Excavation

Definition and significance of excavation

Als Excavation is, in the legal sense, the systematic uncovering of objects, structures, or buildings hidden in the ground, primarily for the purpose of historical, archaeological, or scientific research. Excavations are typical measures in the field of the preservation of archaeological monuments, but also take place in the course of construction projects, infrastructure measures, or for the rescue of cultural objects. In German and European law, the execution of excavations is subject to a wide variety of legal provisions, particularly regarding monument protection, the handling of archaeological monuments, the ownership of discovered items, as well as the protection of cultural property.

Legal foundations of excavations

Monument protection law and law on archaeological monuments

In Germany, the legal framework for the execution of excavations is mainly set out in the Monument Protection Act of the respective federal state, since monument protection and preservation are within the jurisdiction of the states. In all federal states, there are specific regulations on the handling of archaeological monuments (archaeological monuments in the ground), their protection, and the requirements for permission to excavate. The main areas regulated are:

• Requirement for permit: Excavations regularly require official authorization. Permits are issued by the competent monument protection authorities and require an examination of whether public interests oppose the project.
• Obligation to report: Owners, authorized users, and builders are required to report finds or archaeological monuments to the competent authority without delay. Unreported excavations are prohibited and usually subject to penalties.
• Obligation to investigate: In the context of construction projects, the authority can require preliminary investigations or rescue excavations to protect cultural assets from destruction.
• Professional supervision: The excavation must usually be carried out by appropriately qualified personnel. The monument protection authorities may impose conditions regarding the process and documentation.

Ownership of finds in the ground

The legal classification of objects discovered during excavations is determined in particular by the German Civil Code (BGB) and specific provisions of the Monument Protection Acts:

• Law of finds according to the BGB (§§ 965 ff. BGB): If ownerless or lost property is found, the legal regulations on the loss and appropriation of found property apply. However, in the case of finds made in the course of excavations, especially if these are considered archaeological monuments, the state laws usually take precedence.
• Treasure trove principle: Many monument protection laws contain the so-called ‘treasure trove principle’, according to which finds of particular scientific, historical, or archaeological value become the property of the federal state or country.
• Compensation: In certain cases, the excavators or property owners may be entitled to reasonable compensation or a finder’s reward if the discovery meets the state-specific regulations.

Criminal and regulatory offense law

To ensure the protection of archaeological monuments, monument protection laws provide for various sanctions for unauthorized excavations or handling of excavation finds:

• Criminal offenses: Carrying out unauthorized excavations, concealing finds, or unauthorized trade in archaeological objects can constitute criminal offenses. The penalties generally include fines or imprisonment.
• Regulatory offenses: Violations of reporting obligations, documentation requirements, or obligations to store finds may be punished as regulatory offenses and can result in fines.
• Seizure and confiscation: Objects found can be seized, secured, or confiscated by the authorities, especially if they have been excavated without permission.

European legal requirements and international agreements

European and international regulations also influence national excavation law:

• European conventions: The Valletta Convention (1992) on the Protection of the Archaeological Heritage obligates the contracting states to legally secure and preserve archaeological monuments and sets minimum standards for excavations and dealings with finds.
• UNESCO Conventions: The 1970 UNESCO Convention on the Prohibition and Prevention of the Illicit Import, Export, and Transfer of Ownership of Cultural Property also affects the treatment and international trade of excavation finds.
• Implementation under national law: The requirements are implemented through national laws, such as the Cultural Property Protection Act, and concern in particular the preservation, recording, documentation, and registration of finds.

Procedures and obligations in the context of an excavation

Process of a permitted excavation

The lawful execution of an excavation generally follows the following procedure:

1. Notification and application: Before beginning an excavation, it must be reported to the competent monument authority and a permit obtained.
2. Review procedure: The authority examines the project in terms of public interests, involves scientific institutions if necessary, and issues conditions for the execution.
3. Execution: The excavation must be carried out in compliance with legal requirements and any conditions (e.g., documentation obligations, securing of finds).
4. Notification and handover of finds: Found items must be reported to the competent authority without delay. In the case of archaeological finds, the state regularly has a right of appropriation.
5. Completion and documentation: After completion, the excavation records and a final report must be submitted to the authority.

Protective provisions during excavation

• Minimizing interventions: There are requirements to minimize interventions in the ground and to protect uninvolved monuments.
• Conservation and recovery: Handling finds must be undertaken in accordance with conservation rules and standards.
• Aftercare: In cases of destructive excavations, requirements may be imposed regarding restoration, documentation, or presentation of finds.

