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Cite as: [1985] EUECJ R-155/84

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61984J0155
Judgment of the Court (Second Chamber) of 15 May 1985.
Reinhard Onnasch v Hauptzollamt Berlin - Packhof.
Reference for a preliminary ruling: Finanzgericht Berlin - Germany.
Common customs tariff - Sculptures and statuary.
Case 155/84.
European Court reports 1985 Page 01449

COMMON CUSTOMS TARIFF - TARIFF HEADINGS - CLASSIFICATION OF A WORK OF ART - ' ORIGINAL SCULPTURES AND STATUARY , IN ANY MATERIAL ' WITHIN THE MEANING OF TARIFF HEADING NO 99.03

THE EXPRESSION ' ORIGINAL SCULPTURES AND STATUARY , IN ANY MATERIAL ' IN HEADING NO 99.03 OF THE COMMON CUSTOMS TARIFF MUST BE UNDERSTOOD TO REFER TO ALL THREE-DIMENSIONAL ARTISTIC PRODUCTIONS , IRRESPECTIVE OF THE TECHNIQUES AND MATERIALS USED . IN CONSEQUENCE A WORK OF ART CONSISTING OF A WALL RELIEF MADE OF CARDBOARD AND EXPANDED POLYSTYRENE , SPRAYED WITH BLACK PAINT AND OIL AND ATTACHED TO A WOODEN PANEL BY MEANS OF WIRE AND SYNTHETIC RESIN , MUST BE REGARDED AS A WORK OF SCULPTURE OR STATUARY WITHIN THE MEANING OF THAT TARIFF HEADING .

IN CASE 155/84
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT ( FINANCE COURT ) BERLIN FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
REINHARD ONNASCH , AN ART DEALER , BERLIN ,
AND
HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) BERLIN-PACKHOF

ON THE INTERPRETATION OF HEADINGS NOS 99.03 AND 39.07 OF THE COMMON CUSTOMS TARIFF ,

1 BY AN ORDER OF 20 MARCH 1984 , WHICH WAS RECEIVED AT THE COURT ON 19 JUNE 1984 , THE FINANZGERICHT BERLIN REFERRED TO THE COURT FOR A PRELIMINARY RULING PURSUANT TO ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF HEADINGS NOS 99.03 AND 39.07 OF THE COMMON CUSTOMS TARIFF FOR THE PURPOSES OF THE CLASSIFICATION OF A WORK OF ART CONSISTING OF A WALL RELIEF MADE OF CARDBOARD AND SYNTHETIC MATERIALS .

2 AS IS STATED IN THE ORDER FOR REFERENCE , THE ARTICLE AT ISSUE IS A THREE-DIMENSIONAL WORK BY AN AMERICAN ARTIST ENTITLED ' MODL . MOTOR SECTION - GIANT SOFT FAN ' , WHICH IS COMPOSED OF CARDBOARD , POLYSTYRENE , BLACK PAINT , OIL , WIRE AND RESIN ATTACHED TO A WOODEN PANEL . THE WORK WAS IMPORTED BY AN ART DEALER RESIDING IN BERLIN , WHO DECLARED ITS VALUE FOR CUSTOMS PURPOSES AS DM 7 500 UNDER A CODE NUMBER CORRESPONDING TO TARIFF HEADING NO 99.03 , COVERING ' ORIGINAL SCULPTURES AND STATUARY , IN ANY MATERIAL ' , WHICH ARE EXEMPT FROM CUSTOMS DUTIES .

3 ON 4 NOVEMBER 1982 THE HAUPTZOLLAMT BERLIN-PACKHOF ISSUED A TARIFF NOTIFICATION ( ZOLLBESCHEID ) CLASSIFYING THE WORK UNDER A CODE NUMBER CORRESPONDING TO TARIFF HEADING NO 39.07 , FOR ' ARTICLES OF MATERIALS OF THE KINDS DESCRIBED IN HEADINGS NOS 39.01 TO 39.06 ' , WHICH COMPRISE A VARIETY OF ARTIFICIAL RESINS AND PLASTIC MATERIALS ; IT THEREFORE APPLIED A RATE OF DUTY OF 14.2% OF THE DECLARED VALUE FOR CUSTOMS PURPOSES .

4 THE IMPORTER CHALLENGED THAT TARIFF CLASSIFICATION , CONTENDING THAT THE HEADINGS IN CHAPTER 99 OF THE COMMON CUSTOMS TARIFF SHOULD BE GIVEN A LIBERAL INTERPRETATION SO AS TO INCLUDE ARTISTIC CREATIONS PRODUCED BY MODERN TECHNIQUES WHICH WERE NOT YET IN USE AT THE TIME WHEN THE TARIFF CATEGORIES WERE LAID DOWN .

