61984CJ0252_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 252/84
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT RHEINLAND-PFALZ ( FINANCE COURT, RHINELAND-PALATINATE ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
COLLECTOR GUNS GMBH & CO . KG, ALTENKIRCHEN,
AND
HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) KOBLENZ
Subject of the case
ON THE INTERPRETATION OF HEADING NO 99.05 OF THE COMMON CUSTOMS TARIFF ON THE DUTY-FREE IMPORTATION OF ' COLLECTORS '
PIECES OF . . . HISTORICAL ... INTEREST ',
Grounds
1 BY AN ORDER OF 10 OCTOBER 1984, WHICH WAS RECEIVED AT THE COURT ON 26 OCTOBER 1984, THE FINANZGERICHT RHEINLAND-PFALZ REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF HEADING NO 99.05 OF THE COMMON CUSTOMS TARIFF RELATING TO ' COLLECTORS '
PIECES . . . OF HISTORICAL . . . INTEREST ' .
2 THE QUESTION WAS RAISED IN PROCEEDINGS BETWEEN COLLECTOR GUNS GMBH & CO . KG ( THE PLAINTIFF IN THE MAIN PROCEEDINGS ) AND THE HAUPTZOLLAMT KOBLENZ RELATING TO THE TARIFF CLASSIFICATION OF NINE FLARE PISTOLS, FOUR 9 MM PISTOLS, ONE 8 MM PISTOL, FOUR 7.65 MM PISTOLS AND FOUR LEATHER PISTOL HOLSTERS, IMPORTED FROM THE UNITED STATES, FOR WHICH EXEMPTION FROM DUTIES WAS CLAIMED UNDER HEADING NO 99.05 OF THE COMMON CUSTOMS TARIFF ON THE GROUND OF THEIR BEING ' COLLECTORS '
PIECES OF . . . HISTORICAL . . . INTEREST ' .
3 AFTER INSPECTING THE GOODS THE HAUPTZOLLAMT REFUSED TO GRANT THE REQUEST BY COLLECTOR GUNS AND LEVIED A TOTAL OF DM 441.30 AS CUSTOMS DUTIES AND DM 931.90 AS VALUE-ADDED TAX, CLASSIFYING PART OF THE CONSIGNMENT AS FIREARMS UNDER HEADING NO 93.02 ( REVOLVERS AND PISTOLS ) AND THE REMAINDER AS PISTOL HOLSTERS UNDER HEADING NO 42.02 .
4 WHEN ITS OBJECTION TO THAT DECISION WAS REJECTED, COLLECTOR GUNS BROUGHT AN ACTION BEFORE THE FINANZGERICHT RHEINLAND-PFALZ . IT CLAIMED THAT THE DEMAND FOR DUTY WAS UNLAWFUL SINCE THE IMPORTED GOODS FELL UNDER HEADING NO 99.05 AND WERE MOREOVER EXPRESSLY MENTIONED IN THE EXPLANATORY NOTES TO THE NOMENCLATAURE OF THE CUSTOMS COOPERATION COUNCIL . THE AGE OF THE FIREARMS WAS IRRELEVANT . THEY WERE NOT COMMON ITEMS OF TRADE BUT OBJECTS BELONGING TO A SPECIAL TRADE, WHICH WERE RARELY OFFERED FOR SALE .
5 THE HAUPTZOLLAMT CONTENDED, ON THE OTHER HAND, THAT COLLECTORS '
PIECES RELEVANT TO THE STUDY OF ARMAMENTS, WHICH WAS MAINLY CONCERNED WITH THE HISTORICAL DEVELOPMENT OF ARMS TECHNOLOGY, MUST BE OF APPRECIABLE HISTORICAL INTEREST, OVER AND ABOVE THEIR VALUE AS SPECIMENS FOR STUDY, AND MUST ILLUSTRATE THE HISTORICAL DEVELOPMENT OF NATIONS AS A RESULT OF FUNDAMENTAL CHANGES IN THE FIELD OF ARMAMENTS TECHNOLOGY . THE DEVELOPMENT OF SMALL ARMS, SUCH AS PISTOLS IN THE PRESENT CASE, BASICALLY TERMINATED AT THE END OF THE LAST CENTURY OR THE BEGINNING OF THE PRESENT ONE, WITH THE RESULT THAT SMALL-ARMS MANUFACTURED THEREAFTER DID NOT IN PRINCIPLE SATISFY THE CONDITIONS FOR CLASSIFICATION UNDER HEADING NO 99.05 .
