CELEX: 61984CC0200
Language: en
Date: 1985-07-04
Title: Joined opinion of Mr Advocate General Lenz delivered on 4 July 1985. # Erika Daiber v Hauptzollamt Reutlingen. # Reference for a preliminary ruling: Finanzgericht Baden-Württemberg - Germany. # Common customs tariff - Collectors' pieces of historical or ethnographic interest - Old cars. # Case 200/84. # Collector Guns GmbH & Co. KG v Hauptzollamt Koblenz. # Reference for a preliminary ruling: Finanzgericht Rheinland-Pfalz - Germany. # Common customs tariff - Collectors' pieces of historical interest - Antique pistols and holders. # Case 252/84.

OPINION OF MR ADVOCATE GENERAL LENZ
      delivered on 4 July 1985 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               A. 
            
            
               The two cases in which I am today giving my opinion are concerned with the interpretation of Heading No 99.05 of the Common Customs Tariff, which applies to ‘collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, palaeontological, ethnographic or numismatic interest’.
               Although the two cases have not been formally joined by the Court, they were taken together at a single sitting. I shall therefore consider the two cases together in my Opinion.
               
                        1.
                     
                     
                        The following are the facts of Case 200/84 (Erika Daiber v Hauptzollamt Reutlingen):
                        
                        In 1980 the plaintiff imported a secondhand Daimler-Benz 300 SL-Coupé passenger motor car, year of manufacture 1955, from the United States into the Federal Republic of Germany. She requested duty-free customs clearance for the vehicle as a collectors' piece of historical interest under Heading No 99.05 of the Common Customs Tariff. The Customs Office complied with the request and assigned the imported vehicle to Heading No 99.05 of the Common Customs Tariff.
                        Following a change in the official attitude the Customs Office ceased to regard the imported car as a collectors' piece of historical interest but as a motor vehicle for the transport of persons within the meaning of Heading No 87.02 A I (b) of the Common Customs Tariff. It considered that motor vehicles which had been mass-produced since 1950 — irrespective of whether only a few were produced or technical constructional modifications were made to them — basically possessed no ‘historical interest’ within the meaning of Heading No 99.05 because of their recent manufacture. It was immaterial that such vehicles were acquired by and exhibited in museums as objects exemplifying the development of motor vehicle manufacture. By a decision of 4 November 1981 the Customs Office amended its original decision of 14 May 1980 and claimed from the plaintiff customs duty at the rate of 10.9% on the value for customs of DM 65000, that is DM 6388.60.
                        The objection lodged against that decision was dismissed as unfounded by a decision of 27 October 1982.
                        By an order of 25 July 1984 the Finanzgericht [Finance Court] Baden-Württemberg sitting at Freiburg, before which the matter had come by way of appeal from the decision dismissing the objection, referred the following two questions to the Court of Justice for a preliminary ruling:
                        ‘How are the terms “collectors' piece” and “of historical... ethnographic... interest” in Heading No 99.05 of the Common Customs Tariff to be interpreted?
                        
                                 (1)
                              
                              
                                 Is an article a “collectors' piece” only if it is particularly uncommon and is therefore a rarity or is it sufficient that the article is suitable for inclusion in a collection assembled in accordance with scientific principles, in particular in a public museum (suitability for museum purposes) ?
                              
                           
                                 (2)
                              
                              
                                 Is an original collectors' piece of “historical” or “ethnographic interest” only if it is representative of a period in the general historical development of one or more nations and in that sense is of exemplary significance, or is it sufficient that the article is apt to contribute to historical education in a specific field (for example the manufacture of motor cars) ?’
                              
                           It is apparent from the order for reference that the national court was inclined to assign the imported motor car to Heading No 99.05. It could however see no clear answer to the question. There were no Community explanatory notes on Chapter 99 of the Common Customs Tariff; the Customs Cooperation Council's Explanatory Notes to Chapter 99 referred to collectors' pieces and antiques without drawing any distinction, merely stating that ‘most articles... are... unique’; collectors' pieces were ‘often’ of little intrinsic value but derived their interest from their rarity, their grouping or their presentation. According to the German national instructions, only ‘rarities’, ‘unique examples’ and items of ‘recognized exemplary significance’ were collectors' pieces within the meaning of Heading No 99.05 of the Common Customs Tariff, which therefore excluded articles which were merely suitable for museum purposes. However, the national administrative instructions could not restrict the scope of Heading No 99.05 of the Common Customs Tariff if it was wider.
                        In its second question the Finanzgericht Baden-Württemberg again referred to the Customs Cooperation Council's Explanatory Notes, according to which Heading No 99.05 might include, as collectors' pieces of historical or ethnographic interest, the following: ‘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.’ The Explanatory Notes thereby left open the possibility of also attributing historical interest to such articles which were relevant only to special historical fields, for example the manufacture of motorcars.
                     
                  
                        2.
                     
                     
                        In Case 252/84 (Collector Guns GmbH & Co. KG v Hauptzollamt Koblenz) the plaintiff requested customs clearance under Heading No 99.05 of the Common Customs Tariff as collectors' pieces of historical interest for pistols and pistol holsters imported from the USA. The Customs Office did not regard the goods, however, as collectors' pieces but assigned them as firearms and articles of leather to Heading Nos 93.02 and 42.02 of the Common Customs Tariff respectively and levied DM 441.30 customs duty.
                        By an order of 10 October 1984 the Finanzgericht Rheinland-Pfalz, before which the matter came after an unsuccessful objection, referred the following question to the Court of Justice 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? ’
                        The Finanzgericht also referred to the aforementioned Explanatory Notes to the Nomenclature of the Customs Cooperation Council but found them insufficiently clear to settle the particular case. The Notes failed to 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. They shed no light on the question whether articles which were merely suitable for museum purposes were excluded from the scope of Heading No 99.05 of the Common Customs Tariff.
                     
                  
                        3.
                     
                     
                        
                                 (a)
                              
                              
                                 The plaintiff in Case 200/84, followed the order for reference made by the Finanzgericht Baden-Württemberg, distinguishes between the two expressions ‘collectors' pieces’ and ‘of historical interest’.
                                 In her view, collectors' pieces include all articles which cannot be procured or reproduced at will. They are articles which are not consumed or used for their original purpose but are intended for permanent inclusion and exhibition in a collection of the same or similar pieces. Collectors' pieces always have a higher value than corresponding articles which are not intended for inclusion in a collection. It is not its particular infrequency, its quality as a rarity, which can make an article a collectors' piece; the sole criterion is its relative infrequency, which on account of the excessive demand for it makes the article a collectors' piece and gives it a value over and above its intrinsic value. If ‘collectors' piece’ is understood in this sense, its suitability as a museum piece is implied.
                                 According to the plaintiff, the term ‘of historical interest’ must be interpreted as a reference to the article's ability to contribute to the study of a particular branch of history, for example the construction of the motor car. It is not necessary for the article to mark an epoch in the general historical development of one or more nations. The multifariousness of human activity does not allow the historical interest of an article to be decided according to whether or not it is of significance for the development of mankind, that is for general history. Such a restriction would limit the concept of history to an area which was no longer open to discussion.
                                 In addition, the plaintiff explains why the motor car she has imported is a ‘technological monument’. I do not intend to rehearse those observations, which are certainly very interesting, for the Court is called upon in these proceedings solely to interpret Heading No 99.05 of the Common Customs Tariff. The question whether the imported motor car falls under that heading involves the application of the correct interpretation of Heading No 99.05. The specific application falls within the jurisdiction of the national court.
                                 In conclusion, the plaintiff in Case 200/84 proposes that the Finanzgericht Baden-Württemberg should be answered as follows :
                                 
                                          ‘(1)
                                       
                                       
                                          For the interpretation of the term “collectors' piece” no importance attaches to the particular rarity of the article: the criterion is that it is not consumed or used for its particular function but is intended to serve as a collectors' piece for permanent placing and exhibition in a collection of the same or similar pieces, that is to say, it is suitable for placing in a collection, especially that of a public museum, which is built up on scientific principles.
                                       
                                    
                                          (2)
                                       
                                       
                                          A collectors' piece is of historical or ethnographic interest if it is likely to contribute to the study of a particular branch of history, for example the construction of the motor car; it is not necessary for the article to mark a section in the general historical development of one or more nations and in that sense to be important as being a specimen. Whether a technological article is mass-produced or whether there are surviving specimens is irrelevant; the sole criterion is whether it is of interest for the history of technology.’
                                       
                                    
                           
                                 (b)
                              
                              
                                 In the view of Collector Guns GmbH & Co. KG, the plaintiff in Case 252/84, the term ‘history’ is not confined to the history of war and government. History in the contemporary sense covers everything which falls within the study of all the manifestations of human activity. In particular the branches of history, such as cultural history, industrial history, the history of the development of manufacturing and the history of technology in general are covered by the term ‘history’. The plaintiff considers it too narrow an interpretation of ‘collectors' piece of historical interest’ to confine it to articles which are directly related to a particular historical event or personality.
                                 In conclusion the plaintiff in Case 252/84 proposes that the question raised by the Finanzgericht Rheinland-Pfalz should be answered as follows:
                                 ‘Pistols and pistol holsters which satisfy the following conditions are to be regarded as collectors' pieces of historical interest within the meaning of Heading No 99.05:
                                 
                                          (1)
                                       
                                       
                                          They must no longer be mass-produced.
                                       
                                    
                                          (2)
                                       
                                       
                                          They must be originals which were manufactured during the relevant period and not be copies.
                                       
                                    
                                          (3)
                                       
                                       
                                          They must be available only in a limited number and obtainable only through the specialized trade or with considerable difficulty and the price must be considerably above the material and functional value.
                                       
                                    
                                          (4)
                                       
                                       
                                          They must be such as to demonstrate developments in history, cultural history, industrial, history, technology and industrial engineering in the widest sense, and be evidence thereof.
                                       
                                    
                                          (5)
                                       
                                       
                                          Finally, even if the criteria (1) to (4) are not fulfilled, individual pieces directly related to a particular historical event or personality are included in Heading No 99.05.
                                       
                                    
                           
                                 (c)
                              
                              
                                 The Commission takes the view in Case 200/84 that all observations on the interpretation of Heading No 99.05 of the Common Customs Tariff must proceed from the assumption that all articles which are claimed to be collectors' pieces of historical interest must, from the point of view of their material, substantive or functional characteristics, fall under other headings relating to their ‘normal’, ‘regular’ or ‘general’ use. It follows from the system of customs law and the need for unambiguity that classification under Heading No 99.05 can be considered only if the relevant articles are not imported for their actual substantive, material or functional purposes but as collectors' pieces for permanent placing and exhibition in a collection of the same or similar pieces. There can be no general answer to the question which qualities distinguish a collectors' piece from a utility piece within the meaning of the particular relevant headings. Objective criteria such as age, rarity or origin can provide important indications about a collectors' piece but the ultimate criteria are however only of a subjective nature: only an article's suitability for inclusion in a collection determines whether it may be or become a collectors' piece; that again is determined solely by the interest of the collector or collectors.
                                 The Commission observes that, from among the abundance of possible interests of collectors, Heading No 99.05 of the Common Customs Tariff singles out for preferential treatment only articles which are of zoological, botanical, mineralogical, anatomical, historical, archeological, palaeontological, ethnographic or numismatic interest. In particular, there is no independent privilege for collectors' pieces which are of a technical or scientific nature. They may therefore enjoy duty-free treatment only if they are of historical interest or may be regarded as antiques within the meaning of Heading No 99.06.
                                 The Commission then mentions certain groups of articles which may be cited as examples of articles of historical interest. In the first place, it mentions articles embodying history such as historically significant documents, records, letters and suchlike. In the second place, it mentions objects connected with historical personalities, such as articles of personal use, personal interest or striking objects from the possession of historical personalities. In the third place, it mentions articles exemplifying stages in historical development, especially cultural development, trends and opinions.
                                 Articles of a technical nature, such as motor cars, may fall within the third category if the interest which they present at an early stage for the science historian develops with the passage of time and in retrospect into a general historical interest, especially from the point of view of cultural history. However, technical articles which are mass-produced cannot, so long as there are numerous examples of them, be of historical interest.
                                 For those reasons the Commission proposes that the questions from the Finanzgericht Baden-Württemberg should be answered as follows :
                                 
                                          ‘(1)
                                       
                                       
                                          The rarity of an article or its suitability for inclusion in a collection built up on scientific principles (suitability for a museum) may provide important evidence that it is a collectors' piece of historical or ethnographic interest within the meaning of Heading No 99.05 of the Common Customs Tariff, but those factors are not necessarily sufficient in themselves in every case to confer on the article the quality of a collectors' piece. The question whether an article is a collectors' piece of historical or ethnographic interest is determined according to whether the public regard it as such and thus confer on the article general historical or ethnographic interest.
                                       
                                    
                                          (2)
                                       
                                       
                                          A technological article which has been mass-produced, such as a motor car, can be regarded as a collectors' piece of historical interest within the meaning of Heading No 99.05 of the Common Customs Tariff only if the interest which it presents for the science historian has developed into general historical interest. On no account can a mass-produced article be regarded as a collectors' piece of historical interest so long as there are still hundreds of similar examples thereof or almost a third of the total production.’
                                       
                                    
                           
                                 (d)
                              
                              
                                 In Case 252/84 the Commission observes that, according to the scheme and letter of the Common Customs Tariff, small-arms come under Heading No 93.02 (revolvers and pistols). That classification is independent of whether the pistols in question are still usable or not and who has imported them in the particular case and for what purpose. Heading No 99.05 is not a general repository for used arms or personal mementoes of every kind; additional requirements must be satisfied. The fact that imports thereof are made by a specialist dealer is evidence of the suitability of the weapon as a collectors' piece, albeit insufficient to give the specific aniele an individual quality distinguishing it from every other similar article. That applies especially to the concept of ‘suitability for a museum’, that is to say, suitability for inclusion in a collection built up on scientific principles, especially in a public museum. For classification under Heading No 99.05 it is much more relevant that the particular pistol should possess some historical interest applying to itself alone, so that it cannot be replaced by another similar specimen. For that purpose likely specimens are those which are closely connected with certain historical events, persons or places, such as the arms used in a famous assassination or those which belonged to a historical personality. The fact that, in the case of a mass-produced pistol, it may be a typical but anonymous and replaceable specimen of a particular period or brand is not sufficient.
                                 Moreover, Regulation No 918/83 setting up a Community system of reliefs from customs duty (
                                       1
                                    ) allows public museums to obtain relief from customs duties in respect of articles imported for the purpose of inclusion in their collections. That regulation would be incomprehensible if suitability for inclusion in a museum and a corresponding intention on the part of the importer were sufficient for duty-free classification under Heading No 99.05.
                                 The Commission therefore proposes that the question put by the Finanzgericht Rheinland-Pfalz should be answered as follows :
                                 ‘Pistols and pistol holsters are to be classified as “collectors' pieces of historical interest” under Heading No 99.05 only if it is apparent, according to objective criteria, that the particular piece is connected with particular historical events or persons and cannot be replaced by any similar specimen.’
                              
                           
                  
         
               B. 
            
