In this new series appearing monthly, we discuss the basic legal aspects of working as an artist, freelancer or business owner in the culture sector. It has been drafted exclusively for Contemporary Lynx by Oskar Roesler – founder of Roesler Group, which offers tailor-made legal advice to clients including artists, collectors, galleries and foundations. Their lawyers bring years of experience in corporate law, copyright law and trade agreements pertaining to art dealership.
In this article we will discuss the issues related to a permanent or temporary export of works of art outside Poland. The issue was to a large extent regulated in the Act on Monument Protection and Guardianship (further referred to as “the Act”). The text of the Act is available here:
http://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20031621568/U/D20031568Lj.pdf.
It is comprehensive legislation but we are most of all interested in the provisions laid down in Chapter 5 of the Act. The first thing we will notice is a list of works of art which require a single permanent export permit. Given that, the first positive conclusion we can draw from these legal provisions is the fact that not all works of art require such permit. A table with the requirements which a given type of work of art needs to meet to be subject to the export permit obligations can be found below. Notwithstanding the type of a given work of art, the legislators provided for two criteria, the age and the value of such object. It should be stressed that the export permit obligation occurs if both the aforementioned conditions are met jointly – which means that if a given work of art meets the value criterion, but not the one pertaining to age, the export permit will not be required, and the art work may cross the Polish border relatively freely, without the need to apply for a permit.
TYPES OF WORKS OF ART AND CRITERIA RELATED TO OBTAINING A PERMIT
| No. | Type of work | Age | Value |
| 1. | Archaeological objects forming part of collections of archaeological artefacts, or objects obtained by way of archaeological studies or chance findings. | Over 100 years old | Any value |
| 2. | Elements forming an integral part of architectural heritage sites, interior design, monuments, statues and artistic crafts. | Over 100 years old | Any value |
| 3. | Paintings created with the use of any technique, and on any material, not included in categories in Points 4 and 5. | Over 50 years old | Over PLN 40,000 |
| 4. | Watercolours, gouaches, and pastel drawings, on any material | Over 50 years old | Over PLN 16,000 |
| 5. | Mosaics, not included in categories listed in Points 1 and 2, on any materials and with the use of any technique | Over 50 years old | Over PLN 12,000 |
| 6. | Original graphics and printing plates for graphics, and original posters. | Over 50 years old | Over PLN 16,000 |
| 7. | Original sculptures, statues or their copies made with the use of the same technique as the original, not included in the category listed in Point 1. | Over 50 years old | Over PLN 20,000 |
| 8. | Single photographs, films and their negatives. | Over 50 years old | Over PLN 6,000 |
| 9. | Single manuscripts or manuscripts forming part of a collection. | Over 50 years old | Over PLN 4,000 |
| 11. | Single books or books forming part of a collection. | Over 100 years old | Over PLN 6,000 |
| 12. | Single printed maps and musical scores. | Over 150 years old | Over PLN 6,000 |
| 13. | Collections and items from zoological, botanical, mineral or anatomical collections. | Any age | Over PLN 16,000 |
| 14. | Collections of a historical, palaeontological, ethnographic or numismatic value | Any age | Over PLN 16,000 |
| 15. | Means of transport | Over 50 years old | Over PLN 32,000 |
| 16. | Other historic goods | Over 50 years old | Over PLN 16,000 |
The list refers to a single permanent export permit for a work of art. As regards temporary permits, an additional requirement related to obtaining the document is the proper condition of a given work of art. Moreover, the person who is awarded the permit must warrant that the work will not be destroyed or damaged, and it will be transferred back to Poland before the permit expires. In practice it means that the permit holder assumes liability for any potential destruction or damage of a work and for its return to the country. It is a serious obligation, as any negligence in this respect might also lead to penal liability of such a person, which will be discussed later in the article.
In addition to the criteria provided above for individual works of art, there are also additional conditions which prevent the export of a given work of art altogether, or, in contrast, allow a free export of such works without the need to apply for a permit. An example of exemption from the obligation to obtain a permit is the export of certain works created by living artists. In turn, works of art which cannot be exported from Poland, include, for example, works of art entered in the Heritage Register or in the Heritage Treasure List.
TYPES OF PERMITS
Polish legislators provided for 4 types of permits:
- A single permanent export permit
- A single temporary export permit
- A multiple individual temporary export permit
- A multiple general temporary export permit;
PERMIT APPLICATION PROCEDURE
An additional legal act governing the procedures for applying for an export permit for works of art is the Regulation of the Minister of Culture and National Heritage dated 18 April 2011 on the Export of Monuments Abroad (further referred to as “the Regulation”), which can be found under the following link:
https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20110890510/O/D20110510.pdf.
A single permanent export permit
The permit is issued by the Minister responsible for culture and protection of national heritage. However, we should remember that, pursuant to the Act, the application is filed with the Minister referred to above, but through the agency of Provincial Heritage Protection Officers. Under the Regulation, the application for permit should contain the following elements:
- the applicant’s name, place of residence and address;
- the description of the monument, allowing its identification;
- statement of reasons,
- two coloured photographs of the monument, in a specified format;
- the owner’s declaration stating that the work of art is their property, it is free of any legal charges, and is not subject to seizure under court enforcement laws or under enforcement procedures in administration;
- the applicant’s declaration that the monument is not entered in the Heritage Register, is not part of a public collection owned by the State Treasury, local government entities, or any other organisational units within the public finance sector, and that it is not part of the inventory of museums or national library resources.
