Opinion of Mr Advocate General Van Gerven

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.

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 66783.30 and proposed to sell them in her gallery for a unit price of approximately DM 4000.

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, 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, 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.

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.

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.

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.

Conclusion

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

1 Original language: Dutch.

2 The numbering refers io 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).

3 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).

4 Judgment o( 15 May 1985 in Cast 155/84 Onnasch v Hauplzollamt Berlin-Packhof [1985] ECR 1449, paragraph 11.

5 Judgment of 14 December 1988 in Case 291/87 Volker Huber v Hauptzollamt Frankfurt am Mam Flughafen [1988] ECR 6449. paragraph 16.

6 Judgment of 27 October 1977 in Case 23/77 Westfälischer Kunstverein v Hauptzollamt Münster[1977] ECR 1985.