            
               In my Opinion I shall follow the example of the Finanzgericht Baden-Württemberg and first discuss the expression ‘collectors' piece’ and then deal with the expression ‘of historical and ethnographic interest’. When those two terms have been clarified the question from the Finanzgericht Rheinland-Pfalz may be answered, namely ‘what minimum characteristics must an article display in order to be assigned, as a collectors' piece of historical interest, to Heading No 99.05?’
               As a preliminary it may be observed that the interpretation of Heading No 99.05 is new territory, since so far there have been neither judgments of the Court thereon nor Community tariff decisions or even Community explanatory notes.
               The meaning of the heading must therefore be determined on the basis of the general principles of interpretation. A purely literal interpretation seems to me not to lead to a clear result since the various language versions of the heading differ somewhat from one another. (
                     2
                  )
               Heading No 95.05 must therefore be interpreted according to the purpose and scheme of the Common Customs Tariff. For that purpose the Explanatory Notes of the Customs Cooperation Council provide an important aid to interpretation, without however being legally binding. (
                     3
                  )
               
                        1.
                     
                     
                        I turn first to the interpretation of the expression ‘collectors' piece’. The Finanzgericht Baden-Württemberg asks whether an article must be particularly uncommon, and therefore a rarity, or is it sufficient that the article is suitable for inclusion in a collection assembled in accordance with scientific principles (suitable for a museum).
                        First, a comparison must be made of the various language versions, which are to be found annexed to this opinion. A literal translation of the corresponding expression used in the French, Italian and Dutch versions of this heading is ‘pieces for collections’; the Greek is ‘pieces from collections’ and the English and Danish is ‘collectors' pieces’. A comparison of these terms leads to the conclusion that a particular purpose for the article, namely inclusion in a collection, cannot necessarily be required. It must therefore suffice that the article is suitable for inclusion in a collection. Such an interpretation also meets the needs of the customs authorities, for they must be in a position to classify the imported goods according to their objective qualities and not according to the subjective intention of the importer, which may well change in the course of time.
                        To answer the question whether the article must be particularly uncommon, a rarity or a single specimen it is reasonable to refer to the Explanatory Notes of the Customs Cooperation Council Nomenclature. They contain the following comments on Chapter 99:
                        ‘Most goods falling within this chapter are frequently unique specimens or at least exist in such small numbers that they are not freely available for purchase.
                        They are not as a rule dealt with in ordinary commercial transactions but are handled by a specialized trade, and are often of great value, out of all proportion to the value of their constituent materials.’
                        Thus, according to the Explanatory Notes of the Customs Cooperation Council, no absolute but only a relative rarity is required. That may also be confirmed by looking at the description of goods in Heading Nos 99.01 to 99.06. Although in the case of paintings and drawings under Heading No 99.01, and perhaps also of original sculptures and statuary under Heading No 99.03, it should be a question of individual pieces, that is not necessarily the case for engravings and prints under Heading No 99.02 or antiques under Heading No 99.06; apart from certain exceptions, absolute rarity is also not necessary in the case of postage stamps under Heading No 99.04. A requirement of absolute rarity cannot therefore be inferred from the general context of Chapter 99, so that articles of which several specimens still exist may be classified under this chapter of the Common Customs Tariff, provided there are not too many.
                        A decisive feature in classifying an article as a collectors' piece seems to me, however, to be the fact that it is not a common article of trade but an article confined to the specialist trade. It is not constantly available in trade, but comes on the market occasionally. The limited availability of such articles and the demand for them in excess of their availability explains their frequently high value or price, which bears no relationship to their intrinsic value. That is borne out by the price paid for the motor car imported in Case 200/84. Normally secondhand cars fetch a lower price than new cars; the price for a 30-year old secondhand car ought to be considerably lower than that of a new car. If, however, such an article is bought at several times the price of a new car, that is an indication that the value thereof is not based on its original intended use but on other criteria. Those other criteria must normally be the interests of collectors.
                        For the rest, I refer to the relevant observations in my Opinion in Case 155/84, which was concerned with the customs classification of a work of art. (
                              4
                           ) It is true that the argument about the price of the article in comparison with its intrinsic value was not in itself decisive, but it was one of the factors in that case favouring the application of Chapter 99. The Court also referred to that argument in paragraph 11 of its decision.
                        A further matter to be considered in this connection is the question of earlier mass-produced products. I do not think it out of the question that earlier mass-produced products may be regarded as collectors' pieces. They must, however, no longer be mass-produced and thus no longer readily available. Further, there must be only a limited number of them.
                        Finally, the question must be considered whether the fact that the article may be used prevents it from being regarded as a collectors' piece. In the specific instance the question is whether the imported pistols may still be fired or the imported motor car still be driven and whether that means that the articles must be classified under the Common Customs Tariff on a utility basis.
                        I do not think that the usability of the article necessarily excludes it from Heading No 99.05. Even a very old and rare collectors' piece may be in such a condition that it could be put to its original use. The decisive question is how, having regard to the value generally attributed to the article, the average person, looking at it objectively, would use it. I do not wish to rely on subjective intentions, which I have already rejected as an invalid criterion, but the normal use which an objective average person would consider proper for the article. Without wishing to anticipate the specific judgment of the national court, I cannot imagine that an average owner would use for daily purposes, as a motor car, a 30-year old vehicle which no longer meets the technical standards of today, but is nevertheless very expensive and relatively rare. Similar observations also apply to old or obsolete weapons, even if they are still usable.
                     
