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Cite as: [1998] EUECJ C-259/97

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JUDGMENT OF THE COURT (Fourth Chamber)

3 December 1998 (1)

(Common Customs Tariff - Collections and collectors' pieces of historical or ethnographic interest - Old cars)

In Case C-259/97,

REFERENCE to the Court under Article 177 of the EC Treaty by the Finanzgericht Düsseldorf (Germany) for a preliminary ruling in the proceedings pending before that court between

Uwe Clees

and

Hauptzollamt Wuppertal

on the interpretation of heading 9705 of the combined nomenclature contained in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1),

THE COURT (Fourth Chamber),

composed of: P.J.G. Kapteyn, President of the Chamber, H. Ragnemalm and K.M. Ioannou (Rapporteur), Judges,

Advocate General: P. Léger,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

- Mr Clees, by Stefan Hertwig, Rechtsanwalt, Cologne, and

- the Commission of the European Communities, by Fernando Castillo de la Torre, of its Legal Service, and Karin Schreyer, a German civil servant in the same service, on secondment to the Commission under an exchange scheme with national civil servants, both acting as Agents,

having regard to the Report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 11 June 1998,

gives the following

Judgment

By order of 2 July 1997, received at the Court on 18 July 1997, the Finanzgericht (Finance Court) Düsseldorf referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of heading 9705 of the combined nomenclature contained in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1) (hereinafter 'the CN').

That question was raised in proceedings between Mr Clees and the Hauptzollamt (Principal Customs Office) Wuppertal concerning the tariff classification of a second-hand motor vehicle.

It is apparent from the order for reference that on 29 April 1991 Mr Clees applied to the competent customs office for clearance for free circulation of a second-hand Mercedes-Benz 300 SL motor car manufactured in 1956, as a collectors' piece of historical interest falling under heading 9705 of the CN. That heading, which forms part of Chapter 97 headed 'Works of art, collectors' pieces and antiques', is worded as follows:

'Collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archaeological, palaeontological, ethnographic or numismatic interest'.

After inspecting the car, the customs office made the following determination: 'Chassis number found to correspond. The motor vehicle has a special design
feature in the form of gull-wing doors. Alongside the rarity value of the vehicle, it is of historical interest on account of its design (manufactured in 1956). 9705 0000 0003'. It therefore granted Mr Clees's application by notice of assessment dated 29 April 1991.

However, on 16 July 1992 the customs office sent Mr Clees an amended notice of assessment claiming import duties, on the ground that the vehicle had wrongly been classified under heading 9705 of the CN and had to be treated as a second-hand car falling under heading 8703, in accordance with the judgment of the Court in Case 200/84 Daiber v Hauptzollamt Reutlingen [1985] ECR 3363.

Since the objection lodged by Mr Clees against the customs office's amended notice of assessment was rejected on 1 February 1993, he brought an action before the Finanzgericht Düsseldorf.

That court found that the vehicle in question did not satisfy the criterion of historical interest, as interpreted in Daiber. However, it took the view that doubt had been cast on that interpretation following the adoption by the Commission, in accordance with Article 9(1) of Regulation No 2658/87, of the explanatory notes relating to heading 9705 of the CN (OJ 1996 C 127, p. 3).

Since the Finanzgericht Düsseldorf was uncertain whether the conditions set out in the Commission's explanatory notes corresponded to the principles established by the Court in Daiber, it stayed proceedings and referred the following question to the Court for a preliminary ruling:

'Is heading 9705 of the combined nomenclature, contained in Annex I to Regulation (EEC) No 2658/87, as amended by Regulation (EEC) No 2472/90, to be interpreted as meaning that as a rule motor vehicles as collectors' pieces of historical interest are required merely to be:

- in their original state, without substantial changes to the chassis, steering or braking system, engine, etc.;

- at least 30 years old; and

- of a model or type which is no longer in production?'

