Portugal

Portugal
National legislation for the protection of the cultural heritage
1. National regulations (publication references)
- Law No 107/2001 of 8 September 2001 (Heritage Law) defining down the basis for
policy and rules governing the protection and enhancement of the national heritage
- Decree-Law No 16/93 laying down the general rules governing archives and the archival
heritage
- Decree-Law No 164/97 on the underwater cultural heritage.
2. National cultural protection
2.1. Framework of protection (nature and legal status of protected cultural goods)
The generic definition of cultural heritage is laid down in Article 2(1) and (2) of the Heritage
Law:
- All goods which reflect a civilisation or culture and of relevant cultural interest must be
afforded special protection and enhancement;
- The relevant cultural interest, whether it be historical, palaeontological, archaeological,
architectonic, linguistic, documentary, artistic, ethnographical, scientific, social, industrial
or technical, of goods forming part of the cultural heritage shall reflect values of history,
antiquity, authenticity, originality, rarity, individuality or exemplariness.
Article 17 of the Law also defines the criteria which should be used to determine, in practice,
the level of protection or to classify or list goods according to:
- the genius of their creator
- the symbolic or religious value of the goods
- the value of the goods in terms of customs or historical facts
- the aesthetic, technical or intrinsic value of the goods
- the value of the goods in terms of historical or scientific research.
Article 55 defines movable goods forming part of the Portuguese cultural heritage as works
of art or works attributable to a Portuguese author, created or produced on Portuguese
territory, resulting from the dismemberment of immovable goods situated on Portuguese
territory, commissioned or distributed by national bodies or in their possession, representing
or reflecting Portuguese customs or history and forming part of the natural constituents of
Portuguese culture, which have been on Portuguese territory for 50 years and which, for any
reason other than those referred to above, are of special interest for the study and
understanding of Portuguese civilisation and culture.
Under Article 64 movable cultural goods which are a practical reflection of a civilisation and
culture and which satisfy the description in Article 55 may not leave Portuguese territory
without a prior dispatch or export licence.
In the future, the Law will be amended to ensure all goods of cultural, historic and other
value may be accompanied by an identification document if requested by the relevant
possessors.
2.2. Protection of cultural goods (procedure)
This procedure involves classification and listing. Irrespective of whether goods are regulated
by any institute, their dispatch or export, whether on a temporary or permanent basis, requires
the prior authorisation of the Ministry of Culture.
The certificate applying to third countries is also used for the dispatch of cultural goods
within the EU. Consequently, in practice documents are standardised in the interest of
simplification.
Protection is afforded to goods irrespective of their financial value.
The Heritage Law lays down special rules governing the archaeological, archival,
audio-visual, bibliographical, phonographic and photographic heritage.
Each of these areas is regulated by separate institutes which give their opinions on whether
the temporary or permanent dispatch or export is to be authorised or prohibited but do not
have the authority to issue the licences for which the Portuguese Museum Institute is
responsible.
Applications for the removal of cultural goods from Portuguese territory must be made to the
Portuguese Museum Institute which may consult other departments within the Ministry of
Culture depending on the type of goods involved. This Institute is responsible for the
administrative procedure. The final decision is taken by the Minister of Culture.
2.3 Authority responsible for national protection
Ministério da Cultura (Ministry of Culture)
Instituto Português de Museus (Portuguese Museum Institute)
Palácio Nacional da Ajuda
Calçada da Ajuda, No 118
1300-018 Lisbon
Contact point: Manuel Bairrão Oleiro
Tel.: 35-1-21-3650800
Fax: 35-1-21-3647827
Website: http://www.ipmuseus.pt
In the cases referred to in Article 65(2) and (3) (national treasures) an order of the Minister of
Culture or a governmental decree is required.
3. Protection of national treasures
3.1. Definition of national treasure
Article 15(3) of the Heritage Law has created the definition of “national treasure” to identify
movable goods classified as being of municipal interest.
Articles 15(4) and Article 18(1) of the Heritage Law define such goods as those which have
an inestimable cultural value and are, consequently, of national importance.
Article 18(2) lays down that movable goods belonging to individuals can be classified as
being of national interest only if their degradation or removal would cause irreparable loss to
the cultural heritage.
National treasures are defined in the light of the criteria laid down in Article 17 and
Article 55(1).
