Spain/ 5.3 Sector specific legislation  

5.3.3 Cultural heritage

Article 46 of the 1978 Constitution directs the authorities to "guarantee the preservation and to promote the enrichment of the historic, cultural and artistic heritage of the peoples of Spain and of the assets of which that heritage consists". The text goes beyond "conservation" to include the "enrichment" of cultural heritage. Acting upon this principle, the Parliament approved the Historical Heritage Act of 1985, a piece of legislation that broke new ground in heritage protection policy.

The dual purpose of the 1985 Historical Heritage Act was to ensure compliance by the central government with the 1978 Constitutional mandate and enable the autonomous communities to pass their own regional laws on the same subject, as mandated by their own Charters. However, the 1985 Historical Heritage Act was challenged by various regions on the grounds that the central government also had responsibilities in this field. The Constitutional Court, while dismissing the anti-constitutional claim, admitted that assets of which heritage consists were surely part of the culture of the whole country and therefore the two levels of government should work together. In practice, this meant that all communities introduced their own legislation anyway: Basque Country (7/1990 Act); Castile-La Mancha (4/1990 Act); Catalonia (9/1993 Act); Galicia (8/1995 Act); Valencian Community (4/1998 Act); Madrid (10/1998 Act); Cantabria (11/1998 Act); Balearic Islands (12/1998 Act); Canary Islands (4/1999 Act); Extremadura (2/1999 Act); Aragon (3/1999 Act); Asturias (1/2001 Act); Castile-Leon (12/2002 Act); La Rioja (7/2004 Act); Navarre (14/2005 Act); Murcia (4/2007 Act) and Andalusia (14/2007 Act). Currently, some communities have already modified their acts or are in the process of reforming the existing ones in order to adapt them to new times.

These laws follow a more "anthropological" interpretation of cultural heritage, leaving the traditional architectural canons employed in the nineteenth and part of the twentieth centuries behind. The protective system employed by these laws is implemented via a series of administrative measures (prohibitions, fines, conservation orders, bans on sale or export, etc.), combined with incentives, such as the so-called "cultural one per cent", a levy on the cost of all public works which is used to help defray the cost of conservation. Legislation of both the central government and the regional authorities establishes various ways of defining heritage, usually based on two categories. On the one hand, this includes the assets of cultural interest, and on the other hand, those properties included on a general inventory list of national interest. An important element of both the national and regional laws is the link made between cultural heritage Acts and legislation for urban development.

Cultural institutions such as museums and archives are regulated by the 1985 Historical Heritage Act, which gives a brief definition of such bodies and the terms under which they are set up, administered and coordinated, together with how people can use their services. The 1985 Historical Heritage Act is complemented by a series of nationwide enabling regulations governing such matters as specialist arm's length institutions. It also includes a series of rules, applying to specific institutions such as the Prado Museum, the Archaeological National Museum, the Museum of America, the Museum of the Alhambra, the Reina Sofia Museum and Art Centre, the National Museum of Anthropology, the Museum of Roman Art, the National Museum of Decorative Arts, the National Museum of Ceramics and Sumptuary Arts, the National Sculpture Museum, the National Museum of Science and Technology, as well as the state-run archives (National Historical Archive, the General Archive of Simancas, the Archive of the Indies, and the Archive of the Kingdom of Aragon). Only recently, and with the main objective of overcoming an eminently historical perspective in the treatment of public archives, the government has approved the 1708/2011 Royal Decree that establishes the Spanish Archives System and regulates the Archives System of the General Administration of the State and its public organisms, as well as its access regime. The new regulation also seeks to give local authorities management tools sufficiently flexible to permit archival communication within a dynamic framework of inter-administrative cooperation.

In the museum sector, the recently created Network of Museums in Spain (1305/2009 Royal Decree) incorporates various public authorities and institutions that have responsibility for museums into a cooperative organisation. The Network seeks to improve the national and international projection, excellence and best practices of museums. The Royal Decree provides for the creation of the Council of Museums, as a body for institutional collaboration on the Network of Museums in Spain. Its functions include defining the general criteria of excellence that will govern membership of the Network of Museums in Spain. National, regional and local museums may join the network, as well as private entities. With the aim of providing greater autonomy to the main museums of the country, at the end of 2011, the government approved the new Statute of the Prado Museum (1713/2011 Royal Decree), as well as the Act on the Reina Sofia Museum and Art Centre (34/2011 Act), that will allow approval of its new statute in the coming months.

The radical changes in the field of cultural heritage in the last 20 years have highlighted the need to reform the 1985 Historical Heritage Act. Therefore, in 2008, the Ministry of Culture established a commission to work on a draft Act on Cultural Heritage. Among the objectives for the reform are the incorporation into domestic legislation of international conventions ratified by Spain, the search for solutions to new challenges that have arisen in the protection of national heritage, and the strengthening of mechanisms for coordination and cooperation with other authorities involved in national heritage protection.

As far as regional legislation is concerned, the dominant trend is to approve individual laws for museums and archives independently of national heritage legislation. Regions which have their own museum legislation include: Andalusia (2/1984 Act), Aragon (7/1986 Act), Catalonia (17/1990 Act), Castile-Leon (10/1994 Act), Murcia (5/1996 Act), Madrid (9/1999 Act), Cantabria (5/2001 Act), Balearic Islands (4/2003 Act); Basque Country (7/2006 Act) and Navarre (10/2009 Act). Regions with their own laws for public archives are: Aragon (6/1986 Act), Canary Islands (3/1990 Act), Murcia (6/1990 Act), Madrid (4/1993 Act), La Rioja (4/1994 Act), Andalusia (3/1999 Act), Catalonia (10/2001 Act), Cantabria (3/2002 Act), Castile-La Mancha (19/2002 Act), Castile-Leon (7/2004 Act); the Valencian Community (3/2005 Act), Balearic Islands (15/2006 Act) and Extremadura (2/2007 Act).

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