It is to be recalled that, in Daiber, the Finanzgericht Baden-Württtemberg had referred for a preliminary ruling two questions on the interpretation of Heading No 99.05 of the Common Customs Tariff in its form before the introduction of the CN, which was worded almost identically to the current heading 9705. The Court replied:

'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 or ethnographic interest for the purposes of Heading No 99.05 of the Common Customs Tariff.'

After establishing that Daiber had been interpreted in various ways by the national customs authorities, the Commission adopted the abovementioned explanatory notes. Paragraph 1 of those notes states:

'This heading includes motor vehicles as collectors' pieces of historical interest if they meet the criteria set out in the judgment of the Court of Justice of the European Communities in Case 200/84, and therefore:

- possess a certain scarcity value,

- are not normally used for their original purpose,

- are the subject of special transactions outside the normal trade in similar utility articles,

- are of high value, and

- illustrate a significant step in the evolution of human achievements or a period of that evolution.

In view of the fact that a motor vehicle is basically a utility article with a relatively short life, and subject to constant technical development, then the foregoing preconditions underlying the above [judgment], in so far as they are not obviously contradicted by the facts, can be taken to apply in respect of:

- vehicles in their original state, without substantial changes to the chassis, steering or braking system, engine, etc., at least 30 years old and of a model or type which is no longer in production,

- all vehicles manufactured before 1950, even if not in running order.'

The national court states that the criteria laid down are not necessarily met by every old vehicle, as the explanatory notes would suggest; it is not possible, adopting the principles set out by the Court, for every vehicle which is of high
value, at least 30 years old, no longer in production and in its original state to evidence a significant step in the evolution of human achievements.

It should be observed as a preliminary point that the interpretation given by a judgment of the Court to a provision concerning tariff classification cannot be altered by the Commission's adoption of explanatory notes. While such notes constitute an important means of ensuring the uniform interpretation of the CN by the customs authorities of the Member States, they do not have legally binding force (Case C-35/93 Develop Dr Eisbein v Hauptzollamt Stuttgart-West [1994] ECR I-2655, paragraph 21). The issue is whether the notes in question correspond to the principles established by the Court's case-law concerning the interpretation of the relevant tariff provision.

Next, the Court has held that, in order for an article to be classified under the tariff heading at issue, it is not sufficient that it satisfies only the criteria for 'collectors' pieces', that is to say that it merely possesses the requisite characteristics for inclusion in a collection. It must also be of 'historical or ethnographic interest'. The Court has thus held that those two conditions are cumulative (see Daiber, paragraph 22).

With regard to the first condition, articles which meet the four criteria listed in the first point of the operative part of the judgment in Daiber possess the requisite characteristics for inclusion in a collection. The criteria set out in the first four indents of the first subparagraph of paragraph 1 of the Commission's explanatory notes, relating to that first condition, correspond to those laid down by the Court in Daiber.

As for the second condition, namely that the article in question must also be of historical or ethnographic interest, the Court observed in Daiber that the term 'history' covered human development and achievement in all fields (paragraph 23), including equally that of car design. Thus, motor vehicles, which relate to human achievements in that field of technology, may be of historical or ethnographic interest when they evidence a significant step in the evolution of human achievements or illustrate a period of that evolution (Daiber, second point of the operative part).

The Commission has explained to the Court that the three criteria set out in the first indent of the second subparagraph of paragraph 1 of its explanatory notes, and referred to in the national court's question, namely that the vehicle at issue must be in its original state, more than 30 years old and of a model or type which is no longer being manufactured, relate solely to the second condition, concerning historical or ethnographic interest, and do not in any way affect the application of the four criteria laid down by the Court in the first point of the operative part of the judgment in Daiber, regarding the first condition.

The Commission states, moreover, that compliance with those three criteria, which were drawn up with the cooperation and agreement of the representatives of the customs authorities of the Member States, leads merely to a presumption that the requirements laid down by the Court in Daiber are satisfied.