National treasures may not be exported in accordance with this Article except in the cases
laid down in paragraphs 3 and 4 thereof (see point 3.2).
3.2. Nature of protection (legal status, licence for exit or accompanying document,
model)
Article 15(2) states that movable goods may be classified as being of national, public or
municipal interest.
A good may be considered to be of national interest if its total and partial protection and
enhancement constitute a cultural value of national importance (Article 15(4)).
A good may be considered to be of public interest if its protection and enhancement also
constitute a cultural value of national importance but does not warrant the degree of
protection pertaining to goods classified as being of national interest (Article 15(5)).
Goods are deemed to be of municipal interest if their total or partial protection and
enhancement constitute a cultural value of predominantly municipal importance
(Article 15(5)).
Legal protection is afforded to cultural goods, within the terms of Article 16, by means of
classification and listing. Each form of protection gives rise to the relevant level of
registration: classification or listing.
Article 18 states that classification means the conclusion of the administrative procedure
whereby a particular good is deemed to be of inestimable cultural value.
Article 19 defines listing as the systematic listing, updating and exhaustive categorisation of
existing cultural goods at national level with a view to their identification.
The listing of goods does not place special restrictions on the rights of private possessors.
Article 65 of the Heritage Law prohibits the permanent removal from Portuguese territory of
goods classified or being classified as being of national interest except in the situations
referred to in paragraphs 2 and 3 of this Article.
Article 65(2) states that the temporary export or dispatch of goods classified or being
classified as being of national interest can be authorised solely by order of the member of the
government responsible for culture or for cultural or scientific purposes or the temporary
exchange for other goods of similar interest for the cultural heritage.
Article 65(3) stipulates that the permanent export and dispatch of goods classified or being
classified as being of national interest which belong to the State may be authorised, on an
exceptional basis, solely by the Council of Ministers for exchange for other goods abroad
which are of exceptional interest for the cultural heritage.
4 Controls for protection of the national cultural heritage
4.1. Customs authority responsible for export controls (contact point)
Ana Isabel Pires
Direcção – Geral das Alfândegas e dos Impostos Especiais
Rua da Alfândega No 5 – r/c
1194-006 Lisbon
Tel.: 351-21-8813906
Fax: 351-21-8813984
e-mail: aipires@dgaiec.min-financas.pt
4.2. Police authority responsible for protection (contact point)
Policia Judiciária
Contact point: Inspector João Neto
7a. Secção – Obras de Arte e Ambiente
Rua Gomez Freire, 174
1169-007 Lisbon
Tel. 351-21-3576123
Fax 351-21-3157132
e-mail: obras.arte@pj.pt
Website: http://www.policiajudiciaria.pt (list of stolen goods)
4.3. Nature of and legal basis for control
Legal basis: customs legislation, Heritage Law and the Law setting up the Portuguese
Heritage Institute.
4.4. Methods of control (special powers, scope and investigation methods)
These are defined by customs law.
5. Penalties relating to cultural goods and national treasures
Criminal penalties
Article 100 of the Heritage Law states that crimes involving cultural goods shall be governed
by the provisions of the Penal Code, and in particular by the following Articles of the
Heritage Law which state in relation to movable goods:
Unlawful export is covered by Article 102 which states:
1- Any person exporting or dispatching a good classified or being classified as being of
national interest, in the cases laid down in Articles 65(2) or (3), shall be subject to a prison
sentence of up to five years or a fine payable within 600 days.
2- In the case of negligence the person concerned shall receive a prison sentence of up to one
year or a fine payable within 120 days.
Fines
Paragraph (c) of Article 104 provides that the export or dispatch in breach of Article 65 of
goods which are classified or are being classified constitutes a serious infringement which is
liable to a fine of €2 500 or €500 000.
Article 105 states that infringement of the rules governing the presentation of licences for the
export of cultural goods outside the territory of the European Union as laid down in Council
Regulation (EEC) No 3911/92 of 9 December 1992 is a serious offence attracting fines of
differing amounts.
Other penalties
Other penalties provided for in Article 108 may range from the confiscation of the goods
which are the subject of the infringement to a ban on the exercise of the profession of antique
dealer or closure of the establishment whose operation is subject to authorisation or licensing
by the administrative authorities.