6 THE FINANZGERICHT RHEINLAND-PFALZ TOOK THE VIEW THAT THE EXPLANATORY NOTES TO THE NOMENCLATURE OF THE CUSTOMS COOPERATION COUNCIL AND THE NATIONAL NOTES ON THE RELEVANT CHAPTERS DID NOT GIVE AN ADEQUATE INDICATION OF THE MINIMUM CONDITIONS WHICH MUST BE SATISFIED BEFORE AN ITEM MIGHT BE CLASSIFIED AS A COLLECTORS '
PIECE OF HISTORICAL INTEREST AND THEREFORE STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :
' WHAT MINIMUM CHARACTERISTICS MUST AN ARTICLE ( IN THIS INSTANCE, PISTOLS AND HOLSTERS ) DISPLAY IN ORDER TO BE ASSIGNED, AS A ' ' COLLECTORS '
PIECE OF HISTORICAL INTEREST ' ', TO HEADING NO 99.05 OF THE COMMON CUSTOMS TARIFF?
'
7 IN ITS OBSERVATIONS THE PLAINTIFF IN THE MAIN PROCEEDINGS FORWARDED AN EXPERT ' S OPINION FROM PROFESSOR W . HAHLWEG, THE FIRST PART OF WHICH IS DEVOTED TO THE HISTORICAL INTEREST OF ARMS COLLECTIONS . HE BASICALLY CONTENDS THAT IT IS NOT PROTOTYPES OR SPECIAL ITEMS, WHATEVER THEIR MERITS, THAT CONSTITUTE COLLECTORS '
PIECES OF HISTORICAL AND SCIENTIFIC INTEREST BUT ITEMS BELONGING TO HISTORICAL SETS OF ARMS, MADE UP OF MODELS FROM THE VERY BEGINNING TO THE LATEST STAGE OF PERFECTION . IN THE LIGHT OF THAT OBSERVATION THE SECOND PART OF THE OPINION CONTAINS AN ASSESSMENT OF THE ACTIVITIES OF COLLECTOR GUNS, WHICH ARE, ACCORDING TO PROFESSOR HAHLWEG, DIRECTED TOWARDS THE AIM OF FACILITATING THE SCIENTIFIC STUDY OF WEAPONS AND THE HISTORY OF CIVILIZATION AND THUS CANNOT BE CONFINED TO PROTOTYPES OR UNIQUE OR RARE ITEMS .
8 AT THE HEARING THE PLAINTIFF IN THE MAIN PROCEEDINGS CLAIMED FURTHER THAT FOR CLASSIFICATION UNDER HEADING NO 99.05 PISTOLS MUST IN THE FIRST PLACE BE ORIGINAL ITEMS, NO LONGER MASS-PRODUCED, AND BE THE SUBJECT OF A SPECIALIZED TRADE AT A PRICE ABOVE THEIR ORDINARY VALUE . IN THE SECOND PLACE, THEY MUST BE SUCH AS TO FURNISH KNOWLEDGE IN CONNECTION WITH HISTORICAL, INDUSTRIAL AND TECHNOLOGICAL DEVELOPMENTS ; THIS REQUIREMENT IS NOT RESTRICTED TO ITEMS CONNECTED WITH A HISTORICAL EVENT OR PERSONALITY . THUS IT IS NOT POSSIBLE TO EXCLUDE ALL MASS-PRODUCED ARMS FROM CLASSIFICATION UNDER HEADING NO 99.05 .
