’.

This criterion must be approached with reasonableness and fairness. However, apart from

‘own opinions’ and/or ‘sales talk’, the buyer should be able to rely on the information

given by the seller. In accordance with the Dutch Civil Code, goods sold and transferred

must be in conformity with the purchase agreement. Good faith on the part of the seller is

not relevant in this instance. Good faith can be relevant in a claim for damages on the basis

of an unlawful act.


To define the due diligence required, it is also important to know if the seller is aware of

certain facts and knows, or ought to know, that this is of importance to the buyer when

concluding an agreement. The courts will decide case by case, based on facts, circumstances

and the principles of reasonableness and fairness what level of a seller’s due diligence is

required. Other facts and circumstances may also be of importance to the due diligence of

the seller, such as the expertise of the parties and the price. A professional buyer has a greater

duty to inspect and a professional seller has a greater duty to inform.


2. Are there any anti-money laundering regulations applicable in the art trade and at art

auctions?


The Anti-Money Laundering and Anti-Terrorist Financing Act (Wet ter voorkoming van

witwassen en financieren van terrorisme or ‘Wwft’) entered into force on 1 August 2008,

implementing the EU’s Third Anti-Money Laundering Directive into Dutch national law.

As of 21 May 2020, the Wwft has been modified to implement the EU’s Fifth Anti-Money

Laundering Directive. The Wwft provides a comprehensive set of measures to prevent use of

the financial system for money laundering or terrorist financing. Institutions are responsible

for doing their own client assessment, before and during the business relationship. Whereas

art dealers must, in principle, comply with all client assessment measures, the intensity with

which measures are applied can be adjusted to the risk posed by a certain type of client,

relation, product or transaction. Payments (in cash or cashless) surpassing €10,000 triggers an

extensive client screening and potentially the transaction must be reported to the Financial

Intelligence Unit, in accordance with the Wwft.


For more info or any other questions on art law, please contact us at: Laurens.Kasteleijn@artlawservices.com

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