B.

Here at the outset of my opinion I should like to set out the wording of the relevant tariff headings in the version applicable at the material time: ( 1 ) ‘99.03 Original sculptures and statuary, in any material’; ‘39.07 Articles of materials of the kinds described in headings Nos 39.01 to 39.06: A. Piping and tubing, with fittings attached, suitable for conducting gases or liquids, for use in civil aircraft B. Other: I. Of regenerated cellulose II. Of vulcanized fibre III. Of hardened proteins IV. Of chemical derivatives of rubber V. Of other materials: (a) Spools, reels and similar supports for photographic and cinematographic film or for tapes, films and the like falling within heading No 92.12 (b) Fans and hand screens, non-mechanical; frames and handles therefor and parts of such frames and handles (c) Corset busks and similar supports for articles of apparel or clothing accessories (d) Other’. I do not propose to enumerate all the materials referred to under tariff headings Nos 39.01 to 39.06, but would mention that they include artificial resins and plastic materials, cellulose esters and ethers, and articles thereof. Since the parties are agreed that the imported article is a work of art, the only question at issue in these proceedings is whether it is a work of sculpture or statuary. The Hauptzollamt, relying on an opinion of the Zolltechnische Prüfungs- und Lehranstalt of the Oberfinanzdirektion [Principal Revenue Office] Berlin, construed the concept of sculpture or statuary restrictively. It stated that only objects having a sculptural form, in the round, made by traditional techniques, that is, worked from a hard material or moulded in a soft material, and including sculptures therefore, could be regarded as ‘original sculptures and statuary’. Other art works, in particular contemporary art works such as textile hangings, collages, assemblages, etc., could not be classified under Chapter 99 because of the techniques or media used in making them and should be classified under the chapter for the relevant materials. The decision to classify the sculpture made of cardboard sections, canvas and synthetic materials under tariff heading No 39.07 was neither arbitrary nor a stopgap interpretation because the sculpture did not fall within the scope of tariff heading No 99.03 by virtue of the method of production and the atypical materials used in making it. I cannot follow that restrictive interpretation of the concept of ‘sculptures and statuary’. In the order for reference, the Berlin Finanzgericht refers to the entry on ‘Bildhauerkunst’ in the 1972 edition of the Meyers-Enzyklopädisches Lexikon. That entry states : ‘The terms “Bildhauerkunst”, “Bildnerei” and “Plastik” are normally used to mean the same thing, although, strictly speaking, “Plastik” refers only to works in a soft material (clay, wax, plaster) and to sculptures which have been cast, while “Bildhauerkunst” and “Skulptur” refer only to works carved out of a hard material (stone, wood). The principal materials used in sculpture were stone, wood, metal, ivory, clay and wax. ... In modern times “Bildhauerkunst” has acquired a considerably extended meaning; new materials (junk, plastics) are used and new techniques (welding and soldering of pieces of iron, work with electric cutting tools, cast stone, etc.) are applied ... ’. In the 1981 edition of the Neues Fischer Lexikon,‘Bildhauerkunst’ is defined as the art of creating a three-dimensional figurative form. It states: ‘Bildhauerkunst (Plastik, Skulptur), the art of creating a three-dimensional figurative form, either carved from wood or ivory, sculpted from stone (marble, alabaster, porphyry, granite), modelled in a soft medium which later hardens (clay, wax, plaster) or cast in metal (hammered, embossed, etc.).**.. Forms: statue in the round (freestanding, worked on all sides), bas relief, mezzorelievo, high relief ...’. It is clear that even ordinary usage does not justify restricting the concept of sculpture to hard material worked in the traditional way. Furthermore, the restriction to so-called ‘hard’ materials cannot be reconciled with the wording of the Common Customs Tariff which refers to ‘any material’. The wording of the tariff heading in the other language versions also suggests a liberal interpretation of the concept of sculpture. With the exception of the Danish version, they all use several expressions to render the term ‘Bildhauerkunst’, for example ‘Productions originales de l'art statuaire et de la sculpture’ in the French and ‘Original sculptures and statuary’ in the English. Thus tariff heading No 99.03 is not based on a restrictive interpretation of the concept of sculpture. In addition it should be pointed out that according to Note 4 (a) to Chapter 99, in case of doubt Chapter 99 is to take precedence: ‘Subject to Notes 1 to 3 above, articles falling within headings of this Chapter are to be classified in whichever of those headings is appropriate and not in any other heading of the Tariff.’ Final confirmation is to be found in tariff subheading 39.07 B V (d) and the kinds of objects usually classified under that subheading. I do not propose to quote all the specific provisions of the Explanatory Notes to the Customs Cooperation Council Nomenclature or the individual tariff classifications of the Commission but shall only mention two examples of cases in which the Commission has classified objects under that subheading. In Commission Regulation No 810/83 of 5 April 1983, ( 2 ) the Commission decided that —the following item was to be classified under tariff subheading 39.07 B V (d): ‘plastic moneybox in the form of a penguin, about 16 cm high, with a red scarf and a slot in the back for inserting coins.’ Article 1 of Commission Regulation No 1218/84 of 30 April 1984 ( 3 ) provides that: ‘Wash basins composed of 30% of artificial plastic materials (styrenated polyester resin) and 70% of filler (mainly of silicate) and having a coating of transparent artificial plastic material (styrenated polyester resin about 0.2 mm thick on the working surface), shall be classified in the Common Customs Tariff as follows: 39.07 Articles of materials of the kinds described in headings Nos 39.01 to 39.06: B. Other: V. Of other materials (d) Other.’ Those examples should suffice to demonstrate that it would be inappropriate to classify the imported work of art according to its material composition. Furthermore, I share the view of the Commission that it would be grossly unjust to classify the article, which derives its high value from the work done upon it by the artist, according to its material composition, since the value of the materials used is likely to be minimal. I also endorse the Commission's more general contention that, in any event, genuine artistic creation in the Community cannot practically be protected or promoted by means of the Common Customs Tariff and that the article in question should therefore be held to fall within Chapter 99.