                  
                        2.
                     
                     
                        I come now to the second term in Heading No 99.05 which is at issue between the parties, namely ‘historical’ or ‘ethnographic interest’.
                        Here, too, certain nuances may be observed between the various language versions of the Common Customs Tariff. In the German version there is mention of historical or ethnographic ‘value’, but the English, Greek, French and Italian versions speak of ‘historical’ and ‘ethnographic interest’ and the Dutch version of ‘historical’ and ‘ethnographic significance’, whereas the Danish simply refers to ‘historical’ and ‘ethnographic collectors' pieces’.
                        The main issue between the parties in this regard is whether the history of technology constitutes history for the purposes of Heading No 99.05. I should like, however, to deal simultaneously with the question whether ‘technological monuments’ come under history or ethnography since, as I shall explain later, the history of technology could be covered by both concepts.
                        In its observations the Commission advocated a restrictive definition of history basically confined to ‘political history’. The two plaintiffs in the main proceedings on the other hand take the view that history should be defined (for the purpose of Heading No 99.05) as including the history of technology.
                        Let me once again cite the following observations from the Customs Cooperation Council's Explanatory Notes:
                        ‘Collections and collectors' pieces of historical, ethnographic, palaeontological or archeological interest, for example :
                        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.’
                        As we can see, the Explanatory Notes do not clearly distinguish between the individual terms of Heading No 99.05; I think that is right, for the terms are quite capable of overlapping.
                        I cannot agree with the Commission's restrictive interpretation which limits history basically to general or political history and brushes over the term ‘ethnography’ (that may have been suggested by the question in Case 252/84).
                        At least according to the more recent view, which is at the basis of the Explanatory Notes, the term ‘history’ can no longer be confined to political history or the history of government and war. That is confirmed by a glance at a new German-language dictionary in which under the entry ‘history’ the following definitions are to be found :
                        ‘In a wide sense, a development becoming apparent from a succession of various events; in that sense nature, the earth, plants and animals have their history. In a narrow sense history means the development of mankind and his cultural achievements (constitution, law, economy, religion, technology and so forth). In its narrowest sense history means the science of history, which presupposes the gradual fading of direct consciousness of history, critical discussion of the past and the credibility and probative value of historical sources.’ (
                              5
                           )
                        Although it may not seem appropriate to include natural history in the term ‘history’ for the purposes of Heading No 99.05 (the reference to palaeontology, archaeology and ethnography seems already largely to cover that branch of history), nevertheless there is no suggestion in that heading that ‘history’ means simply ‘political history’. I therefore agree with the Explanatory Notes that the term ‘history’ in Heading No 99.05 concerns the study of all manifestations of human activity. That concept of ‘history’ includes, apart from political history of course, cultural history and the history of technology.
                        However, that concept of history must be supplemented by the term ‘ethnography’, since it is contained in Heading No 99.05. The aforementioned dictionary contains the following definition under the entry ‘ethnography’:
                        ‘Study of man as a being responsible for and conditioned by culture.... The continually increasing amount of material has necessitated an extensive specialization not only as regards subject-matter (study of economy, technology, settlement, relationship, law, custom, usages and religion), but also as regards the region covered... ’. (
                              6
                           )
                        Thus, since the development or history of technology can come under the term ‘ethnography’, it is clear to me that the history of technology is in any event covered by Heading No 99.05 and it is not necessary to discuss whether it forms part of history or ethnography.
                     