5 THE HAUPTZOLLAMT SOUGHT THE OPINION OF THE ZOLLTECHNISCHE PRUFUNGS- UND LEHRANSTALT ( CUSTOMS LABORATORY AND TRAINING COLLEGE ) OF THE OBERFINANZDIREKTION ( PRINCIPAL REVENUE OFFICE ) BERLIN , AND ON 8 MARCH 1983 DELIVERED A DECISION ON THE OBJECTION , CONFIRMING THE FIRST DECISION . THE HAUPTZOLLAMT TAKES THE VIEW THAT THE ONLY ARTICLES WHICH MAY BE CLASSIFIED AS ORIGINAL SCULPTURES ARE OBJECTS HAVING SCULPTURAL FORM MADE BY TRADITIONAL TECHNIQUES , THAT IS , WORKED FROM HARD MATERIALS OR MOULDED IN SOFT MATERIALS WHICH ARE SUBSEQUENTLY HARDENED . OTHER WORKS OF ART , PARTICULARLY CONTEMPORARY WORKS , SUCH AS TEXTILE HANGINGS , COLLAGES , ASSEMBLAGES , AND SO ON , CANNOT BE CLASSIFIED UNDER CHAPTER 99 BECAUSE OF THE TECHNIQUES OR MEDIA USED IN MAKING THEM AND SHOULD BE CLASSIFIED UNDER THE CHAPTER FOR THE RELEVANT MATERIALS . IN THIS INSTANCE THE NATURE OF THE IMPORTED ARTICLE IS CLEARLY ESTABLISHED BY THE PLASTIC MATERIAL WITH WHICH IT WAS MADE , AND IT MUST CONSEQUENTLY BE GIVEN A TARIFF CLASSIFICATION CORRESPONDING TO THE MATERIAL CHARACTERIZING THE ARTICLE AS A WHOLE , NAMELY PLASTIC MATERIAL FALLING WITHIN SUBHEADING 39.07 B V ( D ) ( ' ARTICLES OF MATERIALS OF THE KINDS DESCRIBED IN HEADINGS NOS 39.01 TO 39.06 : B . OTHER : V . OF OTHER MATERIALS : ( D ) OTHER ' ).

6 IN ORDER TO RESOLVE THAT DISPUTE , THE FINANZGERICHT REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :
' IS A WORK RECOGNIZED BY THE CUSTOMS AUTHORITY AS BEING A WORK OF ART , CONSISTING OF A WALL RELIEF MADE OF CARDBOARD AND EXPANDED POLYSTYRENE , SPRAYED WITH BLACK PAINT AND OIL AND ATTACHED TO A WOODEN PANEL BY MEANS OF WIRE AND SYNTHETIC RESIN , TO BE CLASSIFIED AS ' ' ORIGINAL SCULPTURE OR STATUARY , IN ANY MATERIAL ' ' UNDER HEADING NO 99.03 OF THE COMMON CUSTOMS TARIFF OR , BECAUSE OF THE MATERIALS OF WHICH IT IS COMPOSED , UNDER HEADING NO 39.07?
'
7 THE COMMISSION ALONE HAS SUBMITTED OBSERVATIONS TO THE COURT . IT TAKES THE VIEW THAT IN ORDER TO INTERPRET CHAPTER 99 OF THE COMMON CUSTOMS TARIFF AND RESOLVE THE PROBLEMS OF DELIMITING OTHER TARIFF HEADINGS , IT IS NECESSARY TO HAVE REGARD TO THE PARTICULAR STRUCTURE OF CHAPTER 99 , WHICH , ALTHOUGH ENTITLED ' WORKS OF ART , COLLECTORS ' PIECES , AND ANTIQUES ' , DOES NOT CONTAIN A GENERAL OR RESIDUAL HEADING . IT IS MADE UP OF A NUMBER OF INDIVIDUAL HEADINGS , EACH OF WHICH DEFINES PARTICULAR KINDS OF WORKS OF ART . BECAUSE OF ITS SPECIAL STRUCTURE THE CHAPTER IS PRECEDED BY THE FOLLOWING NOTE TO FACILITATE THE DELIMITATION OF CHAPTER 99 FROM OTHER CHAPTERS OF THE COMMON CUSTOMS TARIFF : ' 4 ( A ) SUBJECT TO NOTES 1 TO 3 ABOVE ARTICLES FALLING WITHIN HEADINGS OF THIS CHAPTER ARE TO BE CLASSIFIED IN WHICHEVER OF THOSE HEADINGS IS APPROPRIATE AND NOT IN ANY OTHER HEADING OF THE TARIFF ' . THE COMMISSION ARGUES THAT , IN THE ABSENCE OF A GENERAL CATEGORY AND HAVING REGARD TO THAT NOTE , IN CASES OF DOUBT WORKS OF ART MUST BE CLASSIFIED IN THE APPROPRIATE HEADINGS OF CHAPTER 99 RATHER THAN OTHER HEADINGS OF THE COMMON CUSTOMS TARIFF . ACCORDINGLY , IN SO FAR AS ORIGINAL ARTISTIC PRODUCTIONS ARE CONCERNED , THE COMMISSION ADVOCATES A LIBERAL INTERPRETATION OF THE HEADINGS OF CHAPTER 99 , CAPABLE OF EMBRACING NEW ARTISTIC TECHNIQUES AS WELL . THE COMMISSION FINDS FURTHER SUPPORT FOR THAT VIEW IN THE FACT THAT TARIFF HEADING NO 99.03 REFERS TO ORIGINAL SCULPTURES AND STATUARY ' IN ANY MATERIAL ' . FINALLY , THE COMMISSION DRAWS ATTENTION TO THE FACT THAT THE POSITION ADOPTED BY THE HAUPTZOLLAMT WOULD LEAD TO THE UNFAIR RESULT THAT AN ARTICLE DECLARED AS A WORK OF ART WOULD HAVE CUSTOMS DUTY LEVIED ON ITS FULL VALUE AT THE RATE LAID DOWN FOR THE MATERIAL USED EVEN WHEN THE VALUE OF THE MATERIAL WAS INSIGNIFICANT BY COMPARISON WITH THE ARTISTIC VALUE OF THE OBJECT .

