C-259/97

CLEES v HAUPTZOLLAMT WUPPERTAL

OPINION OF ADVOCATE GENERAL LÉGER delivered on 11 June 1998 *

1. The question referred to the Court for a 3. Chapter 97 of the CN is entitled "Works preliminary ruling in this case concerns the of art, collectors' pieces and antiques'. Heading criteria to be met by a motor vehicle in order 9705 of that chapter is worded as follows: for it to come under heading 9705 of the Combined Nomenclature (hereinafter 'the CN'), 1which relates in particular to collec­ tions and collectors' pieces of historical or ethnographic interest.

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

The facts, the main proceedings and the rel­ evant Community provisions

4. The customs office inspected the vehicle and made the following determination: 'Chas­ sis 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'.

8. Mr Clees brought proceedings contesting ' — Collectors' pieces within the meaning of that rejection before the Finanzgericht Heading No 99.05 of the Common Cus­ (Finance Court) Düsseldorf. toms 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 9. That court took the view, first of all, that trade in similar utility articles and are of the conditions concerning historical interest high value. laid down by the Court of Justice in Daiber, cited above, were not met, as neither the gull- wing doors nor the vehicle design in any way evidenced a significant step in the evolution of human achievements or illustrated a period 6 of that evolution. — Collectors' pieces which evidence a sig­ nificant step in the evolution of human achievements or illustrate a period of that

10. The court added that doubt had, in any 2 — Case 200/84 Daiber v Hauptzollamt Reutlingen [1985] ECR 3363. event, been cast on that interpretation of 3 — As well as in the judgment delivered on the same day in Case heading 9705 following the adoption by the 252/84 Collector Guns v Hauptzollamt Koblenz [1985] ECR 3387, on the interpretation of the same tariff heading. 4 — The English-language version of Heading 99.05 of the CCT, set out in the Annex to Regulation (EEC) No 950/68 of the Council of 28 June 1968 on the Common Customs Tariff (OJ, English Special Edition 1968 (I), p. 275), is in fact in 5 — Paragraph 25, emphasis added. identical terms to heading 9705 of the CN . 6 — Fourth paragraph of Section II of the order for reference.

— arc not normally used for their original — vehicles in their original state, without purpose, 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 the subject of special transactions out­ side the normal trade in similar utility articles,

— all vehicles manufactured before 1950, even — arc of high value and if not in running order.' 8

7 — Ibidem, fifth paragraph of Section II. OJ 1996 C 127, p. 3. 8 — Emphasis added.

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'Is heading 9705 of the combined nomencla­ ture, contained in Annex I to Regulation

9 — Seventh paragraph of Section II of the order for reference. 10 — Ibidem, 11th paragraph of Section II. 16. It is settled case-law that 'in the interests 11 — Ibidem, 13th paragraph of Section II. of legal certainty and ease of verification, the

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decisive criterion for the classification of goods 19. According to Daiber, the aim of Chapter for customs purposes is in general to be 99 of the CCT is to facilitate international sought in their objective characteristics and trade in objects of cultural and educational 1 properties as defined in the wording of the value, 4which must equally apply to Chapter relevant heading of the CN ... There are also 97 of the CN, given the similarity in the explanatory notes drawn up, as regards the wording of the two tariff headings. CN , by the European Commission and, as regards the Harmonised Commodity Descrip­ tion and Coding System, by the Customs Cooperation Council, which may be an impor­ tant aid to the interpretation of the scope of the various tariff headings but which do not have legally binding force ...'. 12 20. However, the Finanzgericht Düsseldorf considers that that judgment cannot be trans­ posed to this case. In its view, there is some doubt as to whether the explanatory notes are consistent with the Court's interpretation of the CCT.

13 17. The Court's interpretation in Daiber, consistent with that case-law, of Heading No 99.05 of the CCT, which was in force at the time of the facts at issue in that case, seems 21. It is therefore asking the Court to clarify to be capable of being applied to the present its interpretation of the CCT, so as to check case because of the respective contents of the that the objective criteria adopted by the tariff headings and the nature and character­ Commission in its explanatory notes are in istics of the article in question. line with that interpretation and that those notes do not distort the meaning and scope of the tariff heading at issue.

23. According to the Commission, the three 26. It should be pointed out first of all that criteria which it has laid down are consistent the criteria in the explanatory notes were laid with the Court's case-law, as they help to down by the Commission to promote the explain the clearly abstract and subjective uniform application of heading 9705 by the condition as to the historical interest that a customs authorities in respect of a particular motor vehicle may have. They do not replace category of goods, in this case motor vehicles. all the conditions in the first subparagraph of paragraph 1 of the explanatory notes arising from Daiber. Also, the second subparagraph establishes a general presumption, which can be rebutted by demonstrating that the his­ 16 torical interest is not clear. 27. Although not legally binding, those notes must not conflict with the provisions of the CCT — or the CN — or alter the meaning 18 of such provisions. If they do, the content of the tariff, as interpreted by the Court where relevant, must prevail over the Commission's construction of it.

24. The Commission suggests that the clas­ sification of motor vehicles under tariff heading 9705 be carried out on the basis of the conditions laid down in Daiber, with the existence of historical and ethnographic interest also being checked using the criteria 28. Consistent explanatory notes, on the other in the explanatory notes, hand, may serve to clarify the content of a tariff heading, including in cases where the facts at issue occurred before the notes were adopted.

