Opinion of Mr Advocate General Van Gerven delivered on 29 November 1988. - Volker Huber v Hauptzollamt Frankfurt am Main-Flughafen. - Reference for a preliminary ruling: Hessisches Finanzgericht - Germany. - Common Customs Tariff - Heading 99.02 - Original lithographs. - Case 291/87.



European Court reports 1988 Page 06449



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . The Hessiches Finanzgericht has requested a preliminary ruling on the interpretation of Heading 99.02, or more particularly the expression "original lithographs" in the Annex to Regulation No 950/68 of the Council of 28 June 1968 on the Common Customs Tariff .

Note 2 to Chapter 99, "Works of art, collectors' pieces and antiques", defines Heading 99.02 as follows :

"For the purposes of Heading 99.02, the expression 'original engravings, prints and lithographs' means 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 ."

Background

2 . The undertaking Volker Huber delivered to the Hauptzollamt Frankfurt am Main 10 000 lithographs printed from two plates executed by hand by the Italian artist Bruno Bruni with the following features :

( i)the lithographs were executed by means of a mechanical press;

( ii ) they were executed by means of a transfer process enabling a "multiple print" to be obtained;

( iii ) a large number were printed ( 8 400 and 4 500 copies respectively );

( iv ) they were not signed;

( v ) they were not numbered .

Volker Huber described the lithographs as "original lithographs" falling under Heading 99.02 . Articles falling under that heading are exempt from customs duties .

The Hauptzollamt Frankfurt am Main classified the goods under Heading 49.11 ( Other printed matter, including printed pictures and photographs ) for which customs duties are payable .

Volker Huber challenged the decision before the Hessiches Finanzgericht . After first obtaining an expert opinion on the manner in which the lithographs at issue were executed the Finanzgericht referred three questions to the Court which may be summarized as follows :

( 1 ) Are they still "original lithographs" when they have been printed by a mechanical process?

( 2 ) If so, are they still "original lithographs" if a transfer process has been used in order to obtain a multiple print?

( 3 ) Is the number of impressions relevant in interpreting the term "original lithographs"?

In the course of the proceedings, written observations have been lodged by Volker Huber and the Commission of the European Communities .

No obvious answer

3 . There is no obvious answer to the questions .

There are practical difficulties in the way of a strict interpretation of the relevant provisions . There are also differences between the various language versions of the provisions . I shall return to that in section 4 .

In addition, neither the two main international conventions on copyright ( 1 ) nor the legislation of the Member States give a uniform definition of the term "original lithographs ". From the information supplied to the Court it appears that academic writers themselves are divided about the scope of the term .

Finally, the Court has not yet given a specific ruling on the question . It is true that in the judgment of 27 October 1977 in Case 23/77 Westfaelischer Kunstverein v Hauptzollamt Minstre (( 1977 )) ECR 1985 the Court considered the question whether screen prints could be regarded as original lithographs within the meaning of Heading 99.02 of the Common Customs Tariff . However, it did not consider at the time the question whether such screen prints were original works of art . It decided that in the absence of express mention in Chapter 99, concerning works of art, such articles fell within the scope of Chapter 49, which concerns prints .

There is, however, an essential factor in the case which no one has challenged : the lithographs have been printed from an original drawing made by hand by an Italian artist . They are therefore not reproductions of a work previously created, in which case the lithographs might be regarded as "pictures and other products of the printing industry" within the meaning of Chapter 49 of the Common Customs Tariff . They are more than that . The parties recognize that the lithographic plate, or more correctly the transfer paper used to execute the plate, is an original, that is to say a work of art created specially for printing lithographs . The only point at issue is whether the process used to make the lithographs from the work still allows the lithographs to be regarded as "original" and if so up to what number .

First question : is mechanical printing permissible?

4 . The first question put to the Court is essentially whether they are still "original lithographs" within the meaning of Heading 99.02 of the Common Customs Tariff where the printing is by a mechanical process, as in the present case .

The Commission rightly observed that if the majority of the language versions of the wording of Note 2 to Chapter 99 were interpreted literally the answer to that question would be in the negative . The German and English versions leave no room for doubt in that respect . The Dutch version is very explicit : "... ongeacht het materiaal waarop het afdrukken is geschied en ongeacht de gevolgde techniek, met uitzondering van de mechanische en van de fotomechanische reproduktietechniek ". Because of the repetition of the word "techniek" the wording cannot be interpreted otherwise than as meaning that lithographs printed mechanically are not original .

It seems to me, however, that the circumstances do not permit a conclusion to be based solely on a strict interpretation of most of the language versions of the provision at issue . In that respect the following considerations seem relevant :

( i ) a literal interpretation would be unreasonable since printing almost always implies the use of some kind of mechanical process;

( ii ) Volker Huber states that there is no photomechanical printing process . On the other hand there are photomechanical processes for making plates;

( iii ) the wording of Note 2 to Chapter 99 has its origin in the 1949 Brussels Nomenclature, which was itself drafted on the basis of the definition given in 1937 by the Comité national français de la gravure ( Duennebier : Bruchmanns Handbuch der modernen Druckgraphik, Munich, 1973, p . 114 ). That expressly states that it is not the impressions but the plates which must be entirely made by hand if the products are to be regarded as original lithographs . That shows in addition that it is the French version which served as the model for the wording of Note 2 to Chapter 99 and it is precisely the French version which may be interpreted as meaning that the exclusion of the use of mechanical and photomechanical processes relates to the execution of the plates themselves and not the printing of the lithographs from them .

For those reasons it seems to me that Note 2 to Chapter 99 must be interpreted as meaning that the exclusion of mechanical processes concerns the making of the plates and not the printing of the lithographs . Any other decision would restrict the scope of the term "original lithographs" drastically and would be incompatible with established techniques . I therefore consider that mechanically printed lithographs cannot be excluded on those grounds from the scope of Heading 99.02 of the Common Customs Tariff .

Second question : is a transfer process allowing "multiple lithographs" acceptable?

5 . Since the first question has been answered in the affirmative the second question, whether the mechanical printing process used in the present case may be used to produce "original lithographs" within the meaning of Heading 99.02 of the Common Customs Tariff, arises .

According to Note 2 to Chapter 99 of the Common Customs Tariff the lithograph must be produced directly from a plate wholly executed by hand . Contrary to a literal interpretation of the wording, it is nevertheless generally accepted that the artist is not required to execute his drawing directly onto the plate . The Explanatory Notes on the Nomenclature of the Customs Cooperation Council authorized the use of transfer paper . The drawing made on the paper is then transferred to the lithographic plate by a chemical process . Strictly speaking the technique does not involve a "plate wholly executed by hand ".

In the case of the technique used in the present case the separation between the handwork of the artist and the plates from which the lithographs are produced is even greater . It is true that the first lithographs have been produced in the same way as when transfer paper is used, namely by transferring the drawing made on the paper to the lithographic plate, but once the first plate show marks of wear a fresh transfer paper is automatically made and used in turn for making a new plate .

Both Volker Huber and the Commission agree that that technique may be used for making original lithographs . I propose to follow them in that respect .

Since the process using transfer paper is generally authorized there is no reason for not also permitting the technique used here while leaving the artist to decide whether or not he wishes to use the technique . It seems established that from the point of view of quality there is no difference between lithographs made by means of one or the other process . Nor is there any difference in substance : in both cases the original drawing is by hand by the artist . That question, moreover, has a certain similarity with the question put to the Court in Case 155/84 Onnasch v Hauptzollamt Berlin-Packhof (( 1985 )) ECR 1449 ( judgment of 5 May 1985 ). That case was concerned with the question whether a work of art consisting of a collection of contemporary material might be regarded as "original sculptures and statuary, in any material ". Departing from a classic interpretation of the term "sculpture" and following the opinion of Mr Advocate General Lenz, the Court held that it was necessary to interpret the term as referring to all three-dimensional artistic productions, irrespective of the techniques and materials used .

Third question : is the number of impressions relevant?

6 . Lastly, the third question raises the issue whether the number of lithographs produced from a single original drawing is relevant to classification under Heading 99.02 of the Common Customs Tariff .

A restriction on the number of impressions is, as the Commission suggests, undoubtedly an important economic criterion . Experts cited by Volker Huber at the hearing whose authority cannot be questioned are, however, against the application of that criterion in deciding whether a lithograph is original .

7 . It does not seem to me desirable for the Court to adopt an interpretation of the term "original lithographs" based on a quantitative criterion ( the number of impressions ) for which only a thorough analysis, which would go beyond the scope of the case with which we are concerned today, could show whether it is compatible with present techniques and concepts . In my opinion it is for the Community legislature to rule on that issue .

For reasons of legal certainty such a quantitative criterion must be fixed precisely in a legal definition indicating the number of impressions and stating any conditions . Naturally any such definition is also exclusively a matter for the Community legislature ( see the judgment of 15 July 1970 in Case 41/69 ACF Chemiefarma NV v Commission (( 1970 )) ECR 661, in which the Court refused to fix a general limitation period ).

Since it has been shown in the present case that the wording of Note 2 to Chapter 99 in the various language versions is ambiguous and, if it is construed literally, inappropriate for the techniques in use - it has led to applications which at first sight seem contra legem - that in itself is sufficient to justify intervention by the legislature .

8 . To summarize, I suggest that the Court answer the questions put by the Hessisches Finanzgericht as follows :

"( 1)Lithographs printed by a mechanical process may be classified under Heading 99.02 of the Common Customs Tariff .

( 2)Lithographs made by means of a transfer process involving the making of more than one plate from the original transfer paper may be classified under Heading 99.02 of the Common Customs Tariff .

( 3)In the present state of the law the number of impressions does not affect the classification of lithographs under Heading 99.02 of the Common Customs Tariff ."

(*) Translated from the Dutch .

( 1 ) Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886 ( amended ) and Universal Copyright Convention of 6 September 1952 ( amended ).