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