61977CJ0023_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 23/77
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE IVTH SENATE OF THE FINANZGERICHT MUNSTER, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
WESTFALISCHER KUNSTVEREIN, MUNSTER,
AND
HAUPTZOLLAMT MUNSTER
Subject of the case
ON THE INTERPRETATION OF TARIFF SUBHEADING 49.11 B AND OF HEADING 99.02 OF THE COMMON CUSTOMS TARIFF,
Grounds
1 BY ORDER OF 19 JANUARY 1977, RECEIVED AT THE COURT ON 11 FEBRUARY 1977, THE FINANZGERICHT MUNSTER REFERRED TO THE COURT THE FOLLOWING QUESTION FOR A PRELIMINARY RULING IN ACCORDANCE WITH ARTICLE 177 OF THE EEC TREATY :
' ON 14 MARCH 1973 DID A LIMITED EDITION OF NOT MORE THAN 150 ARTISTIC COLOUR SCREEN PRINTS ( COLOUR SERIGRAPHS ) NUMBERED AND SIGNED PERSONALLY BY THE ARTIST FALL WITHIN TARIFF SUBHEADING 49.11 B OR TARIFF HEADING 99.02 OF THE COMMON CUSTOMS TARIFF?
'
2 THAT QUESTION AROSE WITHIN THE CONTEXT OF AN ACTION CONCERNING THE TARIFF CLASSIFICATION OF 150 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 IMPORTER CONTESTS THIS CLASSIFICATION AND MAINTAINS THAT THE ARTICLES IN DISPUTE FALL WITHIN TARIFF HEADING 99.02 ( ' ORIGINAL ENGRAVINGS, PRINTS AND LITHOGRAPHS ' ).
3 THE ACTION THEREFORE CONCERNS THE DISTINCTION BETWEEN TWO HEADINGS IN THE COMMON CUSTOMS TARIFF, ONE OF WHICH, SUBHEADING 49.11 B, FALLS WITHIN THE GENERAL CATEGORY ' PRINTED BOOKS, NEWSPAPERS, PICTURES AND OTHER PRODUCTS OF THE PRINTING INDUSTRY ; MANUSCRIPTS, TYPESCRIPTS AND PLANS '
( CHAPTER 49 ) WHILE THE OTHER, HEADING 99.02, IS COVERED BY THE CONCEPT OF ' WORKS OF ART, COLLECTORS '
PIECES, AND ANTIQUES '
( CHAPTER 99 ).
THAT DISTINCTION CANNOT BE BASED ON THE POSSIBLE ARTISTIC MERIT OF THE AFOREMENTIONED ARTICLES, SOMETHING WHICH IS DEFINED ESSENTIALLY BY REFERENCE 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 .
4 THE FILE SHOWS THAT SCREEN PRINTING IS A PRINTING PROCESS WHICH IS AT LEAST PARTLY MECHANICAL OR PHOTOMECHANICAL IN NATURE .
ALTHOUGH THE PROCESS IN QUESTION ENABLES AN UNLIMITED NUMBER OF REPRODUCTIONS TO BE OBTAINED, THE SO-CALLED ' ARTISTIC '
SCREEN PRINT IS NORMALLY PRODUCED IN LIMITED EDITIONS OF A FEW HUNDRED COPIES AT THE MOST .
5 BOTH THE WORDING AND THE GENERAL SCHEME OF CHAPTER 49 OF THE COMMON CUSTOMS TARIFF SHOW THAT SUBHEADING 49.11 B IS A RESIDUAL HEADING WHICH COVERS ALL ARTISTIC PRINTED MATTER NOT LISTED OR REFERRED TO ELSEWHERE .
THAT FINDING IS CONFIRMED BY THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE IN THE GENERAL EXPLANATORY NOTE TO CHAPTER 49, WHICH STATES THAT :
' FOR THE PURPOSE OF THIS CHAPTER, THE TERM ' PRINTED '
INCLUDES NOT ONLY REPRODUCTION BY THE SEVERAL METHODS OF ORDINARY HAND AND MECHANICAL PRINTING ( LITHOGRAPHY, OFF-SET PRINTING, HELIOGRAPHY, PHOTOGRAVURE, ETC .), BUT ALSO BY ENGRAVING, REPRODUCTION BY DUPLICATING MACHINES, EMBOSSING, PHOTOGRAPHY, ETC ., IRRESPECTIVE OF THE FORM OF THE CHARACTERS IN WHICH THE PRINTING IS EXECUTED ( E . G ., LETTERS OF ANY ALPHABET, FIGURES, SHORTHAND SIGNS, MORSE OR OTHER CODE SYMBOLS, BRAILLE CHARACTERS, MUSICAL NOTATIONS, PICTURES AND DIAGRAMS ) ' .
AS ARTISTIC SCREEN PRINTS ARE PRODUCED BY A PRINTING PROCESS IT MUST BE POSSIBLE FOR THEM TO FALL WITHIN SUBHEADING 49.11 B .
FOR THAT REASON IT IS NOT POSSIBLE TO APPLY GENERAL RULE NO 4 FOR THE INTERPRETATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF, ACCORDING TO WHICH GOODS NOT FALLING WITHIN ANY HEADING OF THE TARIFF SHALL BE CLASSIFIED UNDER THE HEADING APPROPRIATE TO THE GOODS TO WHICH THEY ARE MOST ASKIN .
6 GENERAL RULE NO 3 ( A ) PROVIDES, HOWEVER, THAT ' THE HEADING WHICH PROVIDES THE MOST SPECIFIC DESCRIPTION '
SHALL BE PREFERRED TO ' HEADINGS PROVIDING A MORE GENERAL DESCRIPTION ' .
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 NOTE 1 ( C ) TO CHAPTER 49 ' ORIGINAL ENGRAVINGS, PRINTS OR LITHOGRAPHS ( HEADING 99.02 ) . . . OR OTHER ARTICLES FALLING WITHIN ANY HEADING IN CHAPTER 99 '
ARE NOT COVERED BY CHAPTER 49 .
AS HEADING 99.02 CONSTITUTES A SPECIFIC HEADING AS COMPARED TO SUBHEADING 49.11 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 ' .
8 IT EMERGES FROM THE WORDING OF HEADING 99.02 TOGETHER WITH NOTE 2 TO CHAPTER 99 THAT IN ORDER TO BE CLASSIFIED UNDER HEADING 99.02, PRINTED PRODUCTS MUST FALL WITHIN ONE OF THE THREE CATEGORIES REFERRED TO THEREIN, WHICH MEANS, IN PARTICULAR, THAT THEY MUST BE ORIGINAL WORKS AND THAT THE METHOD OF THEIR PRODUCTION MUST BE IN ACCORDANCE WITH THE REQUIREMENTS OF THAT NOTE .
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 49.11 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, EVEN IF THEY ARE SIGNED BY HAND BY THE ARTIST AND PRODUCED ONLY IN A LIMITED EDITION .
Decision on costs
COSTS
10 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE .
AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
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 .