Wednesday, May 1, 2013

German High Court Rules No Export Permit Required in Case Where No Evidence Offered That Ancient Coins & Medals Were Regulated Archaeological Goods

The Bundesfinanzhof, or Federal Fiscal Court, ruled on March 6, 2013 that an exporter of ancient coins and medals did not have to obtain a permit under European Commission rules that regulate the export of cultural goods. The Munich based court is the highest appellate tribunal in Germany with jurisdiction over tax and customs matters.

Ancient coins classified as archaeological objects require export permits from Germany, but the court in this case found no evidence offered by the parties to justify that the objects in question were archaeological goods.

In October 2008, the plaintiff presented export paperwork to the Principal Customs Office describing approximately 32 coins and medals. (Where they were from and exactly what types of items they were are not described by the court.) The plaintiff declared the coins and medals to be 1500 to 2400 years old and valued between 50 EUR and 400 EUR. The Principal Customs Office took the position that European Commission Council Regulation EC No 3911/92--presently No 116/2009--required the coins and medals to have an export permit because they were protected cultural goods. The customs office refused to make an exception under a section of the EC regulations allowing an exception in cases where goods "are of limited archaeological or scientific interest, and provided that they are not the direct product of excavations, finds or archaeological sites within a Member State, and that their presence on the market is lawful." The plaintiff disagreed with the customs office decision and took legal action.

[Sidebar: European Union member states have adopted export rules to stop the trafficking of cultural goods. EC No 116/2009 declares:
The export of cultural goods outside the customs territory of the [European] Community shall be subject to the presentation of an export licence... The export licence shall be issued at the request of the person concerned ... by a competent authority. However ... the Member State ... is authorised not to require export licences for the cultural goods ... where they are of limited archaeological or scientific interest, and provided that they are not the direct product of excavations, finds or archaeological sites within a Member State, and that their presence on the market is lawful. 
The export licence may be refused, for the purposes of this Regulation, where the cultural goods in question are covered by legislation protecting national treasures of artistic, historical or archaeological value in the Member State concerned. 
[D]irect export from the customs territory of the Community of national treasures having artistic, historic or archaeological value which are not cultural goods within the meaning of this Regulation is subject to the national law of the Member State of export.
Items defined as cultural goods are listed in Annex I and include archaeological objects over 100 years old and collections of numismatic interest.]

The lower fiscal court sided with customs, but the Federal Fiscal Court ruled for the plaintiff. The Bundesfinanzhof's explained these Guidelines at the outset of its opinion:
Archaeological objects as defined in EC legislation on the export of cultural goods (Regulation No. 116/2009) are only those that have a value for archaeology, that is man-made or worked on objects, able to convey the findings of past cultures, especially about their customs, 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 archaeology have no meaning, and are not "archaeological objects" or finds. Ancient coins can be archaeological objects.
But the Federal Fiscal Court found no determinations made by the Principal Customs Office or the lower court that the coins and medals in question actually constituted archaeological objects in this case.  The court wrote:
The archaeological interest in an object is to be evaluated in this context by the Principal Customs Office or the judge according to the circumstances of the individual case, taking as key criteria, in particular, how the object in question is valued in the market and whether the same or similar objects to a greater extent involving the trade are ones in which archaeological institutions and collections are not involved, but where collectors are involved who are not interested in such coins as an "archaeological" interest but out of a passion for collecting, because of the aesthetic value of the objects or other interests.
The Bundesfinanzhof pointed out that that the lower court "made no findings as to whether the disputed coins and medals for some special reasons would have a meaning and some value for archaeology," adding the the customs office "contributed nothing." In fact, the Federal Fiscal Court decision observed that the information provided by customs from the Württemberg State Museum could not constitute "a proper basis for a finding, especially since it is inconsistent, when on the one hand the issue of an export permit is said to be required, and on the other hand the State Museum leaves it open whether this involves 'archaeological goods' at all."

In contrast, the plaintiff's position that the coins and medals were "mass produced" and "often found in general trade" went uncontradicted, the high court noted. As a result, the Federal Fiscal Court entered a final decision without remanding the case to the lower court. The high court was convinced that another hearing would not produce "different findings."

The Federal Finance Court opinion is narrow in scope. The court reaffirmed that ancient coins can be archaeological objects. In the present case, the court sought evidence that the 32 ancient coins and medals qualified as archaeological objects subject to a cultural goods export permit. But the court found that the customs house and the State Museum either offered either no evidence or inconclusive evidence that the items in question were archaeological. The ruling continues to uphold the proposition that ancient coins qualifying as archaeological objects require export permits.

The Federal Finance Court's web site explains that the "Federal Fiscal Court only adjudicates on the correct application of law in concrete individual cases. Although its decisions can only bind the respective parties, they are still authoritative for the taxation of other tax paying citizens where the same facts of case apply." The full text of the decision may be found at docket VII R 33 34/11. 

Acknowledgment: Dr. Hubert Lanz, president of the Federation of European Numismatic Trade Associations, for providing an English version of the court decision.  While this post seeks to accurately convey the German court's decision, the English translations are the author's own and are subject to error or interpretation.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com