C-228/89

OPINION OF MR TESAURO — CASE C-228/89

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 26 June 1990 *

Mr President, The first are applied by the artist to the Members of the Court, glass sphere whilst it is still extremely hot using coloured fluid glass and a spatula. A thin layer of glass surrounds the sphere and the pictures to protect them, and also to define the external form and create various 1. In the present preliminary-ruling effects. proceedings, the Finanzgericht München asks the Court to interpret certain headings of the Common Customs Tariff ('CCT') contained in Chapter 99 thereof, relating to works of art, collectors' pieces, and antiques. In the second case, three-dimensional figures are incorporated in the glass sphere.

2. The facts are as follows. Farfalla Flemming (the plaintiff in the main All the articles in question have a flat base proceedings) asked the Hauptzollamt of varying size. München-West (the 'Hauptzollamt') to release into free circulation, between 4 May 1981 and 30 April 1982, 13 postal consignments of what were described as 'paperweights' from the United States of America, declaring them as 'original As a result of the manufacturing process, sculptures in glass/any material' under which is essentially executed by hand, every Heading 99.03 of the CCT, which speci­ individual article is different from the fically covers 'original sculptures and others; however, artists produce, sign and statuary, in any material'. sell for unit prices of USD 35 to 300 — on which discounts are given — fairly large numbers of paperweights which are similar in size, decoration and execution.

4. Farfalla Flemming objected to that classi­ 6. Therefore, I consider that in the present fication and, on dismissal of its objection, case the only choice to be made is between appealed to the Finanzgericht München, inclusion under Heading 99.03 and which decided to ask the Court of Justice exclusion from Chapter 99, and that the for a preliminary ruling as to whether the possibility of inclusion under Heading 99.01 articles in question, in which the represen­ must be dismissed outright. tations are two-dimensional, are to be classified as paintings (Heading 99.01) or as sculptures (Heading 99.03), and whether those articles, and the similar ones containing three-dimensional represen­ That is particularly clear in the case of the tations, were of a commercial character paperweights which have glass figures inside within the meaning of Note 3 to Chapter 99 them, in view of the three-dimensional of the CCT . nature of the representation; but that statement applies also to paperweights on to which the representations are affixed by the application of fluid coloured glass whilst the sphere is still extremely hot. In the event of the latter question being answered in the affirmative, the national court also asked the Court to specify the criteria for deciding whether or not the products in question should be regarded as It must be borne in mind in the first place commercial in character. that glass is not a material normally used in painting, but is typically intended for the creation of three-dimensional works of art, and in the second place that a paperweight, 5. The wording of the first question, seen as a whole, is undeniably a three- concerning the scope of Headings 99.01 and dimensional article.

If a different criterion were to be used for In its view, paperweights are original works classification purposes and the mass of glass of art, designed, painted, shaped and signed were regarded simply as a medium (it being individually by well-known artists, thus considered, for example, that the artistic falling within Chapter 99 of the CCT. value of the work lies exclusively in the colouring), the customs authorities would be exposed to a number of uncertainties since, in view of the fact that a sculpture may also 8. Let me say straight away that Farfalla be hand-coloured by an artist and that Flemming's arguments seem to me to be paperweights may take the most varied defective in a number of respects. forms, the inspecting official would have from time to time to determine whether the essential artistic element of a hand-painted three-dimensional work was its form or the way in which it was coloured. In the first place, manual manufacture is in itself common to both artistic works and works of craftsmanship of a commercial character; moreover, the real purpose of an article, in the absence of other points of reference, is a factor which falls outside the 7. That said, it is still necessary to establish customs authorities' appraisal and in any whether the articles in question, which are case does not constitute an effective theoretically classifiable under Heading criterion for distinguishing a work of art 99.03, which is concerned with sculptures, from an ordinary ornamental article, the should not on the other hand be placed, by latter likewise having no specific use. virtue of their commercial character, in the chapter relating to the material of which they are made (as has been stated, that view would be valid if the Court were to consider that any of the articles in question might be Finally, the fact that the article may be classified under Heading 99.01, which is signed by a well-known artist (and often the concerned with paintings and drawings). work is merely initialled) cannot in itself constitute an essential factor in customs classification, since although most of the artists producing paperweights will probably be well known among aficionados of that In that connection, the plaintiff in the main kind of 'art', they may be wholly unknown proceedings draws particular attention to to customs officials. the fact that the description 'paperweight' may be misleading.

