What do you need to know before exporting a work of art located in Poland?

Export of a work of art, either temporarily or permanently, requires a special permit, provided that certain criteria are met. Failure to receive such permit before exporting is considered a criminal offence and the perpetrator may be subjected to criminal liability.

A work of art, cultural object, monument

The Polish Act on protection and care of monuments regulates the legal protection of monuments and works of art located in Poland. According to the Act the term “monument” is to be understood in a broad sense. It may be any object either created by humans or connected to their activity, which may be regarded as a testimony of the past or a particular historic event, the preservation of which should be pursued due to its historical, artistic or scientific value.

It encompasses all sorts of cultural and historic objects, paintings, sculptures, graphic material, archeological findings or any other similar works of art. The Act introduces various forms of protection. In particular, entry into various registers and lists of items of exceptional historical value. If a given work of art has been entered into such register, then rights of disposal and ownership – particularly with regards to export – are substantially limited. It is though possible to obtain a permit to export a work of art – for instance for the purposes of the exhibition in a foreign museum. Temporary export is in general less problematic.

Important thresholds

What is crucial, some works of art, which do not appear in any special protection register, are also subjected to restrictions limiting an owner’s right of disposal. Whether a given piece is affected by these restrictions depends on joint fulfillment of two criteria: age and value. In case of most work of art and monument categories the age threshold is between 50 and 150 years and the value threshold usually does not exceed tens of thousands PLN. For instance, a permit to export a painting is required if it is over 50 years old and its value exceeds PLN 40 000 (approx. € 9 000). If a given artwork fulfills only one of the two criteria, the restrictions do not apply and no special permit is required.

How to obtain a permit?

Permits for works of art are issued by Minister of Culture and National Heritage. An application must be submitted through a regional monument conservator. It should contain personal data of an applicant, data and photographs of the work of art as well as a short statement why one needs a permit. In some cases an additional owner’s or holder’s statement regarding legal issues and responsibility may be required.

Before one’s application is accepted, the regional monument conservator or the director of the National Library delegates a commission to examine the work of art. The Act on Protection of Monuments provides grounds to deny granting a permit in case that a given work of art is of exceptional value to the cultural heritage. If a permit has been issued, it is valid for 12 months following the issuance.

Border and customs inspection – what should you keep in mind?

In some cases it is difficult to determine whether a given work of art fulfills the legal criteria and requires a special permit. During a border inspection a Border Patrol or Customs Officer is obliged to examine a transported work of art with regards to its  age and value. In case of doubt the officer may demand special documentation which enables them to identify the object and specifies how much the work of art is worth.

This is why one needs to take care of such documentation before exporting a work of art. Pursuant to the regulations the supporting documentation may consist of:

• estimation of the work of art’s age made by specialized culture institution or a professional private entity;

• evaluation of the work of art’s value;

• invoice providing exact information on the work of art;

• confirmation of entry on the Polish territory;

• permit issued by a foreign authority.

Criminal liability for illegal transportation of works of art

Failure to comply with the regulations on transportation of works of art abroad is penalized. It is subject to imprisonment from 3 months to 5 years. If the perpetrator acted unintentionally they may be given either a fine or a penalty of restriction of liberty or imprisonment up to 2 years.

Restitution of National Culture Goods

In the context of works of art protection the issue of Culture Goods Restitution must be addressed. It may be of importance in the case of unlawful export. The Act on Restitution of National Cultural Goods, introduced to Polish law in 2017, implements the EU Directive 2014/60/EU on the return of cultural objects unlawfully removed from the territory of a Member State. Its main goal is to create an effective restitution system of cultural goods and to protect the national heritage from theft and illegal exportation.

The Act introduces many instruments to serve this cause. Among others it regulates basic mechanisms of proceedings concerning restitution of goods in cooperation with other countries. Moreover, the Act introduces regulations limiting legal implications of criminal activity. For instance the possibility of acquiring a work of art in good faith by a third party. It implements also a range of penal regulations concerning actions aimed at hindering the restitution proceedings.

What it all comes down to is that works of art, which are considered unlawfully exported abroad, may be subjected to restitution back to Poland. Settling legal issues carefully before the journey is thus of utmost importance to a work of art’s owner.

Summary

The most important thing in the context of export of works of art is to be aware of the legal restrictions imposed on owners and holders of cultural goods. One may need to have either a special permit to export a work of art or documentation confirming that there is no need to have it. An attempt of illegal export may be subjected to criminal liability. Even if a work of art is successfully exported, it may be subject to international restitution proceedings anyway. It is therefore advisable to get duly prepared before one decides to transport it outside Poland.

Tomasz Piejak, trainee attorney-at-law, and Wojciech Jaranowski, Private Client Practice, GWW