                  
                        3.
                     
                     
                        If that leads to the conclusion that ‘collectors' pieces of historical or ethnographic interest’ can include objects which are relevant to the history of technology, it is in accord with the scheme of the Common Customs Tariff. In that connection I am again unable to agree with the Commission's view to the effect that in such a contested classification the two relevant headings must be compared in order to decide under which heading the particular article falls. That is not right at least in so far as the question whether an article is to be classified under Chapter 99 or some other chapter of the Common Customs Tariff is not the typical classification problem. The question is not whether an article is to be classified under Chapter 99 or some other chapter: the special feature of Chapter 99 is that it generally covers articles which also come under other chapters of the Common Customs Tariff. It is just for such a conflict of rules that Note 4 (a) to Chapter 99 provides a solution:
                        ‘Subject to Notes 1 to 3 above, articles falling within headings of this Chapter are to be classified in whichever of those headings is appropriate and not in any other heading of the Tariff.’
                        The Common Customs Tariff thus shows that classification of articles under Chapter 99 clearly has precedence. I should have had no hesitation in advocating such precedence even if doubts had remained, which is however not the case here.
                     
                  
                        4.
                     
                     
                        Finally, a wide interpretation of Heading No 99.05 accords with the object of the Common Customs Tariff.
                        At the hearing it was agreed that the object of the customs tariff is to protect production within the Community. Even the Commission has not maintained that the duties levied by the Community are to be regarded as revenue, even though Article 2 (b) of the Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources provides that the Common Customs Tariff duties are to constitute own resources of the Communities and they represented, for example, in the 1984 financial year some 30% of the revenue.
                        If the function of the Common Customs Tariff is to protect production within the Community, the question arises what production is intended to be protected against the importation of used articles such as those in question. I cannot conceive that there is any competition between such articles and goods of current Community production.
                        In that connection it should be mentioned that goods which are imported under Chapter 99 enter free of duty: that was the position when the Common Customs Tariff was adopted in 1968; it was the position when the goods in issue were imported and is still the position today. The Commission contended that in interpreting the Nomenclature of the Common Customs Tariff there should be no reference to the rate of duty since that is either fixed by treaty or independently from time to time. That may well be the case in general: we are not required to decide that point now. In interpreting Chapter 99, which already in relation to competition has special features vis-à-vis the other chapters, we should not completely disregard the duty-free aspect. Chapter 99 is intended to encourage trade in cultural goods by exempting from duty works of art, collectors' pieces and antiques, in the event of their being more than 100 years old. To that extent Chapter 99 of the Common Customs Tariff implements Article IV of the Agreement of 22 November 1950 on the importation of educational, scientific and cultural materials, which contains a resolution to promote by every means the free circulation of such materials. (
                              7
                           )
                        That conclusion is not affected by the fact that as a result of the special rules on the Community system of duty-free imports or the importation free of Common Customs Tariff duties of educational, scientific and cultural materials (
                              8
                           ) collectors' pieces and works of art may be imported duty-free if they are intended for museums and other institutions. The scope of the ‘special rules’ and that of Chapter 99 differ, even if they overlap in particular cases. The ‘special rules’ permit for example the duty-free importation of a contemporary mass-produced product if it is not intended for sale but for museums and recognized institutions. Chapter 99, on the other hand, does not allow such a duty-free importation.
                        No compelling argument for a restrictive interpretation of Chapter 99 of the Common Customs Tariff can thus be derived from the existence of special rules.
                     
