Wednesday, May 01, 2013

German Ministry Determines that Ancient Coins are not Archaeological Objects

BUNDESFINANZHOF judgment of 11.12.2012

VII R 33, 34/11; VII R 33/11; VII R 34/11
Protection of cultural property may also include individual coins - "archaeological objects" within the meaning of Regulation (EC) 116/2009
Archaeological objects as defined in Regulation (EC) on the export of cultural goods (Regulation No. 116/2009) are only those that have a value for archeology, that is man-made or edited objects, able to convey the findings of past cultures , especially about about their customs, the then technical and artistic development, political and social structures, religion and the like. Items that illustrate lessons learned elsewhere about past cultures and therefore possibly for archeology have no meaning, no "archaeological objects" or finds.
Ancient coins can be archaeological objects.
I. The plaintiff and defendant in appellant (plaintiff) has on 31 2008 at the customs office (ZA) of the defendant, revision defendant and revision applicant (Principal Customs Office - HZA -) in October issued an export declaration about 32 coins and medals, which - as explained in the plant to export declaration - 1500-2400 Jahre are to be old and worth between 50 EUR and 400 EUR. The ZA has the acceptance of this application is rejected, because it is the sense of Article 1 of Cultural Property, Annex A No. 1 of Regulation (EEC) No 3911/92 of 9 December 1992 on the export of cultural goods (Official Journal of the European Communities No L 395/1; hereinafter: Regulation No 3911/92) THE EXPRESSION, must be submitted for an export permit.

On the charge against that decision before the Tax Court (SC) has dismissed under the same obligation with the remainder in the HZA magazine for Customs and Excise, 2012, Supplement 2, 19 veröffentlichtem judgment to the plaintiff humble again. It is the opinion of export goods if it were indeed cultural goods within the meaning of Regulation No 3911/92 or the extent since 2 March 2009 applicable Council Regulation (EC) No 116/2009 of 18 December 2008 on the export of cultural goods (Official Journal of the European Union L 39/1, hereinafter 'Regulation No 116/2009), so that the applicant can not require acceptance of the export declaration without an export permit. Article 2 para 2 subpara. 2 However, Regulation No. 116/2009 confers on Member States a discretion to make exceptions to the general export authorization. This discretion has not been exercised, the HZA.

Against this judgment addressed in the revisions of the plaintiff and the HZA, which allege breach of substantive law.

According to the applicant - together - that Regulation No 116/2009 only determine the framework within which Member States could determine cultural goods. To protect against German cultural migration (KultgSchG) would in Germany according to § 1 of the Act lists drawn up and published nationally valuable cultural property. In addition, only cultural assets would be protected by that law, are illegitimate, arrives at German customs territory. Along with the return of cultural property law (Federal Law Gazette I 2007, 757, 2547) had been created so far a closed monitoring and retrieval system.

Individual coins stood not under the protection of Regulation No 116/2009, Annex IA as their No. 13 Buchst. b show, the only collections of coins are mentioned as protected object. Even ancient coins are generally no archaeological objects, but listed in a large number of commercially prominent bulk and in numerous catalogs with price, they are certainly not a national treasure that - and not the interest in archaeological activity and research - to protect the Union could only take a competence to complete. From the HZA and held by the FG for the correct interpretation of Regulation No 116/2009 would bring the rest of the coin dealers with customers in a Third Country incompatible with the free movement of goods way to a standstill. The authorities would be overwhelmed if they had to meet to grant an export authorization or as required by the FG discretionary decision for each coin.

Furthermore, the applicant believes is Article 2 subparagraph. 2 Regulation No 116/2009 applies - unlike the HZA says - immediately and required no implementation by a national instrument. That is clear from the wording in which makes no reference to the fact that the authorization was implemented through legal proposition. Would be the implementation to the discretion of Member States, it would also be a non-compatible with Article 36 sentence 2 of the Treaty on the Functioning of the European Union discrimination of coin dealers. For the protection of archaeological objects and limited scientific value, it is also devoid of a union legal competence. The principle of proportionality areas to exclude such objects from protection, for they could not by definition belong to the cultural heritage of a Member State.

The HZA submits that Article 2 para 2 subpara. 2 Regulation No 116/2009 contains only a general authority for the Member States to create an exemption through legislation. This must be carried out in Germany by law. Such a law giving it just as a related administrative action or exercise. In Germany, therefore, currently there is no option to export cultural goods without authorization. This is also not objectionable under Union law.


II The revision of the plaintiff is justified and leads to the corresponding obligation of the HZA head of claim (§ 126 Section 3 Sentence 1 No. 1 of the Tax Court Rules - FGO -). As far as the judgment of the FG has the HZA committed to the exercise of discretion and the HZA hand turns with his revision, leads aforementioned, on the obligation to re-discretionary out walking and this displacing statement to execute the relevant applicant's request and the revision of the HZA.

The judgment of the FG violated federal law (§ 118 para 1 FGO).