9 IN ITS OBSERVATIONS THE COMMISSION CONTENDED THAT IN ORDER NOT TO BE CLASSIFIED UNDER HEADING NO 93.02 PISTOLS MUST BE CLASSIFIABLE EITHER UNDER HEADING NO 99.06 AS ANTIQUES OR UNDER HEADING NO 99.05 . IT STATED THAT HEADING NO 99.05 DID NOT DEFINE THE TERM ' COLLECTORS '
PIECES OF . . . HISTORICAL . . . INTEREST '
OR LAY DOWN THE RELEVANT CRITERIA . IN ITS VIEW, THE APPROPRIATE CRITERION WAS AS FOLLOWS : THERE MUST BE SOME PERMANENT QUALITY, OBJECTIVELY ASCERTAINABLE AND OF GENERAL VALIDITY, WHICH DISTINGUISHES THE OBJECT FROM ANY SIMILAR OBJECT . IN THAT RESPECT THE COMMISSION CONSIDERS THAT THE TERM ' MUSEUM PIECE ', WHICH MAY BE APPLIED TO ANY FIREARM OF THE SAME PERIOD OR OF THE SAME KIND, IS NOT, BY REASON OF ITS GENERALITY, AN APPROPRIATE CRITERION . THE IMPORTANT FEATURE IS THE SPECIFIC HISTORICAL VALUE OF A PISTOL OR HOLSTER CONNECTED WITH A HISTORICAL EVENT OR PERSONALITY WHICH MEANS THAT IT CANNOT BE REPLACED BY ANOTHER SIMILAR ARTICLE . IT IS THEREFORE NOT SUFFICIENT THAT MASS-PRODUCED PISTOLS SHOULD ACQUIRE WITH THE PASSAGE OF TIME A CERTAIN VALUE AS TYPICAL, BUT ANONYMOUS AND REPLACEABLE, SPECIMENS OF A PARTICULAR PERIOD OR BRAND . SUCH PISTOLS, EVEN THOUGH, ACQUIRED BY A COLLECTOR, MUST BE CLASSIFIED UNDER HEADING NO 93.02 ( ' REVOLVERS AND PISTOLS ' ).
10 AS THE COURT HAS REPEATEDLY HELD, THE DECISIVE CRITERION FOR THE CUSTOMS CLASSIFICATION OF GOODS MUST BE SOUGHT GENERALLY IN THEIR OBJECTIVE CHARACTERISTICS AND QUALITIES, AS DEFINED IN THE RELEVANT HEADING OF THE COMMON CUSTOMS TARIFF AND IN THE NOTES TO THE SECTIONS OR CHAPTERS .
11 MOREOVER, FOR THE PURPOSE OF INTERPRETING THE COMMON CUSTOMS TARIFF THE COURT HAS CONSISTENTLY HELD THAT BOTH THE NOTES WHICH HEAD THE CHAPTERS OF THE COMMON CUSTOMS TARIFF AND THE EXPLANATORY NOTES TO THE NOMENCLATURE OF THE CUSTOMS COOPERATION COUNCIL ARE IMPORTANT MEANS FOR ENSURING THE UNIFORM APPLICATION OF THE TARIFF AND AS SUCH MAY BE REGARDED AS USEFUL AIDS TO ITS INTERPRETATION . FOR THE PURPOSE OF INTERPRETING THE ABOVEMENTIONED TARIFF HEADINGS IT IS THEREFORE NECESSARY TO TAKE ACCOUNT NOT ONLY OF THE WORDING AND SYSTEM OF THE COMMON CUSTOMS TARIFF BUT ALSO OF THE EXPLANATORY NOTES .
12 IN ADDITION, SINCE IT IS A QUESTION OF INTERPRETING A HEADING ALLOWING DUTY-FREE IMPORTATION, IT IS NECESSARY TO TAKE ACCOUNT OF THE PURPOSE OF THE EXEMPTION . THE EXEMPTIONS IN CHAPTER 99 OF THE COMMON CUSTOMS TARIFF ARE INTENDED TO FACILITATE INTERNATIONAL TRADE IN OBJECTS OF CULTURAL AND EDUCATIONAL VALUE AND THAT AIM IS DECISIVE FOR THE INTERPRETATION OF THE HEADING IN QUESTION .
13 IT IS APPARENT FROM CONSIDERATION OF THE FIRST SENTENCE OF THE TEXT OF HEADING NO 99.05, HAVING REGARD TO THE VARIOUS LANGUAGE VERSIONS OF THE COMMON CUSTOMS TARIFF, THAT AN ITEM COMES UNDER THAT HEADING IF IT IS SUITABLE IN ITSELF FOR INCLUSION IN THE COLLECTION . THE DANISH, DUTCH, ENGLISH, FRENCH, GERMAN, GREEK AND ITALIAN VERSIONS ( ' SAMLEROBJEKTER ', ' VOORWERPEN VOOR VERZAMELINGEN ', ' COLLECTORS '
PIECES ', ' OBJETS POUR COLLECTIONS ', SAMMLUNGSSTUCKE, ' EIDH SYLLOGVN ', AND ' OGGETTI DA COLLEZIONE ' ) ALL CONTAIN A WORD MEANING ' COLLECTOR '
OR ' COLLECTION ' . THAT CONCEPT MUST BE INTERPRETED, IN PARTICULAR, IN ACCORDANCE WITH THE PRINCIPLE THAT TARIFF CLASSIFICATION MUST TAKE PLACE ON THE BASIS OF THE OBJECTIVE CHARACTERISTICS AND PROPERTIES OF THE GOODS IN QUESTION .