The fact that the artistic value of an artistic work may greatly exceed its functional value is not therefore, in the Commission's If for example a famous artist decided to view, a valid criterion for customs classifi­ use as a medium for one of his paintings a cation. The customs authorities are not in a plate or an ashtray, and made only one position to assess the artistic value of an original, which was sold for a very high article and must rely exclusively on objective price in the art market, it could not characteristics, which can easily be reasonably be contended that, merely perceived and are apparent from the because its form was that of a plate or external aspect of the product. ashtray, it competed with similar industrially produced articles or works of craftsmanship and should therefore be subject to the rate of duty prescribed for those products. It follows that, when an artist creates sculptures having the form of articles in common use, those articles will be classified according to the materials from which they As the Court has already had occasion to are made — even if they are works of emphasize, if the rate of customs duty laid art — since they are commercial in down for the material used were applied to character and are likely to be found on the a value for customs purposes fixed on the market in competition with similar indus­ basis of the work's artistic nature, the duty trially manufactured products. payable would be out of all proportion to the cost of that material. 1

The fact that the articles may be unique hand-made pieces or may never in fact be Not only that, but the solution proposed by used functionally is therefore wholly the Commission, besides being potentially irrelevant in the Commission's view. unfair, is not capable of resolving all the problems concerning the customs classifi­ cation of the paperweights at issue here.

they are either too big or too The exemptions provided for in Chapter 99 small — obviously cannot be used as paper­ of the CCT are, as we know, intended to weights. promote trade in cultural and educational objects between peoples and that purpose, as the Court has had occasion to emphasize, is decisive for the interpretation of the 4 heading in question. In those circumstances therefore, since the articles in question are not similar to ordinary paperweights, the classification rule suggested by the Commission would be of no help to the customs authorities; the latter, finding themselves confronted with 12. It must then be borne in mind that the an article which does not appear to have a Court has consistently held that, for the specific use, ought in any event to have at purpose of interpreting the CCT, both the their disposal some other criteria suitable for notes at the beginning of each chapter of it customs classification of the goods. and the explanatory notes to the Customs Cooperation Council nomenclature ('the CCC nomenclature') provide important means of ensuring uniform application of the tariff and as such may be regarded as 11. Whilst it is true that, as the Court has useful aids for interpretation. pointed out on several occasions, the artistic value, if any, of an article is determined by reference to subjective and indeterminate criteria, whereas the customs classification must be based on objective criteria adopted by the CCT for the purposes both of its In interpreting the headings in question, 2 effective operation and of legal certainty, it account must therefore be taken not only of is nevertheless true that the same decisions the wording and the scheme of the CCT but of the Court show that it is possible to also of the explanatory notes. furnish the customs authorities with certain precise points of reference which may assist them in determining, where it is necessary to do so, whether an article is artistic in character, to the exclusion of subjective From the CCC nomenclature explanatory criteria. notes to Chapter 99 it appears that 'most articles falling in the present chapter are either unique, or at least exist in such very small numbers that they may not be freely In that regard it is appropriate to point out available for purchase'. that, as the Court has already made clear, in the event of its being necessary to interpret a heading allowing duty-free importation, account must be taken of the purpose of the exemption. 3 Moreover, according to those notes, most of the articles covered by Chapter 99 'are 2 — Case C-1/89 Raab [1989] ECR 4423, paragraph 25, and Case 23/77 Westfälischer Kunstverein v Hauptzollamt not dealt with in ordinary commercial trans­ Münster [1977] ECR 1985, paragraph 3. actions; some are, however, handled by a 3 — Case 200/84 Daiber vHauplzollamt Reutlingen [1985] ECR 3363, paragraph 15, and Case 252/84 Collector Guns v Hauptzollamt Koblenz [1985] ECR 3387, paragraph 12. 4 — Daiber and Collector Guns, supra.

13. Applying those principles, the Court, in relation to two disputes concerning the importation of a motor car of some age and antique pistols and holsters, emphasized in For that purpose, I consider that the fact particular that, whilst it is true that that a particular article is executed by hand, collectors' pieces are not normally used for is signed by the author of the work and is their original purpose, it cannot be ruled out produced in extremely limited numbers is that their functional capacity may remain certainly an important factor such as to intact; and it also stated that collectors' distinguish it from similar articles of a pieces, within the meaning of Heading commercial character. 99.05 of the CCT (which are also exempted from duty), are relatively rare articles which are not normally used for their original purpose, are the subject of special trans­ actions outside the normal trade in similar The high price, which in any event bears no utility articles and are of high value. 6 relation to the intrinsic value of the constituent elements of the sculpture or statuary, and a finding that the work in question is the subject of transactions outside the usual market for similar articles, may therefore provide further confirmation 14. The line of reasoning followed by the of the fact that the article in question is not Court in the judgments cited seems to me to in a position to compete with similar works, be the one most likely to lead to a solution and although it may be similar in form to which fulfils the requirements both of legal articles in common use, it is not in fact certainty and of fairness. intended to be used for its ostensible purpose. 5 — Darber, supra, paragraph 20, and Collector Guns, supra, paragraph 17 7 — Darber, paragraphs 22 to 24 and Collectors Guns, para­ 6 — Ibid. graphs 19 to 21, supra.