After the application is submitted, a Provincial Heritage Protection Officer, or the Head of the National Library will inspect the work of art concerned. The inspection may be held with the participation of experts and with the use of specialist devices. After the inspection, the application is sent by the aforementioned authority to the competent Minister, together with the inspection report attached.
Due to the similarities in the application procedures related to the remaining types of permits, we will present the procedure for submitting an application for a single temporary export permit.
A single temporary export permit
The permit is issued by a Provincial Heritage Protection Officer, and the applications should be addressed to this authority. Under the Regulation, the application for such permit should contain the following elements:
- the applicant’s name, place of residence and address;
- the description of the monument, allowing its identification;
- statement of reasons,
- the identification of a country to which the work is to be exported;
- the identification of the term for which the permit is to be issued;
- the planned date of returning the work of art to Poland;
- two coloured photographs of the monument, in a specified format;
- the owner’s declaration stating that the work of art is their property, it is free of any legal charges and is not subject to seizure under court enforcement laws or enforcement procedures in administration;
Just as in the case of single permanent export permits, the Provincial Heritage Protection Officer inspects the work of art prior to issuing a permit, after which the application may be granted or denied.
If the person applying for the issuance of any of the permits discussed here is not the owner of the work of art concerned, the owner’s consent for export must be attached.
TRANSFER OF WORKS OF ART WHICH ARE NOT SUBJECT TO THE PERMIT OBLIGATION
Although works of art which do not meet the criteria to be subject to the permit obligation may be transferred freely, we should bear in mind that the Border Guard is authorised to inspect the works of art being transported. If it is suspected that the work might require a permit, the Border Guard may demand a document confirming that a given art work is not covered by the obligation to obtain an export permit.
As follows from the Act, the documents confirming that it is not required to obtain a permit include:
- opinion on the time in which the work was created, issued by an authorised entity, as laid down in the Act;
- valuation of the work of art conducted by such entity;
- an invoice, allowing the identification of the work of art. However, only invoices issued by entities which specialise in the trade in cultural heritage assets in Poland are accepted;
- Confirmation of import to Poland, issued by a customs authority or Border Guard,
- Insurance coverage for the transfer of the work of art to Poland from abroad.
- Permit for the export from another European Union Member State;
An example of an institution which may issue opinions required to export works of art abroad is Desa Unicum S.A., an auction house where the price for the service is 3% of the estimated value + VAT, no less than PLN 100 net.
In turn, as regards the export of a work of art by a living artist, the Act does not stipulate what evidence we could provide to prove that the author of the work we wish to export abroad is still alive. The attempt to define such document was made by the Provincial Heritage Protection Office, which indicated that we should obtain a statement from the artists themselves. The problem is that the Office failed to indicate what the content of such statement should be. It is not certain how we should prove that the artist is alive as at the time the work of art crosses the border, and not as at the time of making such statement. Due to the above practical issues, citing this fact involves certain risk. If there are circumstances allowing the export of a work of art without a permit (e.g. the age criterion), we recommend referring to a premise which can be proven on the basis of a relevant expert opinion.
Given the above, it is advisable to arrange for obtaining an appropriate document before exporting works of art abroad, especially if you wish to refer to the age or price criteria. This will allow you to avoid potential stressful situations at the border crossing, bearing in mind that, in a situation when no such supporting document can be provided the Border Guard is authorised to retain the work of art until it is found that the export is compliant with the applicable legal regulations. It is particularly important in the case of works of art which at first sight might seem to be subject to the obligation to obtain a permit.
INFORMATION OBLIGATIONS
If you obtain any of the temporary export permits for a given work of art, you need to remember about the obligation to inform the Provincial Heritage Protection Officer about transporting the work of art back to Poland, within 14 days after the permit expires, and in the event of returning the work to Poland after the term of the permit, within 14 days of transporting the work of art back to Poland.
LIABILITY
The failure to fulfil the obligation defined above involves a mandatory administrative fine of up to PLN 2,000.
The fines for exporting works of art without a permit, or failure to return the work to Poland after the temporary permit expires is a criminal offence and is punishable by imprisonment of 3 months to 5 years, and in the event of unintentional acts, up to 2 years. An additional penalty is the possibility to adjudge the forfeiture of the work of art, also in the event where the perpetrator is not the owner, but, for instance, a gallery whose owner provided access to the work, and which violated the provisions governing the export of works of art from Poland.
Given the above, we recommend that you strictly adhere to the time limits indicated in the permits, and store documents which would constitute proof of the possibility to export a work of art in the widest extent possible.
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All materials published on this website are made available for reference purposes only and as such mustn’t be treated as tantamount to legal advice on any specific matter. We nonetheless make every effort for this information to be complete, accurate and up-to-date.
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