31. The examples presented as conflicting by the national court in the order for reference 20 contradict that case-law only ostensibly. Although the Court's interpretation in Stati- 34. Those conditions are in fact intended only 21 ner of a subheading of the CCT disregarded to enable the possible historical or ethno­ an explanatory note subsequent to the facts graphic interest of a vehicle to be identified. of the case, the grounds for so doing were They are not intended to replace the other that, in that instance, the note related to a conditions laid down in Daiber — relative nomenclature other than the one in force at rareness, article not used for its original pur­ the time of the facts at issue in the main pro­ pose, special transactions outside the normal 22 ceedings. In Merkur, having stated that the trade in similar utility articles, and high value explanatory notes to the CCT were appli­ — which enable collections or collectors' cable subsequent to the matters at issue in the pieces to be distinguished from other articles case, the Court none the less argued that their or groups of articles. content and similarity with other explanatory notes confirmed the Court's interpretation of a tariff heading.

19 — Sec, in particular, Case C-395/93 Neckermann Versand v Hauptzollamt Frankfurt am Main-Ost [1994] ECR I-4027, paragraphe, and Case C-164/95 Eru Portuguesas Alfândega 35. Those other conditions are necessary, de Lisboa [1997] ECR I-3441, paragraph 20. 20 —• Eighth paragraph of Section II of the order for reference. because they take account of the characteris­ 21 — Case C-Ì93/93 Stannerv Haupuollamt Bochum [1994] ECR tics which a motor vehicle has to possess in I-4011, paragraph 19. order to be included in a collection, irrespec­ 22 — Case 106/75 Merkur-Aussenhandel v Hauplzollamt Hamburg-Jonas [1976] ECR 531, paragraph 4. tive of its historical interest. An old vehicle

37. It is also necessary to examine whether the conditions laid down by the Commission are capable of distinguishing the historical or ethnographic interest of a motor vehicle. 42. It is natural for all historical character to be denied to a vehicle the majority of whose features, or whose most important compo­ nents, have been replaced to the point where it is no longer possible to recognise the original vehicle in that article. Through being repaired or changed, such an article is likely to have lost part of its identity. In those circum­ 38. According to the Court's definition, in stances, it could in no way be considered to order for a motor vehicle to be regarded as attest to a period in history. being of historical or ethnographic interest it must have one of the following two qualities: either it must evidence a significant step in the evolution of human achievements, meaning that it occupies an important place in the his­ tory of those achievements because it was innovative in the past; or its existence must 43. The objective of duty-free importation illustrate a period of that evolution, meaning under Chapter 97 of the CN would be dis­ that it simply attests to a past era. regarded if collectors' pieces which had been

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totally altered by substantial changes were to 47. Even then the vehicle, which must fulfil enjoy the same customs exemptions. the criteria pertaining to collectors' pieces, must also meet the aforementioned conditions demonstrating that it attests to the past.

44. The Commission's notes also state that 48. Those requirements appear to be well the vehicle must be of a model or type which founded. is no longer in production and must be at least 30 years old.

50. Furthermore, tariff classification under heading 9705 presupposes that the article in question is a collectors' piece, thereby 46. In its explanatory notes, the Commission requiring that the abovementioned conditions rightly states that a motor vehicle is an article 23 in Daiber be met, which include the condi­ subject to constant technical development. tion that there must be a special market out­ The rapid succession of technical innovations side the normal trade in similar utility articles. in the automobile industry consequently Continued production of the same model or makes it an area which contains numerous same type of vehicle would prevent the for­ examples illustrating the evolution of human mation of such a market as the vehicles pro­ achievements. duced would feed new and second-hand mar­ kets similar to other motor vehicle markets, depriving the vehicle in question of the rarity 23 — Second subparagraph of paragraph 1. inherent in collectors' pieces.

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51. The respective aims of the CN and heading a vehicle which is too recent cannot logically 9705 also justify the requirement that the attest to the past. vehicle no longer be in production.

55. The opportunity given to customs author­ 52. In his Opinion in Daiber and Collector ities and national courts to refer to a precise Guns, cited above, Advocate General Lenz age facilitates the practical exercise of admin­ pointed out that the function of the CCT was istrative action and that criterion must there­ to protect production within the Community. fore be approved, at least in principle. Addressing the question of the type of pro­ duction which was to be protected against the 24 importation of articles such as those at issue, he stated that there was no competition between such second-hand articles and goods 25 then being produced in the Community.

counts is that the vehicle in question is rep­ the Court has already been closely guided in resentative of the past because it constitutes Daiber, in accordance with its settled case- an innovation or a step in that evolution. law.

62. The notes appearing in the 1996 version under heading 9705 refer to articles which 59. So, a vehicle may, even if it is recent, be have belonged to famous persons, which serves of historical interest if it is the last example of to illustrate the idea that, even if the case is a period which has just ended. That interest marginal and quasi-anecdotal, a vehicle may would not be diminished just because the be classified under heading 9705 even though vehicle had not reached the required age. it does not fulfil the age criterion, so long as there are certain circumstances to warrant doing so.

60. The Commission's age criterion is not 63. Conversely, as the explanatory notes state, therefore to be considered as mandatory, but fulfilment of the three criteria may not be as a constituent of the presumption that a enough for there to be historical interest. That vehicle is of historical or ethnographic interest. is the case where the vehicle's specific char­ acter 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 evo­ lution of human achievements or illustrate a 28 period of that evolution.

Conclusion

66. In the light of those considerations, I suggest that the Court give the following answer to the question referred for a preliminary ruling by the Finanzgericht Düs­ seldorf:

Heading 9705 in 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 a motor vehicle which is:

— in its original state, without substantial changes to its main components;

— of a model or type which is no longer in production; and

— more than 30 years old