Volker Huber v Hauptzollamt Frankfurt am Main-Flughafen (291/87)

Contents

Judgment of the Court (Second Chamber)14 December 1988^noteIn Case 291/87REFERENCE to the Court under Article 177 of the EEC Treaty by the Hessische Finanzgericht (Finance Court, Hesse) for a preliminary ruling in the proceedings pending before that court betweenVolker Huber, ‘Edition und Galerie’, Offenbach am Main,andHauptzollamt (Principal Customs Office) Frankfurt am Main-FlughafenTHE COURT (Second Chamber)composed of: T. F. O'Higgins (President of Chamber), G. F. Mancini and F. A. Schockweiler, Judges,Advocate General: W. Van GervenRegistrar: B. Pastor, Administratorafter considering the observations submitted on behalf of— Volker Huber, the plaintiff in the main proceedings, by Werner Schwinn, of the Frankfurt Bar,— the Commission of the European Communities, by its Legal Adviser, Jörn Sack,having regard to the Report for the Hearing and further to the hearing of 8 November 1988,after hearing the Opinion of the Advocate General delivered at the sitting on 29 November 1988,gives the following

Judgment

1By an order of 24 August 1987, which was received at the Court on 28 September 1987, the Hessische Finanzgericht referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of tariff Heading 99.02, ‘Original lithographs’, of the Annex to Regulation No 950/68 of the Council of 28 June 1968 on the Common Customs Tariff (Journal officiel, L 172, p. 1^note ).

2The questions were raised in proceedings between Volker Huber (a firm) and the Hauptzollamt Frankfurt am Main-Flughafen on the tariff classification of 10000 lithographs of which 8400 and 4500 copies were printed from two hand-executed plates done by Bruno Bruni, an artist, which were not signed or numbered and were produced by a mechanical press using a reprinting process allowing multiple impressions to be made.

3Volker Huber applied to the Hauptzollamt Frankfurt am Main for customs clearance for those lithographs, declaring them to be ‘Original lithographs, Code No 9902 000 00’ which as such must be exempt from customs duties.

4The Hauptzollamt classified the goods under Code No 4911 930 90 (‘prints’) and levied customs duty of 3.1% on the ground that the lithographs were not signed and contained no particulars of the edition and print number and too many prints had been produced.

5Volker Huber challenged the decision before the Hessische Finanzgericht. In the course of the proceedings the court procured an expert's report which stated that the lithographs were not printed on a hand-operated press but were produced by a mechanical process in which the paper was automatically placed on the stone, the stone automatically coloured and the print produced by means of a platen press. In order to achieve multiple impressions, the artist's design was repeatedly copied by means of a reprinting process whereby the drawing was first transferred from special paper known as transfer or Berlin paper to the stone, then from the stone to the paper and so on until the desired number of impressions was achieved.

6The Hessische Finanzgericht took the view that the dispute raised a doubt as to the interpretation of the Community rules at issue, and therefore stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:(1) Are printed products to be regarded as “original lithographs” within the meaning of Heading 99.02 (Note 2 to Chapter 99 of the Common Customs Tariff) even if the impression was not produced directly by a hand-operated press but the paper to be printed was automatically placed on the stone, the stone automatically coloured and the impression mechanically produced by a platen press, although since the process was mechanical the German version of Note 2 to Chapter 99 would prevent such classification?(2) If so, are such impressions no longer to be regarded as originals if a drawing made by an artist on transfer paper (Berlin paper) for the purpose of multiple use by means of a reprinting process is transferred repeatedly from paper to stone, stone to paper and again to the stone until the desired number of impressions is obtained?(3) Does the question whether a lithograph is to be regarded as an original also depend, as indicated in the Explanatory Notes of the Customs Cooperation Council on Heading 99.02, on there being a relatively small number (generally not more than 60) of impressions of a drawing? In any event, does the fact that 8400 or 4500 impressions were produced prevent them from being classified as original lithographs?’

7Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far is as necessary for the reasoning of the Court.

The first question

8In its first question the national court seeks to know in substance whether, having regard to the wording of Note 2 to Chapter 99 of the Common Customs Tariff, proofs printed from a plate wholly executed by hand by the artist are to be regarded as original lithographs within the meaning of Heading 99.02 of the Common Customs Tariff even if they have been obtained by means of a mechanical printing process.

