C-1/89

OPINION OF MR VAN GERVEN —CASE C-1/89

OPINION OF MR ADVOCATE GENERAL VAN GERVEN delivered on 8 November 1989 *

Mr President, the Common Customs Tariff. Pursuant to Members of the Court, that classification customs duty at 5.8% and import turnover tax at 14% were payable. Mrs Raab lodged an objection against that decision. In her view the photographs 1. The Finanzgericht (Finance Court) should be classified under Heading No Berlin has asked the Court how art photo­ 99.02 of the Common Customs Tariff. graphs by Robert Mapplethorpe should be Goods under that heading were exempt classified in the Common Customs Tariff. from customs duty and subject to import The national court proposes three possible turnover tax at 7 %. In the alternative, she classifications: either as 'Original claimed that the photographs could be engravings, prints and lithographs' under classified as artists' screen prints under Heading No 99.02 of the Common subheading 49.11 B. For artists' screen Customs Tariff, or as artists' screen prints prints customs duties were temporarily (serigraphs) covered by subheading 49.11 B suspended by virtue of Council Regulation or as photographs, also covered by (EEC) No 1945/86 of 18 June 1986; 2only subheading 49.11 B. 1 import turnover tax at 14% was payable in that case.

Background

4. Mrs Raab answers this question in the art photographs were not classified under affirmative. Her argument, as summarized Heading No 99.02, the principle of equality in the order of the national court, is would be breached because in that case the primarily directed at showing that the legislature would have treated certain works imported artistic photographs should be of art less favourably than others. Therefore classified under Chapter 99 of the Common her interpretation should be chosen because Customs Tariff, entitled 'Works of art, it is most consistent with the underlying collectors' pieces, and antiques'. For that purpose of the provisions. purpose she raises a number of arguments which I understand as follows. The goods defined in the headings under Chapter 99 are exempt from customs duties. From this it would appear that it was the intention of 6. In its judgment of 14 December 1988 in the authors of the nomenclature to promote the Volker Huber case, 4 the Court stated the production of original works of art. Mrs that the exemption from customs duties for Raab also refers to Note 4 to Chapter 99 goods to be classified in Chapter 99 was which states that if an article falls within intended to promote the production of more than one tariff heading, it should be artistic works. In my opinion, however, it classified in one of the headings of the cannot be inferred from that that goods may chapter on works of art. Lastly she states be classified under this chapter merely that, as the Court stated in its judgment of because they are works of art. 15 May 1985 in the Onnasch case, 3if the rate of customs duty laid down for the material used were applied to a value for customs purposes fixed on the basis of the work's artistic nature, the duty payable I agree with the Commission that the titles would be out of all proportion to the cost of of chapters are for ease of reference only. that material. That is expressly stated in Rule 1 of the Rules for the Interpretation of the Nomen­ clature of the Common Customs Tariff. The same provision then states that classification is to be determined according to the terms of the headings and any relevant section or 5. Mrs Raab naturally appreciates that a chapter notes. Note 2 to Chapter 99 defines work cannot simply be brought within a Original engravings, prints and lithographs' general classification but must be classified for the purposes of Heading No 99.02. under a specific heading. The only heading They are in Chapter 99 which can reasonably be considered is Heading No 99.02. Conse­ quently, her argument seeks to show that artistic photographs constitute Original engravings, prints and lithographs'. It is 'impressions produced directly, in black and clear from the order of the national court white or in colour, of one or of several that for that purpose she argues that plates wholly executed by hand by the artist, Mapplethorpe's photographs are part of a irrespective of the process or of the material limited edition taken from an artistically employed by him, but not including any prepared original plate. She argues that if mechanical or photomechanical process'.

Moreover, Note 2 to Chapter 99 excludes I do not find this argument any more works executed by any mechanical or convincing. In its judgment of 27 October photomechanical process from the scope of 1977 in Westfälischer Kunstverein 5 the Heading No 99.02. In Volker Huber the Court confirmed that artists' screen prints Court stated in that connection that the must be classified under subheading 49.11 B exclusion of any mechanical or photomech­ of the Common Customs Tariff. In the anical process concerned the execution of summary of the facts in that judgment there the original plate and not the printing is a clear definition supplied by the thereof (paragraph 18). Commission of the way in which an artists' screen print is executed:

'Screen printing is a printing process which 8. Under those circumstances it seems to uses a printed matrix made of a special me clear that the Community legislature gauze of natural (silk) or synthetic (nylon, chose as the relevant distinguishing criterion etc.) fibres or of wire thread (stainless steel, for purposes of the special treatment of etc.) stretched on a frame of wood or metal. works of art in the Common Customs Tariff There are two stages to the printing the fact that the works are executed process: first, the preparation of the screen, (wholly) by hand by the artist and, as a subsidiary criterion, the use of (photo-) 5 — Judgment of 27 October 1977 in Case 23/77 Watfiliscber mechanical processes. Reference to the Kimstvereinv HauptzollamlMüniter[\977] ECR 1985.

RAAB v HAUPTZOLLAMT BERLIN-PACKHOF