Under Article 2, Section 1 of the already applied this Regulation No. 116/2009, which corresponds to the relevant provisions with the provisions of Regulation No 3911/92 shall cultural goods from the customs territory of the Community (now Union) will be executed only if an export license is present. As cultural goods, the goods listed in Annex I, therefore, under Article 1 of the Regulation in more than 100 years old archaeological objects from excavations and finds on land or under water, archaeological sites and archaeological collections. Is not submitted by the declarant such export permit for the objects provided by him, even though they are cultural assets within the meaning of Regulation No 116/2009, it may not require under Article 63, 62, paragraph 2 of the Code, that the HZA takes its declaration.

The view of the FG that Article 2, Section 1 of Regulation No 116/2009 grab in case of dispute, however, violated federal law. Because the FG is assumed to be the incorrect term "archaeological object" or "archaeological find".

1 However, this Panel can not - to share opinion of an export permit BOTH COMMUNITY only for items that are included in the list nationally valuable cultural property in accordance with § 1 KultgSchG, only those - at the hearing not even alleged by the plaintiff So objects are treasures within the meaning of the aforementioned Regulation and Union for such items, the Union could ever take the competency claim to require a special permit their export. Such a narrow interpretation of the scope of the regulation would be inconsistent with the purpose to establish a uniform procedure rules for protection within the EU export from one of the Member States as worthy of protection prestigious items. It is obvious that the office usually can not judge whether you asked for clearance subject of one of the Member States has been placed under protection as a cultural asset. To check this one for it by the Member State in question to be determined competent authority, in cooperation with the appropriate authorities of the other Member States (see Article 6 of Regulation No 116/2009) must therefore, as required by the Regulation, be left and the result of examination to be expressed in the export permit. Has been made that an article by a Member State under its laws under protection, so is not a requirement for the requirement of an export authorization for exports from the customs territory of the Union, but after the second subparagraph of Article 2, Section 2. 3 Regulation No 116/2009 scale for issuing the export authorization.

Whether objects "archaeological objects" within the meaning of the abovementioned provisions can, however, unlike the FG apparently thinks, not solely on the basis of their age and (from FG just assumed as probable respected or because of questionable evidence prima facie) origin judge from finds or digs. An archaeological object is rather only one which has a value for archeology, so a man-created or edited the subject who is able to convey knowledge about past cultures, especially about about their customs, the then technical and artistic development, political and social structures, religion and the like. Items that illustrate lessons learned elsewhere about past cultures and therefore possibly for archeology have no meaning, no "archaeological objects" or finds the meaning of Annex I of Regulation No 116/2009. This corresponds to the Harmonized System Explanatory Notes relating to heading 9705 to which the aforesaid Annex refers, and also to the park "archaeological interest", which they attach well adapted to the study of earlier generations articles, in which exemplary enumeration of them by the way coins and not to mention medals. Which it corresponds also to objects that do not have (knowledge) value for archeology, can not be made by a Member State pursuant to a protected archaeological interest. However, the Regulation No. 116/2009 is as stated serve only the enforcement of such protection measures of a Member State, namely to ensure that these observed at the external borders of the Union and is incompatible with them export as a national cultural heritage vulnerable objects is prevented.

However, contrary to the view of the plaintiff neither the explicit designation of "collections of numismatic value ..." in Annex IA No. 13 Buchst. b Regulation No. 116/2009, the reverse conclusion be drawn, single coins not stood under the protection Regulation nor the Senate can ensure from the outset that individual coins or medals may get an archaeological value under certain circumstances, they can appear as an "archaeological object" within the meaning of Regulation No 116/2009.

Rightly, however, the applicant accordingly submitted that the coins that come from the so-called Ancient, usually have no such archaeological value and therefore there are no archaeological objects, especially if they exist in large numbers and they - which, as the Badische Landesmuseum has been stressed in the HZA submitted at the hearing opinion - not (any longer) can be assigned to a particular locality.

The archaeological interest in a subject is to be evaluated in this context by the HZA and the trial judge on the circumstances of each case, taking as key assessment criteria are, in particular, how the object in question is rated in the market and whether the same or similar items to a greater extent involving trade are, on the non-archaeologists and archaeological institutions and collections, but collectors attend who do not acquire such coins from an "archaeological" interest, but out of a passion for collecting, because of the aesthetic value of the objects or other interests.

2 The FG has - made no findings as to whether the disputed coins and medals for some special reasons would have a meaning and some value for archeology - of its incorrect legal starting point. Also, the HZA has contributed nothing. To it by the Württemberg State Museum under the 28 April 2009 has provided information would not be a proper basis for a finding, especially since it is inconsistent, when on the one hand, mutatis mutandis, to grant an export permit is declared to be necessary, on the other hand, leaves open the state museum, whether it is at all to "archaeological Good" is.

However, the applicant has stated without being contradicted, if it were "mass produced" as they are often located in general trade. Of which this Panel may proceed in his decision, since there is nothing visible that the FG, but the principle is responsible for the actual reconnaissance and evaluation of such conditions, at a remand of the case pursuant to § 126 Section 3 Sentence 1 No. 2 in FGO a second set of proceedings may come to different findings.

Since the FG has viewed the objects made for export by the plaintiff, after all, wrongly as archaeological objects, his judgment must be set aside. The matter is ripe for decision. The plaintiff is entitled to adopt its export declaration, without having it must submit an export permit.


This decision determines that the ancient coin trade is no longer obligated to apply for export permits in order to export ancient coins from Germany.