Opinion of Mr Advocate General Van Gerven delivered on 8 November 1989. - Ingrid Raab v Hauptzollamt Berlin-Packhof. - Reference for a preliminary ruling: Finanzgericht Berlin - Germany. - Common Customs Tariff - Subheading 49.11 B and Heading Nº 99.02 - Art photograph. - Case C-1/89.



European Court reports 1989 Page 04423



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . The Finanzgericht ( Finance Court ) Berlin has asked the Court how art photographs by Robert Mapplethorpe should be classified in the Common Customs Tariff . The national court proposes three possible classifications : either as "Original engravings, prints and lithographs" under Heading No 99.02 of the Common Customs Tariff, or as artists' screen prints ( serigraphs ) covered by subheading 49.11 B or as photographs, also covered by subheading 49.11 B . ( 1 )

Background

2 . This question was raised in proceedings between Mrs Raab, the owner of an art gallery in Berlin, and the Hauptzollamt ( Principal Customs Office ) Berlin-Packhof . In March 1987 Mrs Raab had imported 36 photographs by Mapplethorpe from the United States . She had purchased these photographs for DM 66 783.30 and proposed to sell them in her gallery for a unit price of approximately DM 4 000 .

The customs authorities classified the photographs under subheading 49.11 B of the Common Customs Tariff . Pursuant to 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 should be classified under Heading No 99.02 of the Common Customs Tariff . Goods under that heading were exempt from customs duty and subject to import turnover tax at 7 %. In the alternative, she claimed that the photographs could be classified as artists' screen prints under subheading 49.11 B . For artists' screen prints customs duties were temporarily suspended by virtue of Council Regulation ( EEC ) No 1945/86 of 18 June 1986; ( 2 ) only import turnover tax at 14% was payable in that case .

Should art photographs be classified under Heading No 99.02?

3 . In this case it is not disputed that the photographs are art photographs by the photographer Robert Mapplethorpe, who died on 9 March 1989 . The question arising in this case is whether art photographs must, precisely because of their artistic nature, be classified in the Common Customs Tariff differently from ( ordinary ) photographs which are expressly referred to in Heading No 49.11 .

4 . Mrs Raab answers this question in the affirmative . Her argument, as summarized in the order of the national court, is primarily directed at showing that the imported artistic photographs should be classified under Chapter 99 of the Common Customs Tariff, entitled "Works of art, collectors' pieces, and antiques ". For that 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 the authors of the nomenclature to promote the production of original works of art . Mrs Raab also refers to Note 4 to Chapter 99 which states that if an article falls within more than one tariff heading, it should be classified in one of the headings of the chapter on works of art . Lastly she states that, as the Court stated in its judgment of 15 May 1985 in the Onnasch case, ( 3 ) if 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 would be out of all proportion to the cost of that material .

5 . Mrs Raab naturally appreciates that a work cannot simply be brought within a general classification but must be classified under a specific heading . The only heading in Chapter 99 which can reasonably be considered is Heading No 99.02 . Consequently, her argument seeks to show that artistic photographs constitute "Original engravings, prints and lithographs ". It is clear from the order of the national court that for that purpose she argues that Mapplethorpe' s photographs are part of a limited edition taken from an artistically prepared original plate . She argues that if art photographs were not classified under Heading No 99.02, the principle of equality would be breached because in that case the legislature would have treated certain works of art less favourably than others . Therefore her interpretation should be chosen because it is most consistent with the underlying purpose of the provisions .

6 . In its judgment of 14 December 1988 in the Volker Huber case, ( 4 ) the Court stated that the exemption from customs duties for goods to be classified in Chapter 99 was intended to promote the production of artistic works . In my opinion, however, it cannot be inferred from that that goods may be classified under this chapter merely because they are works of art .

I agree with the Commission that the titles of chapters are for ease of reference only . That is expressly stated in Rule 1 of the Rules for the Interpretation of the Nomenclature 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 chapter notes . Note 2 to Chapter 99 defines "Original engravings, prints and lithographs" for the purposes of Heading No 99.02 . They are

"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 ".

