Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. In the present preliminary-ruling proceedings, the Finanzgericht München asks the Court to interpret certain headings of the Common Customs Tariff (CCT) contained in Chapter 99 thereof, relating to works of art, collectors' pieces, and antiques.

2. The facts are as follows. Farfalla Flemming (the plaintiff in the main proceedings) asked the Hauptzollamt München-West (the Hauptzollamt) to release into free circulation, between 4 May 1981 and 30 April 1982, 13 postal consignments of what were described as paperweights from the United States of America, declaring them as original sculptures in glass/any material under Heading 99.03 of the CCT, which specifically covers original sculptures and statuary, in any material.

3. The Hauptzollamt, having conducted a tariff inspection of the articles described above, defined them as paperweights (ornaments) of glass, with inlaid work or ornaments of common glass.

4. Farfalla Flemming objected to that classification and, on dismissal of its objection, appealed to the Finanzgericht München, which decided to ask the Court of Justice for a preliminary ruling as to whether the articles in question, in which the representations are two-dimensional, are to be classified as paintings (Heading 99.01) or as sculptures (Heading 99.03), and whether those articles, and the similar ones containing three-dimensional representations, were of a commercial character within the meaning of Note 3 to Chapter 99 of the CCT.

5. The wording of the first question, concerning the scope of Headings 99.01 and 99.03, appears to reflect the fact that Note 3 to Chapter 99 refers only to Heading 99.03.

6. Therefore, I consider that in the present case the only choice to be made is between inclusion under Heading 99.03 and exclusion from Chapter 99, and that the possibility of inclusion under Heading 99.01 must be dismissed outright.

7. That said, it is still necessary to establish whether the articles in question, which are theoretically classifiable under Heading 99.03, which is concerned with sculptures, should not on the other hand be placed, by virtue of their commercial character, in the chapter relating to the material of which they are made (as has been stated, that view would be valid if the Court were to consider that any of the articles in question might be classified under Heading 99.01, which is concerned with paintings and drawings).

8. Let me say straight away that Farfalla Flemming's arguments seem to me to be defective in a number of respects.

9. The Commission, for its part, observes that the reason for which the CCT allows certain articles to be imported free of duty lies in the fact that, being very personal creations produced by artists, such works do not compete with each other from a financial point of view.

10. However, the view put forward by the Commission, which seems to accord more importance to legal certainty in the application of the CCT than to fairness, is also unsatisfactory from several points of view.

11. Whilst it is true that, as the Court has pointed out on several occasions, the artistic value, if any, of an article is determined by reference to subjective and indeterminate criteria, whereas the customs classification must be based on objective criteria adopted by the CCT for the purposes both of its effective operation and of legal certainty, it is nevertheless true that the same decisions of the Court show that it is possible to furnish the customs authorities with certain precise points of reference which may assist them in determining, where it is necessary to do so, whether an article is artistic in character, to the exclusion of subjective criteria.

12. It must then be borne in mind that the Court has consistently held that, for the purpose of interpreting the CCT, both the notes at the beginning of each chapter of it and the explanatory notes to the Customs Cooperation Council nomenclature (the CCC nomenclature) provide important means of ensuring uniform application of the tariff and as such may be regarded as useful aids for interpretation.

13. Applying those principles, the Court, in relation to two disputes concerning the importation of a motor car of some age and antique pistols and holsters, emphasized in particular that, whilst it is true that collectors' pieces are not normally used for their original purpose, it cannot be ruled out that their functional capacity may remain intact; and it also stated that collectors' pieces, within the meaning of Heading 99.05 of the CCT (which are also exempted from duty), are relatively rare articles which are not normally used for their original purpose, are the subject of special transactions outside the normal trade in similar utility articles and are of high value.

14. The line of reasoning followed by the Court in the judgments cited seems to me to be the one most likely to lead to a solution which fulfils the requirements both of legal certainty and of fairness.

15. In the light of the foregoing considerations, I propose that the court reply as follows to the questions submitted by the Finanzgericht München:

1 Original language: Italian.

2 Case 155/84 Onnasch v Hauptzollamt Blrlin-Packhof[1985] ECR 1449, paragraph 11

3 Case C-1/89 Raab [1989] ECR 4423, paragraph 25, and Case 23/77 Westfälischer Kunstverein v Hauptzollamt Münster [1977] ECR 1985, paragraph 3.

4 Case 200/84 Daiber v Hauplzollamt Reutlingen [1985] ECR 3363, paragraph 15, and Case 252/84 Collector Guns v Hauptzollamt Koblenz [1985] ECR 3387, paragraph 12.

5 Daiber and Collector Guns, supra.

6 Darber, supra, paragraph 20, and Collector Guns, supra, paragraph 17

7 Ibid.

8 Darber, paragraphs 22 to 24 and Collectors Guns, paragraphs 19 to 21, supra.