8 THE COURT CONSIDERS THAT THE VIEW ADOPTED BY THE COMMISSION IS FULLY JUSTIFIED .

9 IN THE FIRST PLACE IT SHOULD BE STRESSED THAT THE PARTIES ARE AGREED THAT THE ARTICLE AT ISSUE IS AN ORIGINAL WORK OF ART . THE DISPUTE SOLELY CONCERNS THE QUESTION WHETHER THE CHARACTERISTICS OF THE WORK ENABLE IT TO BE INCLUDED WITHIN THE CLASSIFICATION ' SCULPTURES AND STATUARY ' . THAT EXPRESSION IS REPRODUCED WITH SLIGHT DIFFERENCES OF SEMANTIC NUANCE IN THE VARIOUS LANGUAGE VERSIONS OF THE TARIFF , THE GERMAN VERSION ( ' BILDHAUEREI ' ) BEING THE NARROWEST OF ALL . THE EXPRESSION MUST BE UNDERSTOOD TO REFER TO ALL THREE-DIMENSIONAL ARTISTIC PRODUCTIONS , IRRESPECTIVE OF THE TECHNIQUES AND MATERIALS USED ; THE LATTER CHARACTERISTIC IS , MOREOVER , EXPRESSLY MENTIONED IN HEADING NO 99.03 , WHICH REFERS TO WORKS ' IN ANY MATERIAL ' .

10 THIS INTERPRETATION IS IN ACCORDANCE WITH NOTE 4 AT THE BEGINNING OF CHAPTER 99 OF THE TARIFF , UNDER WHICH , WHERE THERE IS DOUBT AS TO THE CLASSIFICATION OF AN ARTICLE , PREFERENCE SHOULD BE GIVEN TO CLASSIFICATION IN ONE OF THE HEADINGS OF THE CHAPTER COVERING WORKS OF ART , COLLECTORS ' PIECES , AND ANTIQUES .

11 SECONDLY , THE COURT CAN ONLY AGREE WITH THE COMMISSION ' S OBSERVATION THAT 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 .

12 FOR THOSE REASONS , IT MUST BE STATED IN ANSWER TO THE QUESTION SUBMITTED BY THE NATIONAL COURT THAT A WORK RECOGNIZED BY THE CUSTOMS AUTHORITY AS BEING A WORK OF ART , CONSISTING OF A WALL RELIEF MADE OF CARDBOARD AND EXPANDED POLYSTYRENE , SPRAYED WITH BLACK PAINT AND OIL AND ATTACHED TO A WOODEN PANEL BY MEANS OF WIRE AND SYNTHETIC RESIN , MUST BE CLASSIFIED UNDER ' ORIGINAL SCULPTURES AND STATUARY , IN ANY MATERIAL ' IN HEADING NO 99.03 OF THE COMMON CUSTOMS TARIFF .

COSTS
13 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,
THE COURT ( SECOND CHAMBER ),
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE FINANZGERICHT BERLIN , BY ORDER OF 20 MARCH 1984 , HEREBY RULES :
A WORK RECOGNIZED BY THE CUSTOMS AUTHORITY AS BEING A WORK OF ART , CONSISTING OF A WALL RELIEF MADE OF CARDBOARD AND EXPANDED POLYSTYRENE , SPRAYED WITH BLACK PAINT AND OIL AND ATTACHED TO A WOODEN PANEL BY MEANS OF WIRE AND SYNTHETIC RESIN , MUST BE CLASSIFIED UNDER ' ORIGINAL SCULPTURES AND STATUARY , IN ANY MATERIAL ' IN HEADING NO 99.03 OF THE COMMON CUSTOMS TARIFF .