On Thursday, 10 February 2022, after two and a half years of legislative procedures, the Parliament voted into law the new law on cultural heritage (the "Law").
According to its drafters, the Law pursues a three-fold objective:
- consolidate into a single text the provisions on "cultural heritage", a concept which combines archeological heritage, architectural heritage, real estate heritage and intangible cultural heritage;
- implement the provisions of international texts ratified by Luxembourg as well as several European cultural heritage texts;
- modernise certain rules on the conservation and protection of cultural heritage.
The Law is mainly formulated around four principal themes: archeological heritage, architectural heritage, real estate heritage and immaterial cultural heritage, which we examine successively below.
The first part of the Law deals with the protection of archeological heritage, which the Law defines as "vestiges, movable and immovable property, and other traces of the existence of humanity in the past, the conservation and protection of which is in the national public interest (…) and the study of which allows the retracing and development of life, history, humanity and their relationship with the natural environment".
The main innovations introduced by the Law are the creation of the concept of an "archeological observation zone" and of an "archeological observation sub-zone", as well as the enshrinement of the principle of "preventive archeology".
Concretely, the National Archeology Research Center, renamed the National Archeological Research Institute (Institut National de Recherches Archéologiques or "INRA"), has been taked with mapping zones in which elements that are part of the archeological heritage have already been detected, the archeological observation zone, and zones for which there is no data allowing the exclusion of any archeological potential, the archeological observation sub-zone.
The basis for the archeological observation zone and the archeological observation sub-zone shall be determined by a future Grand-Ducal Regulation.
In both zones, all construction, demolition, embankment and excavation work subject to a permit must be submitted by the project owner (maître d’ouvrage) to the Minister of Culture (the "Minister") for assessment of its impact on the archeological heritage by the latest when the permit request is filed.
This assessment is not necessary in the archeological observation zone for project implementing an "existing neighborhood" specific urban development plan (plan d’aménagement particulier) with a ground surface area of less than 100 square meters and a depth of less than 0,25 of a meter, as well as for urgent infrastructure works.
Neither is the assessment necessary in the archeological observation sub-zone, for projects implementing an "existing neighborhood" specific urban development plan with floor space of less than 3.000 square meters and a dept of less than 0,25 of a meter or an "existing neighborhood" specific urban development plan with a surface area of less than 10.000 square meters, as well as for sewage treatment and existing road network projects.
In all other cases, the Minister can stipulate that there be archeological diagnostic operations, preventive archeological digs, or the release of archeological constraints, depending on the archeological interest of the land
If the Minister imposes preventive archeology operations, the duration of which cannot normally exceed six (6) months, the Law provides that the contractual and administrative deadlines shall be suspended starting from the receipt by the project owner of the ministerial stipulation up until the end of the operations in question.
In case of an "exceptional discovery" of items that are part of the archeological heritage, the Minister may extend the duration of the digs up to a maximum of five (5) years, in which case the project owner has the right to a compensatory indemnity payment to be set by mutual agreement by the administration and the project owner, otherwise to be determined by the courts.
From the outset, it may be noted the almost systematic obligation to perform an impact assessment risks in any case leading to an extension of the permitting procedures, while the Site and Monument Commission (Commission des Sites et Monuments) deems that the preventive archeology methods should permit the avoidance of unplanned and costly halting of construction.
The Law also provides that the INRA may automatically carry out scheduled archeological operations, even when the owner of the land has not filed a construction, demolition, embankment or excavation permit request.
The person who is supposed to bear the costs generated varies depending on the type of operation carried out:
- archeological diagnosis: 100% borne by the project owner;
- preventive archeology operations: 50% borne by the project owner, 50% borne by the State;
- scheduled archeological operations: 100% borne by the State.
Despite the strong criticism from the construction sector, the drafters of the Law have maintained the principle of the project owner’s total or partial bearing of the costs related to diagnostic operations or preventive digs.
It would seem obvious that the extra cost created by this new legal obligation is to be passed on to the final buyers, something which will inevitably lead to a new increase in the prices of real estate that can be developed in the zones concerned.
Finally, the Law provides that the Minister has the option of national cultural heritage classification – the consequences of which we will examine in the section below – of archeological heritage movable and immovable property which has been updated during the dig operations.
Secondly, the Law deals with the protection of architectural heritage.
In that regard, the drafters of the Law initiated a paradigm shift with respect to the prior situation, whereas the building protection procedure, which was previously undertaken building by building, will henceforth concern a group of buildings which will be protected by Grand-Ducal Regulations, municipality by municipality.
More specifically, the new National Institute for Architectural Heritage (Institut national pour le patrimoine architectural or "INPA"), originating from the National Monument and Sites Service (Service des Sites et Monuments Nationaux or "SSMN"), the legal powers of which are amended by the Law, shall be charged with establishing "an inventory of architectural heritage for one or several municipalities, identifying with precision and by means of relevant documentation the immovable property that is part of the architectural heritage and which may be classified as of the national cultural heritage of which could be part of a protected sector of national interest".
These "protected sectors of national interest" constitute zones combining one or several buildings classified as part of the national cultural heritage which must allow urban development of the surroundings of the classified property with a view to ensuring architectural, urbanistic and landscaping consistency of its entirety.
To be able to be inventoried as a immovable property that could be classified as part of the national cultural heritage, the building in question must be original in that it has had few modifications, and retained the features of its era.
It must also be "representative and significant" with respect to at least fourteen (14) of the criteria listed by the Law (for example: rarity, period of development, military history, etc.).
The inventory of the architectural heritage related to one or several municipalities, as well as the details of the zones potentially considered for the creation of protected sectors of national interest, are proposed by the Minister after the agreement of the Council of Government.