9Note 2 to Chapter 99 of the Common Customs Tariff provides that for the purposes of Heading 99.02 ‘original lithographs’ means ‘impressions produced directly, in black and white or in colour, from one or from several plates wholly executed by hand by the artist, irrespective of the process or of the material employed by him, but excluding any mechanical or photomechanical process’.

10The French version of that provision raises doubts as to whether the exclusion of any mechanical or photomechanical process refers to the making of the plate or the printing of the impressions.

11A literal interpretation of the majority of the language versions of that provision, however, leads to the conclusion that impressions produced directly from the plate with the help of a mechanical or photomechanical process may not be regarded as original lithographs. Futhermore, as regards the making of the design on the plate the note provides expressly that it must be wholly executed by hand by the artist, so that any further information concerning the exclusion of non-manual processes is superfluous.

12In that respect, Volker Huber observes that no photomechanical printing process exists. On the other hand, mechanical or photomechanical techniques for making the plate do exist.

13Volker Huber then notes that the printing of the impressions always requires a mechanical process, that is to say a press which is lifted to place the paper to be printed in contact with the stone or the plate. That much is also conceded by the Commission. Since the nineteenth century the press no longer needs to be moved by hand, but may be moved by a driving force, in particular when the weight of the stone prevents the use of muscular power alone.

14At the hearing, the Commission conceded that the techniques in use today are not radically different from those used in the past and that excluding mechanical processes is not realistic in view of the techniques of lithographic reproduction. Furthermore, utilization of a hand press must, strictly speaking, also be considered to be a mechanical processes. Consequently, the Commission is of the view that the purpose of the abovementioned note was to exclude automatic processes, a concept which it was not, however, in a position to define. The Commission concludes that in order to give meaning to Note 2 of Chapter 99 of the Common Customs Tariff it must be interpreted as prohibiting mass-production mechanical printing.

15Since an analysis of the wording of the note does not allow a definition of the concept of ‘original lithograph’ within the meaning of tariff Heading 99.02 which would be in accordance with actual practice in the matter, an interpretation of the provision in question which complies with the intention of the legislature must be deduced ex ratione legis.

16Heading 99.02 of the Common Customs Tariff provides for an exemption from customs duties for the goods referred to therein with the evident intention of giving favourable treatment to artistic production.

17Since a lithograph is always a reproduction of an original design executed by hand by the artist, its artistic nature can only be assessed in relation to the original. Once the design has been made by the artist on the stone or the plate without the assistance of a mechanical or photomechanical process it is irrelevant whether the technique used to transfer the design onto the surface to be printed is manual or mechanical since it has no influence on the artistic nature of the work.

18If Note 2 of Chapter 99 of the Common Customs Tariff is interpreted by reference to the objective of tariff Heading 99.02, the exclusion of mechanical or photomechanical processes can only relate to the making of the original plate from which the impressions are produced.

19Consequently, the answer to the first question must be that proofs printed from a plate wholly executed by hand by the artist are to be regarded as original lithographs for the purposes of Heading 99.02 of the Common Customs Tariff even if the printing has been made by means of a mechanical printing process.

The second question

20In its second question the national court seeks to know in substance whether the lithographs are to be regarded as having an original character for the purposes of Heading 99.02 of the Common Customs Tariff when the proofs are not printed directly from the plate made by the artist but by means of a reprinting process in which the original design, made on special paper called transfer or Berlin paper, is transferred several times first from the transfer paper to the stone, then from the stone to fresh transfer paper which in turn is transferred to a new stone to enable the print of a second series and so on, until the desired number of the multiple print is achieved.

21According to the Explanatory Notes on the Nomenclature of the Customs Cooperation Council (notes on Heading 99.02, p. 1774), the transfer technique, in which, instead of working directly on the stone, the artist first makes his drawing on special paper so as not to have to handle a heavy stone, does not make the lithographs produced from the stone onto which the design made on the transfer paper has been transposed cease to be original lithographs, although strictly speaking the printing is not done from a ‘plate wholly executed by hand by the artist’ within the meaning of Note 2 to Chapter 99 of the Common Customs Tariff.

22The question is whether the lithographs are still of an original nature when the drawing on the transfer paper is transferred onto several plates.

23In this respect a distinction must be drawn between two different situations.