14 IT MUST BE NOTED IN THE FIRST PLACE THAT THE CUSTOMS COOPERATION COUNCIL ' S EXPLANATORY NOTES TO CHAPTER 99, ( ' WORKS OF ART, COLLECTORS '
PIECES AND ANTIQUES ' ) READ ' MOST ARTICLES FALLING IN THE PRESENT CHAPTER ARE EITHER UNIQUE OR AT LEAST EXIST IN SUCH VERY SMALL NUMBERS THAT THEY MAY NOT BE FREELY AVAILABLE FOR PURCHASE ' . MOREOVER, ALTHOUGH PRIMA FACIE HEADINGS NOS 99.01 AND 99.03 MAY BE REGARDED AS BEING CONCERNED WITH UNIQUE ITEMS, THE SAME IS NOT TRUE OF THE REMAINING HEADINGS OF THE CHAPTER, WHICH COVER, FOR EXAMPLE, ORIGINAL ENGRAVINGS AND LITHOGRAPHS, ANTIQUES AND POSTAGE STAMPS NOT OF CURRENT ISSUE, WHICH MAY NOT BE UNIQUE .
15 IT FOLLOWS THAT IN ORDER TO BE SUITABLE FOR INCLUSION IN A COLLECTION WITHIN THE MEANING OF HEADING NO 99.05 AN ARTICLE MUST BE RELATIVELY RARE . CONSEQUENTLY, ARTICLES WHICH HAVE PREVIOUSLY BEEN MASS-PRODUCED BUT WHICH CURRENTLY EXIST ONLY IN A LIMITED NUMBER, SO THAT THEY CANNOT BE EASILY OBTAINED, SATISFY THAT REQUIREMENT .
16 THE AFORESAID EXPLANATORY NOTES GO ON TO STATE THAT ARTICLES COMING UNDER CHAPTER 99 ' AS A RULE . . . ARE NOT DEALT WITH IN ORDINARY COMMERCIAL TRANSACTIONS ; SOME ARE, HOWEVER, HANDLED BY A SPECIALIZED TRADE ( POSTAGE STAMPS, ANTIQUES, ETC .). THEY ARE OFTEN OF GREAT VALUE, OUT OF ALL PROPORTION TO THE VALUE OF THEIR CONSTITUENT MATERIALS ' .
17 IT FOLLOWS THAT A FURTHER CHARACTERISTIC OF THE ARTICLES IN QUESTION, LINKED TO THE PREVIOUS ONE, IS THAT THEY ARE NOT TRADED ON THE ORDINARY MARKET AND MAY FETCH A HIGH PRICE .
18 FINALLY, IT MUST BE OBSERVED THAT COLLECTORS '
PIECES ARE NOT NORMALLY USED FOR THEIR ORIGINAL PURPOSE, ALTHOUGH IT CANNOT BE RULED OUT THAT THEIR FUNCTIONAL CAPACITY MAY REMAIN INTACT .
19 HOWEVER, FOR CLASSIFICATION UNDER HEADING NO 99.05 IT IS NOT SUFFICIENT THAT AN ARTICLE SHOULD SATISFY ONLY THE CRITERIA FOR COLLECTORS '
PIECES SET OUT ABOVE . IT MUST ALSO BE OF ' HISTORICAL INTEREST ' . ARTICLES WHICH POSSESS SUCH INTEREST, ACCORDING TO THE CUSTOMS COOPERATION COUNCIL ' S EXPLANATORY NOTES TO HEADING NO 99.05, INCLUDE ' ARTICLES HAVING A BEARING ON THE STUDY OF THE ACTIVITIES, MANNERS, CUSTOMS AND CHARACTERISTICS OF CONTEMPORARY OR EARLIER PEOPLES . THIS CATEGORY INCLUDES : MUMMIES ; SARCOPHAGI ; WEAPONS ; OBJECTS OF WORSHIP ; ARTICLES OF APPAREL ; ARTICLES USED BY PRIMITIVE RACES ; ARTICLES WHICH HAVE BELONGED TO CELEBRITIES . '
20 IT MUST BE OBSERVED, IN THE FIRST PLACE, THAT THIS HEADING COVERS ARTICLES WHICH ARE LESS THAN 100 YEARS OLD, SINCE ARTICLES OLDER THAN THAT FALL UNDER HEADING NO 99.06 .
