C-23/77

JUDGMENT OF THE COURT (SECOND CHAMBER) 27 OCTOBER 1977 1

Westfälischer Kunstverein v Hauptzollamt Münster

(preliminary ruling requested by the Finanzgericht Münster)

Case 23/77

1. Common Customs Tariff — Artistic printed matter — Classification —

Subheading 49.11 B — Residual nature

subheading 49.11 B is a residual process.

heading which covers all artistic 3. Artistic screen prints fall within

printed matter not listed or referred to subheading 49.11 B of the Common elsewhere. Customs Tariff, even if they are signed 2. In order to be classified under tariff by hand by the artist and if only a

heading 99.02, printed products must limited edition is produced.

In Case 23/77

Reference to the Court under Article 177 of the EEC Treaty by the IVth Senate of the Finanzgericht Münster, for a preliminary ruling in the action

I — Language of the Case: German.

JUDGMENT OF 27. 10. 1977 - CASE 23/77

THE COURT (Second Chamber)

composed of: P. Pescatore, Acting President of the Second Chamber, Lord Mackenzie Stuart and A. Touffait, Judges,

Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

1. At the request of the Westfäli­ 4. Having unsuccessfully entered an scher Kunstverein (The Westphalian Association for the Promotion of the objection to the classification decision, the applicant lodged an application with Arts), the plaintiff in the main action, the the Finanzgericht (Finance Court) customs office, Münster, being one of the Munster with a view to the customs offices coming under the obtaining classification of the screen prints under Hauptzollamt (Principal Customs Office) Münster, the defendant in the main tariff heading 99.02. action, cleared into free circulation on 14 5. The Finanzgericht Münster con­ March 1973 150 colour screen prints sidered that the settlement of the action (colour serigraphs) imported from the depended on the interpretation of the United States and numbered and signed provisions of the Common Customs by the American artist, John Salt Tariff and, by order of 19 January 1977, 2. After the customs office, Münster, stayed the proceedings and referred the

had classified the screen prints under following question to the Court of

tariff subheading 49.1 B (Other printed Justice for a preliminary ruling:

matter, including printed pictures and

photographs') of the Common Customs 'On 14 March 1973 did a limited edition

Tariff, it levied, by means of notice of of not more than 150 artistic colour

7. Written observations were submitted provisions of the Common Customs

by the Commission of the European Tariff must be applied as they are found, Communities in accordance with Article without prejudice to the need to carry 20 of the Protocol on the Statute of the out amendments and adjustments as and

Court of Justice. when necessary.

The Council of the European II — Observations submitted Communities had drawn the con­

under Article 20 of the sequences of the particular artistic value

Protocol on the Statute of of colour screen prints in 1974 when it the Court of Justice of the adopted Regulation (EEC) No 1616/74 EEC (OJ L 174 of 25 June 1974,p. 5) by which the rate of customs duty in force Observations of the Commission at that period was reduced to nil.

dealing with 'Original engravings, prints lithographs' design to be reproduced (preparation of and the Common Customs the printing frame) and, secondly, its Tariff achieves the objectification reproduction on to the printing surface

necessary for reasons of legal certainty (printing). and practicability (in heading 99.02) by adopting as an objective criterion of The preparation of the printing frame is classification a definition established and the most important stage in the

JUDGMENT OF 27. 10. 1977 - CASE 23/77

production of a screen print. Various Since artistic colour screen prints are

processes are employed, particularly in obtained by a printing process it might, the case of artistic screen prints (for at least in principle, be accepted that

example, for the reproduction of full they fall within tariff subheading 49.11 B. colour or of very detailed drawings).

mechanically or by hand, is repeated as therefore maintains that it is necessary to many times as there are printing surfaces 'original' consider whether artistic screen prints are to be printed or colours of the articles falling within any heading in to be reproduced. Chapter 99'. An affirmative reply would

alone allow classification under Highly-developed and entirely automatic subheading 49.1 B to be ruled out. machines exist which enable several

thousand screen prints to be obtained per The Commission emphasizes that there hour. can also be no applying question of