In that regard, it should be noted that the premiss upon which the Commission relied, namely that a motor vehicle is basically a utility article with a relatively short life, and subject to constant technical development, is correct and consistent with the guidance provided by the Court in Daiber. Inasmuch as the term 'history' covers human achievement in all fields, account should be taken of the specific features of each field. It is therefore appropriate to take into consideration that motor vehicles are articles built for a purpose which is, in principle, utitilitarian and not monumental, and that they are subject to the technical capacities of their age.

On the basis of that premiss, the Commission laid down as a first criterion that the vehicle in question must be in its original state, without substantial changes to its most important components. That criterion is justified. A vehicle which is not in its original state is not liable to attest to the evolution of the technology of its age.

Similarly, the criterion that the relevant vehicle must no longer be in production is justified. A vehicle in continuing production is still of current interest to consumers by reason of its utilitarian function and therefore cannot be of historical interest by relating to a bygone age.

The criterion setting a minimum age for the vehicle must be considered in conjunction with the criterion requiring that it no longer be produced, in that as a rule a vehicle at least 30 years old should be of a model no longer in production and cannot be of interest by reason of its utilitarian function. However, that criterion must be considered to be relative, inasmuch as it is possible for a more recent vehicle to possess features rendering it of historical interest.

In conclusion, therefore, the three criteria at issue, as constituents of the presumption established by the Commission, do not depart from the guidance provided by the Court in Daiber. Vehicles which meet those criteria are, as a rule, such as to attest to the distinctive technical and aesthetic features of the age in which they were manufactured and thus such as to illustrate, in particular, a period of the evolution of human achievements in the field of car design.

That conclusion is, moreover, borne out by the purpose, as acknowledged by the Court, of the exemption from duty under heading 9705 of the CN, namely facilitating international trade in objects of cultural and educational value (Daiber, paragraph 15).

However, the fact that a vehicle meets the three criteria set out by the Commission is not sufficient for it to be classified under heading 9705 of the CN. First, compliance with those three criteria merely establishes a presumption of historical
or ethnographic interest, which is rebutted where the competent authority establishes that the vehicle's specific character is not in any way linked to a period in the past in the sense that the vehicle is not liable to evidence a significant step in the evolution of human achievements or illustrate a period of that evolution. Secondly, it is also necessary to meet the four criteria, referred to in the first point of the operative part of the judgment in Daiber, concerning the characteristics which a vehicle must possess in order to be included in a collection.

Accordingly, the reply to be given to the national court is that heading 9705 of the CN must be interpreted as meaning that motor vehicles which are:

- in their original state, without substantial changes to the chassis, steering or braking system, engine, etc.;

- at least 30 years old; and

- of a model or type which is no longer in production

are presumed to be of historical or ethnographic interest.

However, motor vehicles which satisfy those conditions are not of historical or ethnographic interest where the competent authority establishes that they are not liable to evidence a significant step in the evolution of human achievements or illustrate a period of that evolution.

In addition, the criteria laid down by the case-law of the Court concerning the characteristics required in order for a vehicle to be included in a collection must be met.

Costs

On those grounds,

THE COURT (Fourth Chamber),

in answer to the question referred to it by the Finanzgericht Düsseldorf by order of 2 July 1997, hereby rules:

Heading 9705 of the combined nomenclature contained in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff must be interpreted as meaning that motor vehicles which are

- in their original state, without substantial changes to the chassis, steering or braking system, engine, etc.;

- at least 30 years old; and

- of a model or type which is no longer in production

are presumed to be of historical or ethnographic interest.

However, motor vehicles which satisfy those conditions are not of historical or ethnographic interest where the competent authority establishes that they are not liable to evidence a significant step in the evolution of human achievements or illustrate a period of that evolution.

In addition, the criteria laid down by the case-law of the Court concerning the characteristics required in order for a vehicle to be included in a collection must be met.

KapteynRagnemalm Ioannou

Delivered in open court in Luxembourg on 3 December 1998.

R. Grass P.J.G. Kapteyn

Registrar President of the Fourth Chamber

1: Language of the case: German.