Restrictions and delineations

Private search and treasure hunting

Spontaneous or recreational ground searches, so-called metal detecting with metal detectors, is prohibited without official permission in many federal states or only permissible with special authorization. Privately found items are also subject to reporting obligations and the treasure trove rule.

Difference from construction work

Interventions relevant to excavation law must be distinguished from regular construction work. If finds are discovered during construction activities, the builder or the construction firm is required to report and secure the site.

Literature and further regulations

• Monument Protection Acts of the federal states
• Cultural Property Protection Act (KGSG)
• German Civil Code (BGB) §§ 965 ff.
• Valletta Convention (1992)
• UNESCO Convention on the Protection of Cultural Property (1970)

Conclusion

Die Excavation in the legal context is a comprehensively regulated process that touches numerous fields of law, particularly monument protection law, law of finds, criminal and administrative offenses law, as well as international regulations. Compliance with legal requirements serves the protection of historical and archaeological cultural assets and ensures that archaeological monuments and finds are preserved and properly documented in the public interest. Before carrying out an excavation, it is always necessary to obtain official permission to avoid legal violations and sanctions.

Frequently Asked Questions

Who is legally authorized to carry out excavations?

The execution of excavations in Germany is strictly regulated by law and subject to the monument protection laws of each federal state. In principle, excavations may only be carried out with official permission, which is usually issued by the relevant monument protection authority or the state office for the preservation of monuments. Private individuals or companies without the necessary excavation permit make themselves liable to prosecution if they conduct excavations independently. As a rule, a prerequisite for granting an excavation permit is that applicants can prove archaeological qualifications and present a scientific concept. Furthermore, owners have no general right to conduct archaeological excavations on their property, since the protection of archaeological monuments is considered a matter of public interest and is therefore subject to sovereign regulation. Violations can result in substantial fines or even prison sentences.

What are the legal consequences of unauthorized excavations?

Unauthorized and unlawful excavations violate the respective federal state’s monument protection law and are prosecuted as regulatory offenses or criminal offenses. Depending on the severity of the violation, fines of up to several thousand euros may be imposed. If an archaeological monument is intentionally damaged, destroyed, or removed, particularly serious cases may be punished with imprisonment. In addition to criminal consequences, the authority can confiscate the acquired finds, and claims for damages for the destruction of cultural property may be brought. The use of metal detectors (‘metal detecting’) without a permit is also prohibited in most federal states and is subject to these legal regulations.

Who owns the items found during an excavation?

Ownership of items found during excavations is regulated by the so-called treasure trove principle, which is anchored in the monument protection laws of the federal states. Accordingly, finds that have scientific, historical, or artistic value generally belong to the state (so-called state property). In some federal states, there is a right of division of finds between the finder and the property owner, but always under the premise that the finds must first be handed over to the state for examination. Finds may only be returned to the finder after the examination is completed and with explicit official permission, provided there is no public interest in their permanent retention.

What permits are required before an excavation?

Before starting an archaeological excavation, an official excavation permit from the relevant monument protection authority must always be obtained. As a rule, the application requires a detailed scientific excavation concept, information on the type and extent of the excavation, proof of qualification of the responsible supervisor, and proof of ownership of the property. In certain cases, approvals under nature conservation or construction law may also be necessary. If an excavation becomes necessary as part of a construction project (e.g. for construction on suspicious ground), the obligation to apply usually lies with the builder.

What notification obligations exist for accidental archaeological finds?

If archaeological objects or structures are accidentally discovered during construction work or other activities, there is an immediate obligation under the monument protection laws to report the find to the competent monument protection authority. The site of the find must remain unchanged until an assessment by professionals has taken place. The obligation to report generally applies to the finder, the property owner, and all parties involved. Failure to report may result in fines or other legal consequences.

How are conflicts between monument protection and owners’ interests resolved legally?

If conflicts of interest arise between monument protection and property owners, the monument protection laws usually offer a balancing procedure. Authorities examine whether and to what extent the economic usability of a property is affected by preservation or excavation requirements. In many cases, compensation payments, so-called compensations, may be offered to owners if there is clear evidence of significant loss. Nevertheless, archaeological monuments generally enjoy high priority of protection, which may take precedence over the individual user’s rights in case of doubt. Legal remedies against official orders are available through the administrative courts.

What documentation and handover obligations exist after an excavation?

After the completion of a permitted excavation, comprehensive documentation is mandatory. This includes detailed excavation reports, documentation of finds, photographs, plans, and, where applicable, drawings of finds, all of which must be submitted to the relevant monument authority. In addition, there is an obligation to immediately hand over all recovered finds to the respective specialist authority or central collection point. Independent use, sale, or permanent storage of the finds by the excavator is prohibited and will be penalized as a legal violation.