General Rule No 4 for the interpretation Screen prints are used primarily in of the nomenclature of the Common industry, in the graphic arts and in other Customs Tariff to the artistic screen artistic printed products. The so-called ' prints and of classifying them under 'the 'artistic screen print normally forms the subject of limited editions of a few heading appropriate to the goods to

hundred The which they are most akin'. This rule in copies at the most. prints fact covers the case of a product 'not are all numbered and signed personally by the artist. falling within any heading of the Tariff. Subheading 49.11 B covers all artistic B The distinction between printed matter, that is, including screen — tariff prints. The only problem to be solved is, subheading 49.11 B and tariff therefore, whether a specific rule heading 99.02 (heading 99.02) precludes the application of the general rule (subheading 49.1 B). Tariff subheading 49.11 B is a general

covering all 'other printed subheading matter. To some extent it constitutes a It therefore remains to be decided residual subheading, intended to cover all whether artistic colour screen prints fall the (special) artistic printed matter not within the products covered by tariff

or of the material employed by him, similar to the products falling within that but not including any mechanical or heading. photomechanical process'. The Commission considers, therefore, In the opinion of the Commission two that it is the general rule, that is to say, typical criteria decisive for tariff 49.1 B, which must apply to subheading classification may be derived from the the articles in question.

wording of heading 99.02: that of

originality and that based on the precise C — Conclusion limits of any interpretation fixed by the in The Commission proposes that the wording of that tariff heading, conjunction with Note 2 to Chapter 99. following reply be given to the question raised: As regards artistic colour screen prints

Artistic signed by the artist numbered and signed by the artist screen prints

himself, the criterion of originality raises and produced in a limited edition of 150 complicated questions of a copies fall within subheading 49.11 B of extremely technical nature. The Commission the Common Customs Tariff.

considers, however, that it is unnecessary to pursue the examination of that

Customs

JUDGMENT OP 27. 10. 1977 - CASE 25/77

2 That question arose within the context of an action concerning the tariff

classification of ISO artistic screen prints, numbered and signed by the artist, imported from the United States into the Federal Republic of Germany and cleared into free circulation on 14 March 1973.

The customs authorities classified those articles under subheading 49.11 B ('Other printed matter including printed pictures and photographs: ... B.

Other') of the Common Custom Tariff.

the 49) while the other, heading 99.02, is covered by the concept of 'Works of art, (Chapter 99). collectors' antiques'

pieces, and

That distinction cannot be based on the possible artistic merit of the

aforementioned articles, something is defined essentially by reference which

to subjective and indeterminate criteria, but must be founded on the objective

criteria adopted by the Common Customs Tariff for the purposes both of its effective operation and of legal certainty.

'printed'

'For the purpose of this Chapter, the term includes not only reproduction by the several methods of ordinary hand and mechanical

printing (lithography, off-set printing, heliography, photogravure, etc.), but

KUNSTVEREIN v HAUPTZOLLAMT MUNSTER

also by engraving, reproduction by duplicating machines, embossing,

photography, etc., irrespective of the form of the characters in which the

It is therefore necessary to consider whether there are not any particular rules which require artistic screen prints to be classified under a special heading.

7 Under the terms of (c) to Chapter 49 'Original engravings, prints or Note 1 lithographs (heading 99.02) or other articles falling within any heading in ...

99'

Chapter are not covered by Chapter 49.

As heading 99.02 constitutes a specific heading as compared to subheading 49.1 B, it is necessary to consider whether artistic screen prints are governed by heading 99.02, in other words, whether they may be regarded as 'Original engravings, prints and lithographs', which are defined by Note 2 to Chapter 99 as:

'impressions produced directly, in black and white or in colour, of one or of several plates wholly executed by hand by the artist, irrespective of the process or of the material employed by him, but not including any mechanical or photomechanical process'.

As the processes used in the production of artistic screen prints are, as has

previously been stated, partly mechanical or photomechanical in nature, such

prints are not produced 'of one or of several plates wholly executed by hand by the artist'.

Since that fact is in itself sufficient to rule out the classification of the articles in dispute under heading 99.02 and therefore requires them to be classified under subheading 49.1 B, it is unnecessary to consider whether they satisfy the criterion of originality.

9 For those reasons the answer to the question referred must be that artistic

screen prints fall within subheading 49.11 B of the Common Customs Tariff,

On those grounds,

THE COURT (Second Chamber)

in answer to the question referred to it by the Finanzgericht Munster by order of 19 January 1977, hereby rules:

Artistic screen prints fall within subheading 49.11 B of the

Common Customs Tariff, even if they are signed by hand by the

artist and if only a limited edition is produced.