7 . In its judgment in Volker Huber, the Court defined the expression "original lithograph ". It stressed that an original lithograph - and this also applies to the expressions "original engraving" and "original print" - is always a reproduction of a work executed by hand by the artist ( paragraph 17 ). Note 2 to Chapter 99 itself refers to a plate wholly executed by hand .

A photograph is not a reproduction of an image executed wholly by hand . There is no doubt that the photographer can, by the choice of subject, his personal vision and the techniques applied, including touching up, give the photograph taken a unique character, so that it may be considered a work of art . But even then the original "plate" is essentially produced by a technical process with the assistance of light and it is certainly not wholly executed by hand by the photographer .

Moreover, Note 2 to Chapter 99 excludes works executed by any mechanical or photomechanical process from the scope of Heading No 99.02 . In Volker Huber the Court stated in that connection that the exclusion of any mechanical or photomechanical process concerned the execution of the original plate and not the printing thereof ( paragraph 18 ).

8 . Under those circumstances it seems to me clear that the Community legislature chose as the relevant distinguishing criterion for purposes of the special treatment of works of art in the Common Customs Tariff the fact that the works are executed ( wholly ) by hand by the artist and, as a subsidiary criterion, the use of ( photo -) mechanical processes . Reference to the principle of equality as a criterion of interpretation is therefore of no purpose .

From the foregoing considerations it follows that art photographs cannot be covered by Heading No 99.02 of the Common Customs Tariff but must, like other photographs, fall under Heading No 49.11, and in particular subheading 49.11 B, "Other printed matter, including printed pictures and photographs ".

Must art photographs be regarded as artists' screen prints?

9 . In the alternative Mrs Raab maintains that if art photographs must be classified under subheading 49.11 B, then they must nevertheless be regarded as artists' screen prints so that they are exempt from customs duties by virtue of Council Regulation No 1945/86 .

I do not find this argument any more convincing . In its judgment of 27 October 1977 in Westfaelischer Kunstverein ( 5 ) the Court confirmed that artists' screen prints must be classified under subheading 49.11 B of the Common Customs Tariff . In the summary of the facts in that judgment there is a clear definition supplied by the Commission of the way in which an artists' screen print is executed :

"Screen printing is a printing process which uses a printed matrix made of a special gauze of natural ( silk ) or synthetic ( nylon, etc .) fibres or of wire thread ( stainless steel, etc .) stretched on a frame of wood or metal . There are two stages to the printing process : first, the preparation of the screen, that is, the 'transfer' on to the screen of the original design to be reproduced ( preparation of the printing frame ) and, secondly, its reproduction on to the printing surface ( printing )."

That definition is in my view sufficient to show that art photographs cannot be regarded as artists' screen prints because they are executed by means of a wholly different process .

Conclusion

10 . In conclusion I propose that the Court should answer the preliminary question as follows :

"Heading No 99.02 of the Common Customs Tariff may not be interpreted as covering art photographs . Like other photographs, they fall within subheading 49.11 B . Art photographs may not be regarded as artists' screen prints referred to in subheading ex 49.11 B of the table annexed to Council Regulation ( EEC ) No 1945/86 of 18 June 1986 ."

(*) Original language : Dutch .

( 1 ) The numbering refers to the Annex to Regulation ( EEC ) No 950/68 of the Council of 28 June 1968 on the Common Customs Tariff ( OJ, English Special Edition 1968 ( I ), p . 275 ) which was applicable at the material time, in particular the Annex as laid down by Council Regulation ( EEC ) No 3618/86 of 24 November 1986 ( OJ 1986, L 345, p . 1 ).

( 2 ) Council Regulation ( EEC ) No 1945/86 of 18 June 1986 temporarily suspending the autonomous Common Customs Tariff duties on a number of industrial products ( OJ 1986, L 174, p . 1 ).

( 3 ) Judgment of 15 May 1985 in Case 155/84 Onnasch v Hauptzollamt Berlin-Packhof (( 1985 )) ECR 1449, paragraph 11 .

( 4 ) Judgment of 14 December 1988 in Case 291/87 Volker Huber v Hauptzollamt Frankfurt am Main Flughafen (( 1988 )) ECR 6449, paragraph 16 .

( 5 ) Judgment of 27 October 1977 in Case 23/77 Westfaelischer Kunstverein v Hauptzollamt Muenster (( 1977 )) ECR 1985 .