24When the impressions are produced from several plates which have been directly treated from a single transfer paper made by hand by the artist, no consideration relating to the original or artistic nature of the work precludes those impressions from being regarded as original lithographs.

25However, it must be considered whether the reply must be the same if, as in the main proceedings, the lithographs have been made by means of a reprinting process whereby the later plates have been made from a new transfer paper obtained by reproduction from the first plate.

26In this respect the Commission takes the view that although a restrictive interpretation of the Explanatory Notes on the Nomenclature of the Customs Cooperation Council must lead to the conclusion that impressions produced, as in this case, by means of a reprinting process in order to obtain multiple impressions may not be regarded as original lithographs, none the less the technique must be permitted, by reason of the authorization in general terms of the transfer process contained in the Explanatory Notes, on condition only that the original drawing was made by the artist and that there is no essential qualitative difference in relation to an impression produced from the first transfer. However, the Commission states that this process may not lead to unlimited reproduction.

27It is apparent from the explanations given at the hearing that a process such as that referred to in the main proceedings has been largely used since the nineteenth century in order to allow a higher number of impressions to be printed simultaneously.

28Since, unlike paintings, lithographic works are never executed directly by the artist but are reproduced from an original drawing, the original nature of such a work can only be assessed by reference first to the artist's personal effort in the execution of the original and secondly to the printing process which must be executed from one or more plates on which the artist's original drawing has been transposed by the transfer technique.

29Once the principle that the artist's original drawing does not have to be executed directly onto the plate but may be transposed onto the plate from a special paper by application of the transfer technique has been admitted, there is no reason not to regard as original impressions produced from plates to which the drawing has been transferred by means of a new transfer paper obtained from the first plate.

30Consequently, the answer to the second question must be that proofs printed as a result of a reprinting process in which the original design made on special paper called transfer or Berlin paper is transferred several times, first from the transfer paper to the stone, then from the stone to fresh transfer paper which in turn is transferred to a new stone to enable the print of a second series and so on until the desired number of multiple impressions is achieved are to be regarded as original lithographs for the purposes of Heading 99.02 of the Common Customs Tariff.

The third question

31In its third question, the national court asks whether the number of proofs printed from a single original drawing has a bearing on whether the lithograph is to be regarded as original for the purposes of Heading 99.02 of the Common Customs Tariff.

32According to the Explanatory Notes on the Nomenclature of the Customs Cooperation Council on tariff Heading 99.02, the relatively small number of impressions (not generally exceeding 60) may be a useful guide in distinguishing the original article from a copy, fake or reproduction.

33It is apparent from that provision that the criterion of the number of impressions is only suggested to give an indication as to whether or not the work is original, in order to distinguish between lithographic production and reproduction by different processes. Although the number of proofs printed from a single original may have a direct bearing on the financial value of the lithograph it cannot of itself constitute a decisive criterion for the definition of the original nature of a lithograph within the meaning of Heading 99.02 of the Common Customs Tariff.

34Consequently, the answer to the third question must be that although the number of proofs printed from a single original design may be evidence of the non-original nature of the work, it cannot in itself constitute a decisive criterion for the definition of an original lithograph for the purposes of Heading 99.02 of the Common Customs Tariff.

Costs

35The 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 proceedings pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,THE COURT (Second Chamber),in answer to the questions submitted to it by the Hessische Finanzgericht, by order of 24 August 1987, hereby rules:

(1).Proofs printed from a plate wholly executed by hand by the artist are to be regarded as original lithographs for the purposes of Heading 99.02 of the Common Customs Tariff even if the printing has been made by means of a mechanical printing process.

(2).Proofs printed as a result of a reprinting process in which the original design made on special paper called transfer or Berlin paper is transferred several times first from the transfer paper onto the stone, then from the stone to fresh transfer paper which in turn is transferred onto a new stone to enable the print of a second series and so on until the desired number of the multiple print is achieved are to be regarded as original lithographs for the purposes of Heading 99.02 of the Common Customs Tariff.

(3).Although the number of proofs printed from a single original design may be evidence of the non-original nature of the work, it cannot in itself constitute a decisive criterion for the definition of an original lithograph for the purposes of Heading 99.02 of the Common Customs Tariff.

Delivered in open court in Luxembourg on 14 December 1988.