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Federal Archives Act

Law for the Conservation and Use of Federal Archive Material (Federal Archives Act – BArchG) of 10 March 2017 (Federal Law Gazette [BGBl.], Part I, p. 410), last amended through Article 2 of the Law on 4 December 2018 (BGBl. Part I, p. 2257)

2019.05.08

Archival law

Please note: The English version is published here for information purposes only. Just the German text is legally binding.

 

§ 1 

Definitions

The following definitions are used within the scope of this Act:

  1. Relatives: spouses, civil partners, children, grandchildren, grandparents, parents and siblings of data subjects;
  2. Federal archive material: documents of enduring value that have been permanently acquired by the Federal Archives at the end of their respective retention periods; documents held in the temporary archive of the Federal Archives whose retention periods have expired but whose enduring value is yet to be determined are also treated as federal archive material;
  3. Data subjects: identified or identifiable natural persons on whom information is held;
  4. German films: films whose producers have their place of residence, their registered office or a subsidiary in Germany; in the case of a co-production, one of the producers must have their place of residence, their registered office or a subsidiary in Germany;
  5. Creation: the time documents in a record were last edited;
  6. Films: cinematographic works which
    a) are intended for public presentation at a cinema, or are shown to the public at nationally or internationally important festivals / awards ceremonies; and in which
    b) music does not play a central role within the meaning of Section 3 Paragraph 4 of the Law on the German National Library of 22 June 2006 (BGBl. Part I, p. 1338), last amended through Article 15 Paragraph 62 of the Law on 5 February 2009 (BGBl. Part I, p. 160);
  7. Nationally or internationally important festivals and awards ceremonies: festivals and awards ceremonies, including all festival series named in the current version of
    a) the Film Promotion Act of 23 December 2016 (BGBl. Part I, p. 3413); and
    b) the guidelines contained in the Film Promotion Act.
  8. Federal public bodies: the constitutional organs of the Federal Republic of Germany, the authorities and courts of the Federal Republic of Germany, federal corporations, institutions and foundations under public law, and other bodies of the Federal Republic of Germany;
  9. Documents: records of any kind, regardless of the nature of their storage;
  10. Documents of enduring value: documents which,
    a) are assigned particular importance because of their political, legal, economic, social or cultural content
    aa) for the study and understanding of the past and present, also in view of future developments;
    bb) for the protection of the legitimate interests of citizens; or
    cc) for legislation, executive powers or jurisdiction; or which
    b) must be stored permanently in accordance with a legal provision or agreement;
  11. Intermediate federal archive material: documents that have been temporarily acquired by the Federal Archives and are kept in an intermediate archive or digital intermedaite archive..

 

§ 2

Organisation of the Federal Archives

The Federal Republic of Germany shall keep Federal Archives as an independent higher federal authority subject to the supervision of the supreme federal authority for culture and the media.

 

§ 3

Tasks of the Federal Archives

(1) The task of the Federal Archives shall be to permanently conserve, utilise and exploit federal archive material for academic purposes. It shall ensure access to federal archive material while safeguarding private and public interests. This may also be achieved through digitalisation and publication on the Internet.

(2) The Federal Archives shall store documents from the following bodies as federal archive material once their enduring value has been determined:

  1. Documents from federal public bodies,
  2. Documents from the bodies of the German Reich and the German Confederation,
  3. Documents from bodies in Germany under the occupation of the Allied forces,
  4. Documents from the bodies of the German Democratic Republic,
  5. Documents from the Socialist Unity Party of Germany, the organisations and legal entities associated with this party, and the mass organisations of the German Democratic Republic; and
  6. Documents from other parties of the German Democratic Republic and the organisations and legal entities associated with these parties.

The Federal Archives shall determine the enduring value of documents in consultation with the offering bodies.

(3) The Federal Archives may also assume or acquire federal archive material in the form of documents from other public bodies than those named in § 1 No. 8, as well as documents from private institutions and natural persons, provided these documents have been offered to the Federal Archives and their enduring value has been established.

(4) The Federal Archives shall advise federal public bodies as part of their responsibility for the administration and conservation of the latter’s documents. Whenever new information technology systems are introduced, especially those used to keep electronic files in accordance with Section 6 of the E-Government Act of 25 July 2013 (BGBl. Part I, p. 2749), or whenever fundamental changes are made to such systems, the Federal Archives must be informed in good time if this may lead to the creation of documents that must be offered for archiving.

(5) The Federal Government may assign to the Federal Archives other tasks than those specified in this Act or those set forth in other laws of the Federal Republic of Germany if

  1. these tasks are of direct objective relevance to the archiving activities of the Federal Republic of Germany or to the study of German history using federal archive material; and
  2. these tasks must be assigned centrally to the Federal Archives.

(6) This shall have no bearing on any federal legislation stipulating the assignment of archiving tasks to other bodies.

 

§ 3a

Assumption of Special Tasks

(1) The tasks formerly performed by the dissolved "Deutsche Dienststelle für die Benachrichtigung der nächsten Angehörigen von Gefallenen der ehemaligen deutschen Wehrmacht (WASt)" (German Office for the Notification of Next of Kin of the Former German Wehrmacht) shall be assumed by the Federal Archives. The Federal Archives shall hold documents on the fate of military personnel and their family members affected by the First and Second World War and shall continue the pending administrative proceedings.

(2) The Federal Archives shall keep the documents referred to in (1) in the public interest. They shall also perform the following tasks:

  1. Clarification of individual fates,
  2. War death notices,
  3. Matters concerning war graves; and
  4. Provision of other personal information.

In order to perform the tasks indicated in Sentence 2, the Federal Archives shall provide data subjects, their relatives, public bodies and private bodies with verbal and written information, including any required certificates and statements.

(3) In addition to the provisions set forth in (2), documents shall also be subject to the access regulations set forth in §§ 10 to 16 below. If the documents referred to in (1) are no longer processed and acquire an enduring value, they may be offered as archive material.

 

§ 4

Foundation "Archiv der Parteien und Massenorganisationen der DDR"

(1) The "Stiftung Archiv der Parteien und Massenorganisationen der DDR" (Foundation Archives of the Political Parties and Mass Organisations of the GDR) is a dependent foundation under public law within the Federal Archives.

(2) The task of the foundation shall be to assume federal archive material in the form of documents from the bodies referred to in § 3 (2) No. 5 and 6, to permanently conserve these documents, and to utilise and supplement them. This shall also apply to library collections on German history, especially those which are historically or factually related to the German or international labour movement. § 3 (1) Sentence 2 shall apply accordingly.

(3) The term of protection specified in § 11 (1) shall not apply to the collections of the foundation.

(4) The exact organisation, tasks and assets of the foundation shall be regulated by the supreme federal authority for culture and media.

 

§ 5

Offering and Submission of Documents

(1) Federal public bodies must offer to the Federal Archives – or in the case of § 7, the competent regional or local archives – all documents which are available to them, which have become their property, or which have been transferred to them for use, if

  1. they no longer require the documents to perform their public duties, such as to ensure the security of the Federal Republic of Germany or one of its federal states; and
  2. they are no longer permitted to store the documents on the basis of special legal provisions.

Subject to the provisions set forth in Sentence 1, documents should be offered to the Federal Archives no longer than 30 years after their creation.

(2) In order to determine the enduring value of the documents offered in accordance with (1), the employees of the Federal Archives must be granted access to them and the associated registry tools in agreement with the competent federal public body. Once the enduring value of the documents has been established, the public body concerned must submit the documents to the Federal Archives alongside submission lists. The Federal Archives may reject any documents that do not have an enduring value.

(3) If electronic documents are offered, the Federal Archives shall agree the date of the transfer beforehand with the federal public body concerned. The type of transfer and data format shall be based on the binding standards of the federal administration. If no binding federal standards have been established for the type of transfer and data format, these must be agreed with the federal public body submitting the documents. If the Federal Archives determine the enduring value of the electronic documents, the federal public body concerned must use state-of-the-art technology to delete any copies of the documents in its possession at the end of the retention period, unless it requires such copies for publications; proof of deletion must be provided. Any electronic documents that require constant updating must also be offered within deadlines to be agreed between the Federal Archives and the providing body in accordance with the requirements set forth in Sentences 1 to 3. Sentence 5 shall not apply to any documents exempted from the obligation to offer items in accordance with § 6 (1) Sentence 2 and (2).

(4) The legislative bodies shall decide on their own authority whether to offer and submit documents to the Federal Archives as federal archive material.

(5) Personal data may be processed for archival purposes if the legitimate interests of data subjects are not thereby affected. 

 

§ 6

Offering and Submission of Documents subject to Secrecy, Destruction or Deletion Obligations

(1) Federal public bodies must also offer to the Federal Archives – or in the case of § 7, the competent regional or local archives – any documents subject to federal secrecy legislation or Section 30 of the German Fiscal Code in the version promulgated on 1 October 2002 (BGBl. Part I, p. 3866; 2003 Part I, p. 61), last amended through Article 19 Paragraph 12 of the Law on 23 December 2016 (BGBl. Part I, p. 3234). Intelligence services must also offer any documents subject to their right of disposal, unless such submissions are prevented by compelling reasons concerning the protection of their sources and methods and the protection of their employees’ identity.

(2) The obligation to offer items does not apply to the following types of documents

  1. Documents whose disclosure would breach the secrecy of correspondence, post or telecommunications; and
  2. Documents that must be destroyed or deleted in accordance with legal provisions and may not be alternatively offered to the competent public archives in accordance with the same legal provisions.

(3) From the date of the acquisition onwards, the Federal Archives must

  1. observe the secrecy provisions referred to in (1), the Classified Information Guidelines of 31 March 2006 in the version published on 26 April 2010 (Joint Ministerial Gazette [GMBl.] 2010, p. 846) and the General Administrative Regulation of the Federal Ministry of the Interior for the Implementation of the Law on the Requirements and Procedures of Federal Security Checks of 29 April 1994 in the version published on 31 January 2006 (GMBl. 2006, p. 339); and
  2. respect the legitimate interests of data subjects in the same way as the providing body.

Public officials and the employees of public archives shall be subject to all the secrecy regulations applicable to those employed by the providing body.

(4) Documents which are subject to the federal regulations on confidentiality or tax secrecy, as stipulated in Section 30 of the German Fiscal Code, or which contain information on the circumstances of another individual or foreign trade or business secrets, may be offered and submitted to the Federal Archives or, in the case of § 7, the competent regional or local archives, by entities other than federal public bodies.

 

§ 7

Offering and Submission of Documents to Regional or Local Archives

If federal public bodies hold documents from subordinate federal bodies whose local jurisdiction does not extend to the entire scope of this Act, they must offer and submit these to the competent regional or local archives if advised to do so by the Federal Archives with the consent of the supreme federal body, provided the requirements set forth in §§ 6 and 10 to 14 are guaranteed through regional laws or local statutes.

 

§ 8

Intermediate Archives and Digital Intermediate Archives

(1) The Federal Archives shall keep intermediate archives for the non-electronic documents of the supreme federal authorities and constitutional organs. The Federal Archives shall also keep digital intermediate archives for the electronic documents of all institutions of the federal administration.

(2) The Federal Archives shall keep intermediate federal archive material on behalf of the offering federal public body or its legal and functional successor. Until the documents are acquired as federal archive material, the responsibility of the Federal Archives shall be limited to the technical and organisational measures required to store and conserve the documents. Intermediate federal archive material may be appraised by the Federal Archives in accordance with the provisions set forth in § 3 (2) Sentence 2; the provisions set forth in § 5 (5) shall apply accordingly.

(3) The submission of electronic documents to the digital intermediate archives shall be subject to the binding standards of the federal administration. If no binding federal standards have been established for the type of transfer and data format, these must be agreed with the public body submitting the documents.

 

§ 9

Prohibition of Alienation

Federal archive material is inalienable.