The architectural heritage inventory and, as applicable, the file dealing with the protected sectors of national interest shall then be transmitted to the municipality or municipalities concerned for the purpose of the public hearings, and published by the Minister in an electronic format accessible to the public.
Any potential complaint or observation against the inventory or the proposal to create a protected sector of national interest must be submitted electronically or sent to the mayor and city council members of the municipality concerned with in forty-five (45) days following the publication of the documents in electronic format indicated in the preceding paragraph, under penalty of lapse of the right to assert such complaint or observation.
The classification of the property covered in the inventory and the creation of protected sectors of national interest is effectuated by the adoption of a Grand-Ducal Regulation after receiving the opinion of the State Council.
The transition from an individual classification system to a regulatory procedure is extremely harmful from the perspective of the rights of the owners of the property the classification of which is contemplated or which is included in a protected sector of national interest.
This change effectively results in the inapplicability of the Law of 1 December 1978 regulating the non-contentious administrative procedure and its implementing regulation, which until now ensured individuals several procedural guarantees, in particular the right to be individually informed by registered mail of the reasons justifying the classification proposal.
This substantial modification has all the more impact given that as soon as the architectural heritage inventory and potential file on protected sectors of national interest are published, a portion of the effects of classification shall apply immediately to the buildings concerned.
The classification of a building results in numerous restrictions on property rights, including:
- all general works whatsoever on classified property, except for purely conservational works, are prohibited without the Minister’s prior authorisation;
- no new construction can be undertaken on the classified building without the Minister’s prior authorisation; and
- no agreed easement may be established on the property without the Minister’s prior authorisation.
In case of sale, leasing or location or undertaking to sell (promesse de vente) or lease of real estate property classified as part of the national cultural heritage or included in a protected sector of national interest, or the transfer of a right in rem (droit réel) in real estate property that is classified or included in a protected sector of national interest, the seller must also indicate the in the deed of transfer or lease the nature of the protection, as well as the resulting legal, upon penalty of the agreement being null and void.
Finally, to the extent that the inventory operations of the various buildings deemed worthy of protection extend over several years – potentially ten (10) or fifteen (15) years - , the Law’s drafters established a transitory regime or "safety net" aimed at avoiding a building that could be classified’s being demolished prior to the validation by Grand-Ducal Regulation for a determined municipality of an architectural heritage inventory.
Any owner of property classified as a "structure to be conserved" by a municipality’s general urban development plan is thus required, until the adoption of an architectural heritage inventory by that municipality, to notify the Minister of any project for total or partial demolition, or transformation of the property.
Under those circumstances, the Minister has three (3) months starting from that notification to initiate an individual classification procedure.
Lastly, we note that even of the property is not included as a structure to be conserved in a municipality’s general urban development plan, the Minister retains the option, until the adoption of an architectural heritage inventory for the municipality in question, to initiate an individual classification procedure.
It should be noted that with the entry into force of the Law, buildings already classified as national monuments pursuant to the Law of 18 July 1983, as amended, are considered classified as part of the national cultural heritage under the Law until the entry into force of a new classification Grand-Ducal Regulation. Similarly, buildings registered in the supplementary inventory continue to be treated as buildings registered in the supplementary inventory under the old law, even though it has been repealed, until the entry into force of the new Grand-Ducal Regulation.
Real estate heritage
Thirdly, the Law reforms the regulations applicable to the protection of real estate heritage.
The main innovation is the introduction of a transfer certificate for certain categories of cultural property.
The definitive transfer of such property to another Member State is subject to the Minister’s issuing of a special certificate, which is refused if the property in question is classified as part of the national cultural heritage, is involved in a national cultural heritage classification procedure, or was illegally imported to Luxembourg.
The Law also establishes a specific regime for the restitution of cultural property that may have illegally left the territory of a European Union Member State, a State that is a party to the UNESCO Convention of 14 November 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, or a State that is party to the Hague Convention of 14 May 1954 on for the Protection of Cultural Property in the Event of Armed Conflict.
Finally, the Law enshrines the concepts of "State guarantee" (garantie d’Etat) and "payment guarantee" (garantie de restitution) which allows the actors in the Luxembourg cultural world to request the establishment by the state of guarantees aimed at covering the harm that could befall cultural property lent by third parties, or to guarantee foreign administrations that the cultural property lent to Luxembourg will be returned to them and cannot be subject to any measure of classification or seizure orders.
Intangible cultural heritage
Finally, the Law intends to legally enshrine the concept of intangible cultural heritage that encompasses traditions and know-how.
A "national inventory of intangible cultural heritage" will be drawn up by the Minister.
Any group of persons or non-profit organisations the purpose of which is the safeguarding of intangible cultural heritage may request entry in the inventory of an item it considers making up part of the intangible cultural heritage, in which it actively participates and that it commits to safeguarding and transmitting to present and future generations.
Once the entry into the inventory is made, the Minister will take all measures to ensure the safeguarding, recognition, respect and promotion of the item that is a part of the registered intangible cultural heritage.
In conclusion, it could be emphasized that while the Law brings reforms deemed necessary for several issues, its adoption as it is now also results in a net decline in the rights of the persons holding rights in these matters.
In particulier, the obligation imposed on a project owner to carry out preventive archeological impact studies for certain construction projects, studies which in most cases it will have to totally or partially finance, risks further increasing the financial burden passed on to the final purchaser of real estate property and lengthening the timeframes for the realisation of projects.
It may also be noted that the establishment of a regulatory procedure, in place of the existing individual procedure for the classification of buildings, results in depriving owners of the benefit of individual and detailed information in the context of a classification procedure.
Finally, it may be noted that the transitional period required for the adoption of the implementing Grand-Ducal Regulations will be long, and that informed owners will follow with interest the implementation of the measures provided by the Law, measures which may affect their property.