21 IT IS ALSO IMPORTANT TO POINT OUT THAT NEITHER THE WORDING OF HEADING NO 99.05 NOR THE AFORESAID EXPLANATORY NOTES REFER ONLY TO THE GENERAL HISTORY OF NATIONS . THE TERM ' HISTORY '
INCLUDES THE EVOLUTION OF MANKIND AND HUMAN ACHIEVEMENTS IN ALL FIELDS .
22 IT FOLLOWS THAT AN ARTICLE CONNECTED WITH HUMAN ACHIEVEMENTS, INCLUDING THOSE IN THE FIELD OF TECHNOLOGY, MAY, BECAUSE IT MARKS A SIGNIFICANT STEP IN THE EVOLUTION OF HUMAN ACHIEVEMENTS OR ILLUSTRATES A PERIOD OF THAT EVOLUTION, BE OF HISTORICAL INTEREST WITHIN THE MEANING OF HEADING NO 99.05 OF THE COMMON CUSTOMS TARIFF .
23 IN THAT RESPECT ATTENTION MUST BE DRAWN TO THE FACT THAT THE EXPLANATORY NOTES EXPRESSLY INCLUDE WEAPONS AMONG THE ARTICLES WHICH HAVE A BEARING ON THE STUDY OF HUMAN ACTIVITY . FOR THAT PURPOSE IT IS NOT NECESSARY THAT THE ARTICLES IN QUESTION SHOULD BE CONNECTED WITH A HISTORICAL EVENT OR PERSONALITY, ALTHOUGH ' ARTICLES WHICH HAVE BELONGED TO CELEBRITIES '
COME UNDER HEADING NO 99.05 EVEN IF THEY ARE NOT PER SE OF HISTORICAL INTEREST .
24 ACCORDINGLY, THE PRELIMINARY QUESTION MUST BE ANSWERED AS FOLLOWS :
COLLECTORS '
PIECES WITHIN THE MEANING OF HEADING NO 99.05 OF THE COMMON CUSTOMS TARIFF ARE ARTICLES WHICH POSSESS THE REQUISITE CHARACTERISTICS FOR INCLUSION IN A COLLECTION, THAT IS TO SAY, PIECES WHICH ARE RELATIVELY RARE, ARE NOT NORMALLY USED FOR THEIR ORIGINAL PURPOSE, ARE THE SUBJECT OF SPECIAL TRANSACTIONS OUTSIDE THE NORMAL TRADE IN SIMILAR UTILITY PIECES AND ARE OF HIGH VALUE .
COLLECTORS '
PIECES WHICH EVIDENCE A SIGNIFICANT STEP IN THE EVOLUTION OF HUMAN ACHIEVEMENTS OR ILLUSTRATE A PERIOD OF THAT EVOLUTION ARE TO BE REGARDED AS BEING OF HISTORICAL INTEREST FOR THE PURPOSES OF HEADING NO 99.05 OF THE COMMON CUSTOMS TARIFF .
Decision on costs
COSTS
25 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( THIRD CHAMBER ),
IN REPLY TO THE QUESTION REFERRED TO IT BY THE FINANZGERICHT RHEINLAND-PFALZ BY AN ORDER OF 10 OCTOBER 1984, HEREBY RULES :
COLLECTORS '
PIECES WITHIN THE MEANING OF HEADING NO 99.05 OF THE COMMON CUSTOMS TARIFF ARE ARTICLES WHICH POSSESS THE REQUISITE CHARACTERISTICS FOR INCLUSION IN A COLLECTION, THAT IS TO SAY, ARTICLES WHICH ARE RELATIVELY RARE, ARE NOT NORMALLY USED FOR THEIR ORIGINAL PURPOSE, ARE THE SUBJECT OF SPECIAL TRANSACTIONS OUTSIDE THE NORMAL TRADE IN SIMILAR UTILITY ARTICLES AND ARE OF HIGH VALUE .
COLLECTORS '
PIECES WHICH EVIDENCE A SIGNIFICANT STEP IN THE EVOLUTION OF HUMAN ACHIEVEMENTS OR ILLUSTRATE A PERIOD OF THAT EVOLUTION ARE TO BE REGARDED AS BEING OF HISTORICAL INTEREST FOR THE PURPOSE OF HEADING NO 99.05 OF THE COMMON CUSTOMS TARIFF .