Legal aspects of cultural policy are governed by related provisions in constitutional and administrative law. These provisions, however, are not codified in a single text; they consist of a host of constitutional and statutory provisions, above all the Federal Constitution and the constitutions of the federal states (Länder), the municipal and county codes, a few specialised statutes of the federal states (Länder) relating to cultural affairs, federal legislation such as the Act on the Protection of German Cultural Heritage against Removal Abroad, the Copyright Law, the Federal Film Promotion Act and the Artists’ Social Insurance Act, the Federal Archives Act and various provisions relating to cultural matters in legislation such as the Federal Building Act, the Federal Regional Planning Act and the Federal Act for the Expellees. In addition, German cultural policy is bound by the provisions of international legal instruments such as the United Nations Universal Declaration of Human Rights, which includes the stipulation that “everyone has the right freely to participate in the cultural life of the community, to enjoy the arts …”
Moreover, the federal authorities – based on the Constitution (see chapter 4.1.1 and chapter 4.1.2) and on the jurisdiction of the Federal Constitutional Court – lay a claim to competence originating “in the nature of the matter” where the matters in question are tasks that in a federally structured union are peculiar to the national level and cannot be effectively handled or regulated by a Land. In practice, the Federal Government and parliament derive their competence on these grounds when functions of significance for the state as a whole are at stake, such as representing the country in its entirety. This includes concrete activities in the area of promoting culture, whereby the Federal Government – aside from exceptions such as its contractual commitment to fund cultural institutions in the capital – generally only acts together with one or more federal states (Länder) or with a municipality. Prior to unification, cultural matters relating to both German states fell within the remit of the national government. Upon unification, the aspect “promotion of unity” as expressed in Article 35 of the 1990 Unification Treaty took centre stage.
The cultural competence of the federal states (Länder) is limited by the tasks of the federal authorities defined in the Federal Constitution and by the responsibilities transferred to the municipalities within the framework of “local self-government” (Article 28.2 GG), as well as by the obligation of the municipalities under many Land constitutions to cultivate and promote cultural life. In contrast to the other two levels, the competence of the federal states (Länder) is more precisely defined by provisions in their constitutions and by individual laws.
Specific cultural promotion laws have been passed in individual federal states in recent years: In December 2014, North Rhine-Westphalia passed the Cultural Promotion Act – Act for the Promotion and Development of Culture, the Arts and Cultural Education in North Rhine-Westphalia. This was a law that did not deal with one sector but with the promotion of the entire state cultural sector. This makes NRW the first federal state to adopt a legal regulation for cultural promotion. The Cultural Promotion Act concretised the state’s constitutional mandate and fleshed it out, it set out principles of state cultural promotion and regulated fields of action and procedures. The Act introduced two new instruments: the Cultural Promotion Plan, which defined goals and priorities at the beginning of the legislative period, and the State Cultural Report, which gave its opinion at the end of the legislative period. Together with the annual cultural funding report, the new funding guidelines, the evaluations of the funding measures and the associated impact dialogues, the law also aimed at more transparency and new governance structures.
In May 2021, the state cabinet of North Rhine-Westphalia has now approved a government draft of a “Kulturgesetzbuch” NRW was adopted. With this, the legal regulations concerning culture are bundled in a separate cultural code. The State Parliament of NRW passed a new Cultural Code in November 2021, which came into force on 1 January 2022: “The Cultural Code is an organic further development of the Cultural Promotion Act, but differs from it in key aspects.” Its focal points include: Binding social conditions for artists, legal anchoring of music schools and libraries, cultural memory and safeguarding of cultural heritage, anchoring of third places, anchoring of sustainability. The aim of the law is to “strengthen the cultural landscape of North Rhine-Westphalia by establishing a binding framework and at the same time to emphasise the importance of culture as a central field of political action”44 .
Specific cultural laws exist at Land level in the fields of archives, monument preservation and adult education. Some Länder also have a Music School Act (e.g. Brandenburg and Saxony-Anhalt since 2006 (see 4.2.3) and a Library Act (see 4.2.5 e.g.).
Thuringia since 2008, Saxony-Anhalt since 2010, Hesse since 2010, Rhineland-Palatinate since 2014 and Schleswig-Holstein since 2016). However, for most of the cultural sector, such as theatres, museums, orchestras, etc., there are no specific legal provisions. Media law is divided between the Federation and the Länder.
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