On 12 November 2013, the Court of Appeal in Leeuwarden ruled in a dispute between the designer of the artwork "a virtual Boteringepoort" and the Municipality of Groningen.
At issue was whether the Municipality of Groningen was permitted to remove two wall ornaments with neon glass light arches and four spotlights in the shape of a vanished city gate. The artwork was defective from the start of installation, the lights did not work properly and the Municipality had to incur costs for repair each time. In November 2012, the Municipal Executive of Groningen had had enough and decided to remove the artwork. The designer of the artwork opposed this.
The Court of Appeal in Leeuwarden ruled that the question of whether the municipality was entitled to proceed with the removal of the work of art had to be answered on the basis of the criterion of abuse of rights. Someone can abuse his authority if he exercises it in such a way that the interests of another are harmed disproportionately and exercising it is not reasonable. So whether the interests of the artist were harmed disproportionately by the removal of the work of art.
To this end it is important whether the destruction of a unique work of art is involved. In that case there must be a legitimate reason for destruction. If there is such a reason, then the artist must make it plausible that his interests would be harmed disproportionately by the removal.
The artist's objection to the destruction was primarily motivated by the historical and symbolic value of the work for the inhabitants of the city and the artist's own interests. The Court of Appeal made a balancing of interests between the municipality on the one hand and the artist on the other hand, ruling that the work of art had never functioned properly and that the municipality had made sufficient efforts to preserve the work in recent years. However, now that the preservation has become too expensive, there is a valid reason for removing the work. The Court of Appeal ruled that the Municipality could not be expected to keep restoring the work of art. Partly because the Municipality has offered to return the work of art to the artist and to have it documented, the Court of Appeal ruled that there was no abuse of power. It may remove the artwork.
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