                  
         
               C. 
            
            
               In conclusion, I propose that the Court should answer the questions from the Finanzgericht Baden-Württemberg and the Finanzgericht Rheinland-Pfalz as follows:
               The expression ‘collectors' pieces of... historical’ and ‘ethnographic... interest’ contained in Heading No 99.05 of the Common Customs Tariff is to be interpreted as follows:
               
                        (1)
                     
                     
                        An originally mass-produced article, less than 100 years old, is to be regarded as a collectors' piece if:
                        
                                 (a)
                              
                              
                                 it is no longer mass-produced and is no longer available in unlimited supplies, but has a certain rarity value;
                              
                           
                                 (b)
                              
                              
                                 viewed objectively, it is no longer used for its original purpose;
                              
                           
                                 (c)
                              
                              
                                 it is suitable for inclusion in a collection assembled according to scientific principles.
                              
                           The subjective intention of the importer, the usability of the article and its special rarity are not relevant.
                     
                  
                        (2)
                     
                     
                        A collectors' piece is of historical or ethnographic interest if either it marks an epoch or event in the course of general historical development or is likely to provide knowledge about the most varied manifestations of human activity. Evidence of the development of technology can thus be of historical or ethnographic interest.
                     
                  
         ANNEX
      Heading of the Common Customs Tariff
      Zoologische, botanische, mineralogische oder anatomische Sammlungsstücke und Sammlungen; Sammlungsstücke von geschichtlichem, archäologischem, paläontologischem, völkerkundlichem oder münzkundlichem Wert
      Collections et specimens pour collections de zoologie et de botanique, de minéralogie et d'anatomie; objets pour collections présentant un intérêt historique, archéologique, paléontologique, ethnographique et numismatique
      Collezioni ed esemplari per collezioni di zoologia, botanica, mineralogia, anatomia; oggetti da collezione aventi interesse storico, archeologico, paleontologico, etnografico et numismatico
      Zoologische, botanische, mineralogische en anatomische verzamelingen en voorwerpen voor die verzamelingen; voorwerpen voor verzamelingen van belang uit historisch, archeologisch, paleontologisch, etnografisch of numismatiek oogpunt
      Zoologiske, botaniske, mineralogiske, anatomiske, historiske, arkæologiske, palæontologiske, etnografiske og numismatiske samlinger og samloerobjekter
      Collections and collectors' pieces of zoological, botanical, mineralogicai, anatomical, historical, archaeological, palaeontological, ethnographic or numismatic interest
      Συλλογαί ή αντικείμενα συλλογών ζωολογίας, βοτανικής, ορυκτολογίας και ανατομίας. Είδη συλλογών παρουσιάζοντα ενδιαφέρον ιστορικόν, αρχαιολογικών, παλαιοντολογικών, εθνογραφικών και νομισματικόν
      (
            *1
         )	Translated from the German.
      (
            1
         )	Official Journal 1983, L 105, p. 1.
      (
            2
         )	The various language versions arc annexed to this Opinion.
      (
            3
         )	According to established case-law of the Court, see for example the judgment of 11 July 1980 in Case 798/79, Hauptzollamt Kõh-Rheimm v Chem-Tec [1980] ECR 2639, p. 2646.
      (
            4
         )	Judgment of 15 May 1985 and Opinion of 31 March 1985 in Case 155/84, Reinhard Onncuch v Hauptzollamt Berlin-Packhof(1985) ECR 1449.
      (
            5
         )	Das neue Fischer-Lexikon, Frankfurt 1981, Vol. 3, p. 2176; see the entry “Histoire” in Encyclopaedia Universalis, Paris 1968, Vol. 7, p. 423, el seq.
      (
            6
         )	Ibid. p. 6310.
      (
            7
         )	United Nations Treaty Series, Vol. 131, p. 25 et seg.
      (
            8
         )	Regulation No 1798/75, Official Journal 1975, L 184, p. 1.