C-291/87

OPINION OF MR VAN GERVEN —CASE 291/87

O P I N I O N OF M R ADVOCATE GENERAL VAN GERVEN delivered on 29 November 1988 *

Mr President, Bruni with the following features: Members of the Court,

(i) the lithographs were executed by means 1. The Hessische Finanzgericht has of a mechanical press; requested a preliminary ruling on the inter- pretation of Heading 99.02, or more particularly the expression 'original litho- graphs' in the Annex to Regulation No 950/68 of the Council of 28 June 1968 on the Common Customs Tariff. (ii) they were executed by means of a transfer process enabling a 'multiple print' to be obtained;

Note 2 to Chapter 99, 'Works of art, collectors' pieces and antiques', defines Heading 99.02 as follows: (iii) a large number were printed (8 400 and 4 500 copies respectively);

'For the purposes of Heading 99.02, the expression "original engravings, prints and lithographs" means impressions produced (iv) they were not signed; directly, in black and white or in colour, of one or of several plates wholly executed by hand by the artist, irrespective of the (v) they were not numbered. process or of the material employed by him, but not including any mechanical or photo- mechanical process.'

pictures and photographs) for which There are practical difficulties in the way of customs duties are payable. a strict interpretation of the relevant provisions. There are also differences between the various language versions of the provisions. I shall return to that in section 4. Volker Huber challenged the decision before the Hessiches Finanzgericht. After first obtaining an expert opinion on the manner in which the lithographs at issue were executed the Finanzgericht referred In addition, neither the two main inter­ three questions to the Court which may be national conventions on copyright 1nor the summarized as follows: legislation of the Member States give a uniform definition of the term `original lithographs'. From the information supplied to the Court it appears that academic writers themselves are divided about the (1) Are they still `original lithographs' when scope of the term. they have been printed by a mechanical process?

and other products of the printing industry' than as meaning that lithographs printed within the meaning of Chapter 49 of the mechanically are not original. Common Customs Tariff. They are more than that. The parties recognize that the lithographic plate, or more correctly the transfer paper used to execute the plate, is an original, that is to say a work of art created specially for printing lithographs. It seems to me, however, that the circum- The only point at issue is whether the stances do not permit a conclusion to be process used to make the lithographs from based solely on a strict interpretation of the work still allows the lithographs to be most of the language versions of the regarded as Original' and if so up to what provision at issue. In that respect the number. following considerations seem relevant:

First question: is mechanical printing (i) a literal interpretation would be un- permissible? reasonable since printing almost always implies the use of some kind of mechanical process;

4. The first question put to the Court is essentially whether they are still Original lithographs' within the meaning of Heading (ii) Volker Huber states that there is no 99.02 of the Common Customs Tariff where photomechanical printing process. On the printing is by a mechanical process, as in the other hand there are photomech- the present case. anical processes for making plates;

For those reasons it seems to me that Note 2 to Chapter 99 must be interpreted as meaning that the exclusion of mechanical processes concerns the making of the plates In the case of the technique used in the and not the printing of the lithographs. Any present case the separation between the other decision would restrict the scope of handwork of the artist and the plates from the term 'original lithographs' drastically which the lithographs are produced is even and would be incompatible with established greater. It is true that the first lithographs techniques. I therefore consider that mech­ have been produced in the same way as anically printed lithographs cannot be when transfer paper is used, namely by excluded on those grounds from the scope transferring the drawing made on the paper of Heading 99.02 of the Common Customs to the lithographic plate, but once the first Tariff. plate show marks of wear a fresh transfer paper is automatically made and used in turn for making a new plate.

Second question: is a transfer process allowing 'multiple lithographs' acceptable? Both Volker Huber and the Commission agree that that technique may be used for making original lithographs. I propose to follow them in that respect.

with the question put to the Court in Case criterion in deciding whether a lithograph is 155/84 (Onnasch ν Hauptzollamt Berlin- original. Packhof [1985] ECR 1449, judgment of 5 May 1985). That case was concerned with the question whether a work of art consisting of a collection of contemporary material might be regarded as 'original sculptures and statuary, in any material'. Departing from a classic interpretation of 7. It does not seem to me desirable for the the term 'sculpture' and following the Court to adopt an interpretation of the term opinion of Mr Advocate General Lenz, the 'original lithographs' based on a quantitative Court held that it was necessary to interpret criterion (the number of impressions) for the term as referring to all three-dimen­ which only a thorough analysis, which sional artistic productions, irrespective of would go beyond the scope of the case with the techniques and materials used. which we are concerned today, could show whether it is compatible with present tech­ niques and concepts. In my opinion it is for the Community legislature to rule on that issue.

Third question: is the number of impressions relevant? For reasons of legal certainty such a quanti­ tative criterion must be fixed precisely in a legal definition indicating the number of impressions and stating any conditions. Naturally any such definition is also exclu­ sively a matter for the Community legis­ lature (see the judgment of 15 July 1970 6. Lastly, the third question raises the issue in Case 41/69 ACF Chemiefarma NV ν whether the number of lithographs Commission [1970] ECR 661, in which the produced from a single original drawing is Court refused to fix a general limitation relevant to classification under Heading period). 99.02 of the Common Customs Tariff.