 

§ 10

Use of Federal Archive Material

(1) All persons shall be entitled to request the use of federal archive material in accordance with this Act. This shall have no bearing on any other legal regulations for the use of documents and special agreements in favour of the owners of private archive material.

(2) Authorisation to use archive material may be granted with conditions for the protection of public interests and the legitimate interests of data subjects, or such authorisation may be subject to revocation.

(3) If applicants request a specific form of use, another form of use may only be established for good reason.

 

§ 11

Terms of Protection

(1) Unless otherwise stipulated by law, the general term of protection for federal archive material shall be 30 years. This shall begin upon the creation of the documents.

(2) Once the term of protection stipulated in (1) has expired, federal archive material whose purpose or essential content concerns one or more natural persons may only be used at least ten years after the death of the respective person. If their year of death cannot be established – or only with an unreasonable amount of time and effort – the term of protection shall expire 100 years after the birth of the persons concerned. If their birthday cannot be established either – or only with an unreasonable amount of time and effort – the term of protection shall expire 60 years after the creation of the documents.

(3) Federal archive material consisting of documents that are subject to the secrecy obligations set forth in § 6 (1) Sentence 1 and (4) may only be used 60 years after their creation.

(4) The terms of protection stipulated in (2) shall not apply to any federal archive material relating to public officials in the exercise of their duties or to persons of contemporary history, unless the private life of such individuals is affected and requires protection.

(5) The terms of protection stipulated in (1) to (3) shall not apply to any federal archive material which

  1. consists of documents that were intended for publication upon their creation; or
  2. consists of documents that were accessible prior to their submission to the Federal Archives in accordance with an information access law.

(6) The provisions set forth in (1) to (5) and §§ 10, 12 and 13 shall apply accordingly to the use of documents that are over 30 years old and still under the control of federal public bodies.

 

§ 12

Shortening and Extending Terms of Protection

(1) The Federal Archives may shorten the term of protection stipulated in § 11 (1), unless this is prevented by one of the grounds for restriction and denial referred to in § 13.

(2) The Federal Archives may shorten the terms of protection stipulated in § 11 (2) with the consent of the data subjects. If no consent has been given, the Federal Archives may shorten the terms of protection stipulated in § 11 (2) if

  1. the use is essential for a scientific research or documentation project, or for other legitimate purposes in the overriding interest of another person or body; and
  2. an impairment of the legitimate interests of data subjects or their relatives can be ruled out by taking appropriate measures, such as by submitting anonymous reproductions or obtaining declarations of commitment.

(3) The Federal Archives may shorten or extend the term of protection stipulated in § 11 (3) by a maximum of 30 years if this is in the public interest.

(4) If federal archive material was created by a federal public body, the terms of protection stipulated in (1) to (3) may only be shortened or extended with the consent of the respective body. Its consent shall not be required if this has been determined by a previous general agreement concluded with the providing body.

 

§ 13

Grounds for Restriction and Denial of Use

(1) The Federal Archives may restrict or deny use in accordance with the provisions set forth in §§ 10 to 12 if

  1. there is reason to believe that such usage would threaten the welfare of the Federal Republic of Germany or one of its federal states;
  2. there is reason to believe that such usage is prevented by the legitimate interests of data subjects or their relatives; or
  3. such usage would violate federal secrecy legislation.

When weighing up the interests referred to in Sentence 1 No. 2, particular consideration must be given to whether the collection of information constitutes a clear violation of human rights.

(2) Usage may also be restricted or denied by the Federal Archives if it

  1. would jeopardise the conservation of the federal archive material; or
  2. would result in excessive administrative expenditure.

(3) The use of federal archive material consisting of documents that are subject to the secrecy obligations set forth in Section 203 Paragraph 1, 2 or 4 of the German Criminal Code may be restricted or denied by the Federal Archives if this is necessary to protect the legitimate interests of data subjects.

 

§ 14

Rights of Data Subjects

(1) Data subjects may request information regarding the documents concerning them in federal archive material, provided the federal archive material can be accessed through the name of the person, or details are provided that allow the relevant federal archive material to be located with an acceptable degree of administrative expenditure. The provisions set forth in § 10 (3) shall apply accordingly to such access.

