'Topstukkendecreet' amended

Published on 08/09/2014

News alert : Flemish Government’s amended Topstukkendecreet is now published

In March 2014 we published a news alert concerning the proposed modification of the Topstukkendecreet. This modification was adopted and published on 27 August 2014 in the Belgian Gazette (Moniteur belge) (Decree of 25 April 2014 amending the previous Topstukkendecreet as well as the Council Regulation No 116/2009 of 18 December 2008 on the export of cultural goods). The date for the entry into force of the new decree depends on the Flemish Government.

Hereunder you can find again our summary of the new Decree:

In its former form, the Topstukkendecreet only protected those items which are registered on the list of items of exceptional importance for the Flemish Community (the List).

The new decree extends the scope of items of exceptional importance (‘topstukken’) to all cultural property items which are rare and irreplaceable, whether or not registered on the List. The main implication of the amendment is that the no qualifying item, whether registered or not, can leave the Flemish Community without obtaining the prior authorisation from the Flemish government. If the export is refused, the Flemish government must make (or procure a third party to make) an offer to purchase the item at the international market price. In this respect the new decree will offer the same guarantees to owners to avoid that their property is non-exportable or suffers a decrease in value by reason of its status as item of exceptional importance. The former exceptions to listing (such as when an item has been in the Flemish Community for less than 5 years) will also be available to determine whether authorisation can be refused or not.

The new decree offers a remedy to the former hiatus in the Topstukkendecreet where items of exceptional importance which are unknown, for example because they belong to a private collection, could be exported without giving the opportunity to the Flemish Government to protect and possibly acquire them. With the amended decree, this risk is reduced without imposing an excessive administrative burden by extending the scope to other categories of cultural assets.

It is basically up to the owner to determine whether a cultural property item he owns is rare and irreplaceable and thus of exceptional importance for the Flemish Community. The new decree provides a number of criteria to make the test. It also gives the owner the opportunity to apply for a ruling on the topstuk-value of a particular item.

The new decree further creates a legal framework for the issue of EU export licences in accordance with the European Regulation concerning the export of cultural goods. Today these licences are issued in direct application of the Regulation. The new decree makes it a criminal offence to take a cultural good out of the European Union without export licence.

The Flemish authorities can order the return of items of exceptional importance or cultural goods (within the meaning of the EU Regulation) taken out of the Flemish Community without prior authorisation or export licence, as the case may be, on the basis of the EU Directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State or the UNESCO 1970 Convention.

This newsflash is offered by way of general information ; its content does not constitute and may not be considered as legal advice. For more information on the subject  please contact us at info@lambrechtlaw.be.