6. Other specific national regulations
6.1. Existence of the right of preemption, conditions
The right of preemption for a cultural good may be exercised solely under the terms laid
down in Article 66(3) which states that the presentation of an application for export or
dispatch of goods for the purpose of their sale gives the State the right of preemption for their
acquisition. Article 37 states that co-possessors, the State, the autonomous regions and the
municipal authorities enjoy a right of preemption, in descending order, in the event of the sale
or proffering as payment of classified goods.
6.2. National taxation, special features
According to Article 99 of the Heritage Law, the definition and structure of the rules
governing tax relief and tax incentives for the protection and enhancement of the cultural
heritage are subject to autonomous law.
6.3. Any other special features
Article 99 provides for governmental financial support or special credit facilities to be
granted under favourable conditions to possessors or other holders of the right to use
classified or listed cultural goods where they undertake work to protect, conserve and
enhance the goods.
7. (Internet or other) sites giving access to the above information
Legislation (laws and decrees):
Portuguese Parliament: http//www.parlamento.pt
Portuguese Museum Institute: http//www.ipmuseus.pt
Community legislation for the protection of the cultural heritage
1. Council Directive 93/7/EEC of 15 March 1993 on the return of cultural goods
unlawfully removed from the territory of a Member State
1.1. Transposing legislation, references, information sites
The Heritage Law governing the protection and enhancement of the national heritage
provides for the return of any cultural goods unlawfully exported from its country of origin
irrespective of its monetary value nullifying any legal transaction on Portuguese territory.
Consequently Portuguese legislation already incorporates the technical amendments
introduced by Directive 2001/308/EC of 5 June 2001.
Website: http//www.parlamento.pt
1.2. Central authority responsible for implementation and/or return (contact point)
Ministério da Cultura (Ministry of Culture)
Instituto Português de Museus (Portuguese Museum Institute)
Palácio Nacional da Ajuda
Contact point: Manuel Bairrão Oleiro
Tel.: 35-1-21-3650800
Fax: 35-1-21-3647821
Website: http//www.ipmuseus.pt
Gabinete de Relações Internacionais (International Relations Department)
Rua de São Pedro de Alcântara, No 45, 2nd floor
1269-139 Lisbon
Contact point: Patrícia Salvação Barreto
Tel.: 35-1-21-3241933
Fax: 35-1-21-3241966
e-mail: mcgri@mail.telepac.pt
Website: http//www.gri.pt
Policia Judiciária (Judicial Police)
Contact point: Inspector João Neto
7a Secção – Obras de Arte e Ambiente
Rua Gomes Freire, No 174
1169-007 Lisbon
Tel.: 351-1-21-3576123
Fax: 351-1-21-3157132
e-mail: joao.neto@pj.pt
Website: http//www.policiajudiciaria.pt
2. Council Regulation (EEC) No 3911/92 of 9 December 1992 on the export of cultural
goods
2.1. Authority responsible for issuing export licences for cultural goods
Ministry of Culture
Palácio Nacional da Ajuda
Calçada da Ajuda
P-1300-108 Lisbon
2.2. Nature of controls and methods used
2.3. Penalties
2.4. List of customs offices authorised to carry out export formalities
Alcântara (North)
Lisbon airport
Alverca
Leixões
Oporto airport
Funchal
Ponta Delgada
2.5. Authority responsible for carrying out controls (contact point)
Ana Isabel Pires
Direcção Geral das Alfândegas e dos Impostos Especiais
Rua da Alfândega, No 5 – r/c
1194-006 Lisbon
Tel.: 351-21-8813906
Fax: 351-21-8813984
e-mail: aipires@dgaiec.min-financas-pt
2.6. (Internet or other) sites giving access to the above information
International conventions
1. Accession to international conventions
Accession to the UNESCO Convention, Paris, 14 November 1970
UNESCO: http:// www.unesco.org
2. Authority responsible for applying the Convention (contact point)
Polícia Judiciária
Contact point: Inspector João Neto
7ª Secção –Obras de Arte e Ambiente
Rua Gomes Freire, No 174
1.169-007 LISBON
Tel.: 351-21-3576123
Fax: 351-21- 315 71 32
email: joao.neto@pj.pt
3. National framework for the UNESCO Convention in the case of accession
This is the same as that for Regulation (EEC) No 3911/92/1996 and has the same age
thresholds for works irrespective of their financial value.
4. Other international conventions
UNIDROIT Convention has already been ratified.
5. Sites giving access to above information
Website: http:// www.policiajudiciaria.pt/