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B.
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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. (
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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. (
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1.
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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. (
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) 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.
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2.
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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.’ (
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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... ’. (
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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.
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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.
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4.
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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. (
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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 (
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) 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.
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