OPINION OF MR ADVOCATE GENERAL REISCHL

DELIVERED ON 6 OCTOBER 1977 ( 1 )

Mr President,

Members of the Court,

By order of 19 January 1977 the Finanzgericht Münster referred the following question to the Court 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 prints of 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?’

The facts giving rise to this question are these. On 14 March 1973 the plaintiff in the main action obtained from the customs office, Münster, clearance into free circulation of 150 colour screen prints (colour serigraphs) forming a limited edition of 150 prints, imported from the United States of America and personally signed And numbered by the American artist. The customs office classified the prints for tariff purposes under tariff subheading 49.11 B (‘Other printed matter, including printed pictures and photographs: B. Other’), under which conventional duty of 9 % and import turnover tax of 11 % were payable. The plaintiff in the main action argued however, that the prints should be classified under tariff heading 99.02 (‘Original engravings, prints and lithographs’) under which no customs duty and import turnover tax at only 5-5 %, would be payable.

The plaintiff therefore objected to the notice of assessment and, when its objection was not upheld, brought an action before the Finanzgericht (Finance Court) Münster. In support of its action it maintained that the imported articles were the work of an internationally known artist and were not reproductions but rather original works of graphic art. They could not therefore be regarded as pictures and other products of the printing industry within the meaning of Chapter 49 of the Common Customs Tariff, but had to be considered as works of art, within the meaning of Chapter 99 thereof. As artistic screen prints are not covered directly by any tariff heading, this case is governed by General Rule No 4 of the Rules for the interpretation of the nomenclature of the Common Customs Tariff, under 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 akin. From the point of view of customs law, therefore, artistic screen prints are to be treated either as lithographs, which fall within the terms of tariff heading 99.02, or as artists' tempera prints, which also clearly belong to the same tariff heading.

In the opinion of the Hauptzollamt, however, General Rule No 4 cannot be applied, since screen prints fall within tariff heading 49.11 B. As is also stated in the Explanatory Notes to Chapter 49 of the Brussels Nomenclature, such prints constitute products of the printing industry within the meaning of that chapter. Under Note 1 to Chapter 49 the only articles not covered by that chapter are those falling within any heading in Chapter 99. As regards screen prints, tariff heading 99.02 is the only one in that chapter which is relevant. However, the wording of the chapter and of Note 2 to Chapter 99, as well as the terms of the Explanatory Notes to tariff heading 99.02 rule out the extension of that tariff heading to cover screen prints. The plaintiffs reference to the classification slip concerning tempera prints issued by the Nomenclature Committee on 14 January 1970 is inappropriate, since it was only able to refer to General Rule No 4 because tempera prints are not produced by means of a printing process within the meaning of Chapter 49. It is, on the other hand, appropriate to refer in the present case to the classification slip of the Committee on Common Customs Tariff Nomenclature of 8 June 1973, which assigned comparable screen prints to tariff subheading 49.11 B.

In the preliminary ruling procedure, the Commission alone commented on that difference of opinion. It states that screen prints of the type involved in this instance, which are produced by a process in which the artist's design is transferred onto a screen and the colour is applied to the paper through a fine mesh, must in every case, that is, even when only limited numbers are produced and they are personally signed and numbered by the artist, be assigned to tariff subheading 49.11 B. The arguments which have been put forward in support of that view appear to me to be convincing.

In fact, the aforementioned General Rule No 4, under 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 akin, cannot be applied here. That is because tariff subheading 49.11 B virtually constitutes a residual heading for all pictures and other products of the printing industry. As is shown by the Explanatory Notes to Chapter 49 of the Brussels Nomenclature, that subheading applies if the goods are produced by means of a printing process. Such a printing process is also used — as has been shown — in the production of colour screen prints, although not in the production of tempera prints, to which the aforementioned classification slip referred.

On the other hand, tariff subheading 49.11 B, which applies without regard for the artistic value of the products, would not apply if a special tariff heading could be found for the products involved in this instance; according to General Rule No 3 (a) of the Rules for the interpretation of the nomenclature of the Common Customs Tariff, when goods are classifiable under two or more headings, the heading which provides the most specific description shall be preferred to headings providing a more general description. In the case of colour serigraphs tariff heading 99.02 could alone be regarded as such a special tariff heading. In fact, Note 1 to Chapter 49 of the Common Customs Tariff states that: ‘This chapter does not cover: … (c) Original engravings, prints and lithographs (heading No 99.02), postage, revenue or similar stamps falling within heading No 99.04, antiques of an age exceeding one hundred years or other articles falling within any heading in Chapter 99’. However, in the light of the terms of the tariff heading which, according to General Rule No 1 of the Rules for interpretation, is decisive, classification under 99.02 is inconceivable, since that heading refers to quite specific types of printed products (‘Original engravings, prints and lithographs’), in which colour serigraphs cannot be included. We must, moreover, bear in mind the definition contained in Note 2 to Chapter 99 of the Common Customs Tariff, which, as we have heard, was worked out by a group of art dealers of unquestioned standing, the Comité de la Gravure Française. According to that definition, for the purposes of heading 99.02‘Original engravings, prints and lithographs” 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”. Products of the aforementioned type clearly do not fit that definition, since plates wholly executed by hand by the artist are not employed in the production of colour screen prints and mechanical or photomechanical processes are involved to some extent.

Furthermore, as confirmation that the tariff classification recommended by the Commission is correct, reference may be made to the fact that attempts are at present being made to extend the aforementioned definition expressly to include colour screen prints. That shows that the current version of the definition is not so wide as the plaintiff in the main action wishes to make it. So long as that modification is not made by means of legislation, reasons of legal certainty require the procedure outlined above to be followed even if, as the Commission has rightly emphasized, in the light of the artistic quality of the articles in question such a procedure may appear to be rather unsatisfactory.

It is also of interest to note that by means of Regulation No. 1616/74 of the Council of 25 June 1974 (OJ L 174, p. 5) customs duties on “artists” screen prints (commonly described as serigraphs), signed by the artist and numbered from 1 to 200 under tariff subheading 49.11 B were suspended from 1 July 1974 for a limited period which was subsequently extended. As regards the payment of customs duty, therefore, the result regarded by the plaintiff as correct was achieved in 1974. An important point is, however — and this may be regarded as an authentic interpretation of the Common Customs Tariff — that the aforementioned Council measure also accepted that artists' screen prints are included in tariff subheading 49.11 B.

The question referred by the Finanzgericht Münster must therefore be answered as follows:

Artistic colour screen prints fall within tariff subheading 49.11 B of the Common Customs Tariff, even if personally signed and numbered by the artist and produced in only a limited edition.

( 1 ) Translated from the German.