The provisions of Arts. 30 to 34 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants, the protection of national treasures possessing artistic, historic or archaeological value, or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.2
Article 30 of the above quoted EC treaty (now Article 28 post Maastricht with "without prejudice to the following provisions" removed) prohibits between member states quantitative restrictions or equivalent effect measures on imports subject to articles 31 to 37. Article 34 (currently article 29) relevant to the instant case deals with quantitative restrictions on exports prohibited between member states. Article 34 is reproduced below.
2. Member States shall, by the end of the first stage at the latest, abolish all quantitative restrictions on exports and any measures having equivalent effect which are in existence when this Treaty enters into force.
Article 34 read with article 36 makes it clear that Germany is not precluded to impose export restrictions on the grounds of "protection of national treasures possessing artistic, historic or archaeological value". Now it should be ensured that the goods sought to be exported out of Germany to U.K. within the community falls within the ambit of "national treasures possessing artistic, historic or archaeological value". More importantly it must be examined whether the item sought to be exported is one of the items listed in the annex of the EEC Regulation No.3911/92 which it terms as cultural goods. Article 1 of the said regulation states "Without prejudice to Member States' powers under Article 36 of the Treaty, the term 'cultural goods shall refer, for the purposes of this Regulation, to the items listed in the Annex"3 Out of 14 items in the annexure, item no 3 seems to cover the item sought to be exported from Germany in the instant case.. The item No 3 is described as "Pictures and paintings executed entirely by hand, on any medium and in any material (1)" 4 This is subject to a proviso "The cultural objects in categories A.1 to A.14 are covered by this Regulation only if their value corresponds to, or exceeds, the financial thresholds under B." 5 appearing at the end of item A of the regulation. For item 3, the financial threshold is 50,000 ecus as mentioned in item B of the regulation. The item 3 has since been subdivided and given different threshold values by an amendment through EC regulation no 2469/96 6 The amended version as given in article 1 of the regulation is given below.
The Annex to Regulation (EEC) No 3911/92 shall be amended as follows:
1. in heading A:
(a) point 3 shall be replaced by:
'3. Pictures and paintings, other than those included in category 3A or 4, executed entirely by hand in any medium and on any material (1);
(b) the following point shall be inserted:
'3A. Water-colours, gouaches and pastels executed entirel