Kostentragungspflicht und Zumutbarkeit für Verursacher im novellierten Denkmalschutzgesetz von Nordrhein-Westfalen im Vergleich mit den übrigen Bundesländern

Abstract

In the 10 A 1995/09 sentence of 20.09.2011, the Higher Regional Court (HRC) in Münster (North-Rhine-Westphalia, NRW) pronounced that to impose costs for archaeological excavations and documentation on the investor of a building project – an administrative practice that has occurred in NRW for years – is illegal. The HRC based its sentence on the argument that this administrative practice could only be legitimated by a legal clause. This required NRW to settle the cost-by-cause principle in a legal clause in the culture heritage law without delay, since the scarce financial resources had caused considerable cuts in the budget for the culture heritage and the convention of La Valletta/Malta, which had to be transformed in German Law, demands a legal manifestation of the cost-by-cause principle by the federal states. In 2013, the government of NRW legislated a number of clauses of cultural heritage law, as well as § 29, which regulates the cost-by-cause principle; these were followed by the relevant implementation rules in 2014. This paper will compare the new policies of NRW to the policies of the other German States and will show considerable differences between individual regions. From this comparison and from the fact that not all states have included regulations concerning the cost-by-cause principle in their heritage laws, it can be stated that there is a serious need for legal regulation in Germany.