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.
In individual federal states, specific laws on cultural promotion have been passed in recent years: In December 2014, the Cultural Promotion Act – Act for the Promotion and Development of Culture, the Arts and Cultural Education in North Rhine-Westphalia (Kulturfördergesetz) – came into force in North Rhine-Westphalia. This is a law which does not deal with one sector, but with the promotion of the entire state cultural sector. This makes North Rhine-Westphalia the first federal state to adopt a legal regulation for cultural promotion. The Cultural Promotion Act concretizes the constitutional mandate of the state and shapes it, it sets out the principles of state cultural promotion and regulates fields of action and procedures. The Act introduces two new instruments: the Cultural Promotion Plan, which defines goals and priorities at the beginning of the legislative period, and the State Cultural Report, which comments at the end of the legislative period. Together with the annual cultural promotion report, the new promotion guidelines, the evaluations of the promotion measures and the associated impact dialogues, the Act also aims to achieve greater transparency and new governance structures. In other states, the drafting of a law to promote culture is being discussed, such as Thuringia and Lower Saxony.
Specific laws on cultural matters exist at state level in the fields of archiving, monument preservation and adult education. In some federal states there are also Music School Acts (e.g. Brandenburg since 2003 and Saxony-Anhalt since 2006) and Library Acts (e.g. Thuringia since 2008, Saxony-Anhalt since 2010, Hesse since 2010, Rhineland-Palatinate since 2014 and Schleswig-Holstein since 2016). However, there are no specific legal provisions for the majority of the cultural sector, such as theatres, museums, orchestras etc. Media law is divided between the federal and state governments.