(2) After the death of data subjects, the rights referred to in (1) may be exercised by any of their relatives with a legitimate interest, unless the data subjects have left behind instructions to the contrary or they have a conflicting will due to other circumstances.

(3) The right to information or access may be restricted on the grounds referred to in § 13 (1). In such cases, the request shall only be granted if it is possible to access the documents without disclosing the information to be protected in accordance with the provisions set forth in § 13 (1) and without an unreasonable degree of administrative expenditure.

(4) If data subjects refute the accuracy of documents containing their personal data, they shall be granted the right to provide a counter-version. The relatives of deceased data subjects shall also be granted the right to provide a counter-version if they have a legitimate interest in doing so. The Federal Archives shall be obliged to add the counter-version to the documents.

 

§ 15

Use of Federal Archive Material by Providing Bodies

(1) Providing bodies and their legal or functional successors shall always be granted free access to the federal archive material they have submitted – subject to the reimbursement of expenses incurred by the Federal Archives – if they require this material for the performance of their duties. Access may be granted on the providing body’s premises in exceptional cases.

(2) The right of use specified in (1) shall not apply to any documents containing personal data that are submitted to the Federal Archives prior to their destruction or deletion. In such cases, a right of access shall only be granted in accordance with the provisions set forth in §§ 10 to 13 but not for the purpose for which the personal data was originally stored.

 

§ 16

Transmission of Reproductions of Federal Archive Material before the Expiry of Terms of Protection

(1) The Federal Archives may provide archives, libraries, museums, research centres and documentation centres with reproductions of federal archive material before the end of its term of protection if there is a special public interest in the provision of such archive material for the performance of their duties; the provisions set forth in § 12 (4) shall apply accordingly.

(2) Documents containing personal data may only be reproduced and transmitted if

  1. the receiving body provides adequate assurance for the protection of the legitimate rights of data subjects and the assertion of their associated rights; and
  2. the receiving body enters into a written agreement with the Federal Archives to assure compliance with the provisions set forth in § 6 (3) and §§ 11 to 14, and to assure that the documents shall only be used for its own purposes.

(3) The reproduction and transmission must not conflict with other laws.

 

§ 17

Mandatory Registration of German Films

(1) The producers and co-producers of German films must register them in a database at the Federal Archives in accordance with Sentence 2. Films must be registered within 12 months of their first public showing at a cinema, nationally or internationally important festival or nationally or internationally important awards ceremony, or after receiving a public award at any such nationally or internationally important event.

(2) When registering a film in accordance with the provisions set forth in (1), or at the latest within 12 months thereafter, the producers and co-producers must notify the Federal Archives of the location of a technically flawless and archivable copy of the film. The Federal Archives must be immediately notified of any changes to the storage location of a film copy.

(3) Non-feature films with a running time of under 79 minutes and children’s films with a running time of under 59 minutes must only be registered if they are shown to the public, have benefited from public funding or have received an award at a nationally or internationally important awards ceremony.

 

§ 18

Administrative Fines

(1) An administrative offence shall be deemed to have been committed by any person who

  1. violates the provisions set forth in § 17 (1) by failing to register a film, or by failing to do so correctly or on time; or
  2. violates the provisions set forth in § 17 (2) by failing to notify the Federal Archives, or by failing to do so on time.

(2) An administrative offence shall be deemed to have been committed by any person who acts negligently as described in (1) in their capacity as a commercial entity subject to registration obligations.

(3) Administrative offences may be punished with a fine of up to 10,000 euros.

(4) The Federal Archives shall act as the “administration authority” within the meaning of Section 36 Paragraph 1 No. 1 of the Act on Administrative Offences.

 

§ 19

Power to Issue Statutory Instruments

The member of the Federal Government responsible for culture and the media shall be authorised to do the following by legal enactment without the consent of the Bundesrat (Federal Council):

  1. Establish further provisions for the use of archive material and library holdings in the Federal Archives; and
  2. Determine the procedure and form for the mandatory registration of films.

 

[Entry into Force]

[This Act entered into force on 16 March 2017.]