JUDGMENT OF 27. 10. 1977 - CASE 23/77 KUNSTVEREIN v HAUPTZOLLAMT MUNSTER
In Case 23/77 Reference to the Court under Article 177 of the EEC Treaty by the IVth Senate of the Finanzgericht Münster, for a preliminary ruling in the action pending before that court between
THE COURT (Second Chamber) composed of: P. Pescatore, Acting President of the Second Chamber, Lord Mackenzie Stuart and A. Touffait, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and issues
I — Facts and procedure
II — Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC
A — Preliminary general observation
B — The distinction between tariff subheading 49.11 B and tariff heading 99.02
C — Conclusion
III — Oral procedure
Decision
Costs
I —. Facts and procedure
1. At the request of the Westfälischer Kunstverein (The Westphalian Association for the Promotion of the Arts), the plaintiff in the main action, the customs office, Münster, being one of the customs offices coming under the Hauptzollamt (Principal Customs Office) Münster, the defendant in the main action, cleared into free circulation on 14 March 1973 150 colour screen prints (colour serigraphs) imported from the United States and numbered and signed by the American artist, John Salt
2. After the customs office, Münster, had classified the screen prints under tariff subheading 49.11 B (Other printed matter, including printed pictures and photographs') of the Common Customs Tariff, it levied, by means of notice of assessment, customs duty at the rate of 9 % and import turnover tax at the rate of 11 %.
3. The plaintiff considered that the articles in dispute fell within tariff heading 99.02 (Original engravings, prints and lithographs) of the Common Customs Tariff and could therefore be imported without payment of customs duties and at a rate of import turnover tax of 5·5 %.
4. Having unsuccessfully entered an objection to the classification decision, the applicant lodged an application with the Finanzgericht (Finance Court) Munster with a view to obtaining the classification of the screen prints under tariff heading 99.02.
5. The Finanzgericht Münster considered that the settlement of the action depended on the interpretation of the provisions of the Common Customs Tariff and, by order of 19 January 1977, stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:
6. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without holding any preparatory inquiry.
7. Written observations were submitted by the Commission of the European Communities in accordance with Article 20 of the Protocol on the Statute of the Court of Justice.
II —. Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC
A —. Preliminary general observation
B —. The distinction between tariff subheading 49.11 B and tariff heading 99.02
C —. Conclusion
III —. Oral procedure
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:
2. That question arose within the context of an action concerning the tariff classification of ISO 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.
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).
4. The file shows that screen printing is a printing process which is at least partly mechanical or photomechanical in nature.
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.
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.
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.
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.
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.
10. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.
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: