Legal aspects of exporting antiquities
The assessment of the special value for the cultural heritage of an item is arbitrary, because there is no precise definition of this issue.
Selling works of art abroad can be a chance to make more money than in domestic transactions. Polish law, however, limits this possibility.
So what should be done to obtain the necessary permission and legally export the monument from Poland?
Special protection
According to the law, a monument is, among other things, a movable thing that has historical, artistic or scientific value and is a testimony of a bygone era. This definition is undoubtedly broad and includes many works of art. The value and date of creation of a work of art, being a monument, are crucial to its ability to be exported permanently abroad and therefore sold. This applies to paintings, sculptures, as well as drawings or photographs. For example, a work of painting that is more than 50 years old and whose value at the same time exceeds 40,000 zlotys requires a special permit for permanent export abroad. Consequently, works of contemporary art from the post-war period may also meet these requirements, which limits their circulation.
The first step is to apply to the local provincial monument conservator for a permanent export permit. The application is subject to a fee of PLN 100 and must include the data of the person applying for the permit, a description of the monument and a justification. The applicant must also submit a statement that the monument is his property, and if it belongs to another person – the owner’s consent to export. After checking the set of documents, officials inspect the monument, from which a protocol is drawn up. The entire documentation is then transferred to the Department of Historic Preservation at the Ministry of Culture and National Heritage. This is because it is the minister in charge of culture who substantively examines the application and decides whether to issue a permit or refuse it.
The minister is obliged to refuse to issue a permit if the monument covered by the application is, among other things, included in the register of monuments or on the Heritage Treasures List or in the inventory of a museum. These circumstances are investigated by the authority ex officio to prevent the export of the most valuable monuments from the country. If the monument is not listed in any of these registers, the minister is not required to issue a refusal.
However, this does not mean that permanent export permits are automatically issued in other cases. Indeed, the minister may refuse to issue a permit if the monument has special value for cultural heritage. It is worth noting that even the minister’s recognition that the monument has such value only creates his power, not an obligation, to issue a refusal. However, it is problematic to determine what the “special value for cultural heritage” of a particular monument actually is, since no legal provision defines this concept. This issue, however, determines in practice the possibility of obtaining an export license and, consequently, the sale of a work of art of not inconsiderable value. Any interpretation of this premise can lead to an arbitrary refusal to issue a permit, which drastically restricts the right of ownership of a work of art. Indeed, inherent in the right of ownership is the owner’s ability to freely dispose of its object.
Consequently, in order to protect the owner of a monument from arbitrary assessment of the issue of its “special value for cultural heritage,” it should be referred mainly to works that are widely recognized and have the greatest and undisputed historical value. However, in the practice of processing permanent export permit cases, officials of the Ministry of Culture and National Heritage associate “special value for cultural heritage” with a number of other circumstances. First, in fact, the basis of the decisions issued is not only the monument’s links to national heritage (such as the “Battle of Grunwald”), but also the links of the creator himself, or even the owner, to the history of the country and the lives of citizens. In this regard, the very biography and life experiences of the creator of the work may be crucial to the motives behind the decision issued. Secondly, both the unique artistic qualities of the work and its special significance to a particular field of art, together with its representativeness on a global or national scale for a given period, are taken into account. This creates, in practice, the possibility of issuing a refusal if the monument is characterized precisely by its exceptional nature in comparison with other works from the period in question. Thirdly, the possibility of depletion of the Polish collection as a result of the export of the monument permanently abroad is important in the application procedure. Thus, the minister may invoke the premise of depletion of Polish collections as a basis for issuing a refusal, despite the fact that, paradoxically, the monument covered by the application is itself private property.
Questionable practice
The above practice of the Ministry of Culture and National Heritage raises legal questions, since the criteria used do not derive from any legal provision. In other words, the legislator has not made the possibility of issuing a refusal conditional on the fulfillment of three specific criteria, which are nevertheless applied in practice by officials. In light of the principle of public authorities acting on the basis of and within the limits of the law, one would be inclined to a narrow understanding of “special value for cultural heritage,” so that the property rights of works of art are not restricted without an explicit legal basis. However, the Ministry itself does not indicate whether it is sufficient for a monument to meet one, two or only all three applicable criteria for the possibility of issuing a refusal.
However, elements such as the participation of the owner of the monument in the promotion of the artist’s work or the chance to promote Polish culture in the world remain outside the scope of the case evaluation. This is because it should be borne in mind that applications submitted for export permits often aim to place the monument in prestigious foreign museums, which would create an opportunity to spread Polish culture to foreign audiences.
Expert witnesses play an important role in permanent monument export permit cases. In the course of each case, the Ministry of Culture and National Heritage usually appoints two to four experts, whose task is to give an opinion on whether the monument has “special value for cultural heritage.” The appraisers analyze the monument in terms of the criteria used by the Ministry, and the opinions are characterized by terminology specific to the art critic community. It is therefore worthwhile to prepare yourself for a possible polemic against the conclusions of the experts, which are often the basis of the decisions issued, in order to be able to successfully apply for a permit. If possible, it may be important to obtain on one’s own a private opinion, that is, one issued by an expert other than the one appointed in the case.
It is also advisable to “arm yourself with patience,” because in practice, permanent export license proceedings take from one to two years. However, this does not correspond to the time limits for case consideration provided by the Administrative Procedure Code, which indicate a maximum of two months within which a decision should be made.
What to do after getting the decision?
It is also worth remembering that the permanent export permit, if obtained, is valid for 12 months from the date of its issuance. If a buyer for the work abroad cannot be found within this time, it will become necessary to submit another application and restart the entire procedure. It is absolutely necessary to keep this in mind, since it is a crime to export an antique abroad without a permit.
If the Ministry of Culture and National Heritage issues a denial, there is the possibility of both a request for reconsideration and a possible complaint to the provincial administrative court.
Article published on April 28, 2021 on the Rzeczpospolita portal (URL: https://www.rp.pl/opinie-prawne/art158201-mateusz-omelan-prawne-aspekty-wywozu-zabytkow)
