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 :
' ON 14 MARCH 1973 DID A LIMITED EDITION OF NOT MORE THAN 150 ARTISTIC COLOUR SCREEN PRINTS ( COLOUR SERIGRAPHS ) NUMBERED AND SIGNED PERSONALLY BY THE ARTIST FALL WITHIN TARIFF SUBHEADING 49.11 B OR TARIFF HEADING 99.02 OF THE COMMON CUSTOMS TARIFF?
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2 THAT QUESTION AROSE WITHIN THE CONTEXT OF AN ACTION CONCERNING THE TARIFF CLASSIFICATION OF 150 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 .
THE CUSTOMS AUTHORITIES CLASSIFIED THOSE ARTICLES UNDER SUBHEADING 49.11 B ( ' OTHER PRINTED MATTER INCLUDING PRINTED PICTURES AND PHOTOGRAPHS : . . . B . OTHER ' ) OF THE COMMON CUSTOM TARIFF .
THE IMPORTER CONTESTS THIS CLASSIFICATION AND MAINTAINS THAT THE ARTICLES IN DISPUTE FALL WITHIN TARIFF HEADING 99.02 ( ' ORIGINAL ENGRAVINGS , PRINTS AND LITHOGRAPHS ' ).
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 ).
THAT DISTINCTION CANNOT BE BASED ON THE POSSIBLE ARTISTIC MERIT OF THE AFOREMENTIONED ARTICLES , SOMETHING WHICH IS DEFINED ESSENTIALLY BY REFERENCE TO SUBJECTIVE AND INDETERMINATE CRITERIA , BUT MUST BE FOUNDED ON THE OBJECTIVE CRITERIA ADOPTED BY THE COMMON CUSTOMS TARIFF FOR THE PURPOSES BOTH OF ITS EFFECTIVE OPERATION AND OF LEGAL CERTAINTY .
4 THE FILE SHOWS THAT SCREEN PRINTING IS A PRINTING PROCESS WHICH IS AT LEAST PARTLY MECHANICAL OR PHOTOMECHANICAL IN NATURE .
ALTHOUGH THE PROCESS IN QUESTION ENABLES AN UNLIMITED NUMBER OF REPRODUCTIONS TO BE OBTAINED , THE SO-CALLED ' ARTISTIC ' SCREEN PRINT IS NORMALLY PRODUCED IN LIMITED EDITIONS OF A FEW HUNDRED COPIES AT THE MOST .
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 .
THAT FINDING IS CONFIRMED BY THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE IN THE GENERAL EXPLANATORY NOTE TO CHAPTER 49 , WHICH STATES THAT :
' FOR THE PURPOSE OF THIS CHAPTER , THE TERM ' PRINTED ' INCLUDES NOT ONLY REPRODUCTION BY THE SEVERAL METHODS OF ORDINARY HAND AND MECHANICAL PRINTING ( LITHOGRAPHY , OFF-SET PRINTING , HELIOGRAPHY , PHOTOGRAVURE , ETC .), BUT ALSO BY ENGRAVING , REPRODUCTION BY DUPLICATING MACHINES , EMBOSSING , PHOTOGRAPHY , ETC ., IRRESPECTIVE OF THE FORM OF THE CHARACTERS IN WHICH THE PRINTING IS EXECUTED ( E . G ., LETTERS OF ANY ALPHABET , FIGURES , SHORTHAND SIGNS , MORSE OR OTHER CODE SYMBOLS , BRAILLE CHARACTERS , MUSICAL NOTATIONS , PICTURES AND DIAGRAMS ) ' .
AS ARTISTIC SCREEN PRINTS ARE PRODUCED BY A PRINTING PROCESS IT MUST BE POSSIBLE FOR THEM TO FALL WITHIN SUBHEADING 49.11 B .
FOR THAT REASON IT IS NOT POSSIBLE TO APPLY GENERAL RULE NO 4 FOR THE INTERPRETATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF , ACCORDING TO WHICH GOODS NOT FALLING WITHIN ANY HEADING OF THE TARIFF SHALL BE CLASSIFIED UNDER THE HEADING APPROPRIATE TO THE GOODS TO WHICH THEY ARE MOST ASKIN .
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 ' .
IT IS THEREFORE NECESSARY TO CONSIDER WHETHER THERE ARE NOT ANY PARTICULAR RULES WHICH REQUIRE ARTISTIC SCREEN PRINTS TO BE CLASSIFIED UNDER A SPECIAL HEADING .
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 .
AS HEADING 99.02 CONSTITUTES A SPECIFIC HEADING AS COMPARED TO SUBHEADING 49.11 B , IT IS NECESSARY TO CONSIDER WHETHER ARTISTIC SCREEN PRINTS ARE GOVERNED BY HEADING 99.02 , IN OTHER WORDS , WHETHER THEY MAY BE REGARDED AS ' ORIGINAL ENGRAVINGS , PRINTS AND LITHOGRAPHS ' , WHICH ARE DEFINED BY NOTE 2 TO CHAPTER 99 AS :
' IMPRESSIONS PRODUCED DIRECTLY , IN BLACK AND WHITE OR IN COLOUR , OF ONE OR OF SEVERAL PLATES WHOLLY EXECUTED BY HAND BY THE ARTIST , IRRESPECTIVE OF THE PROCESS OR OF THE MATERIAL EMPLOYED BY HIM , BUT NOT INCLUDING ANY MECHANICAL OR PHOTOMECHANICAL PROCESS ' .
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 .
AS THE PROCESSES USED IN THE PRODUCTION OF ARTISTIC SCREEN PRINTS ARE , AS HAS PREVIOUSLY BEEN STATED , PARTLY MECHANICAL OR PHOTOMECHANICAL IN NATURE , SUCH PRINTS ARE NOT PRODUCED ' OF ONE OR OF SEVERAL PLATES WHOLLY EXECUTED BY HAND BY THE ARTIST ' .
SINCE THAT FACT IS IN ITSELF SUFFICIENT TO RULE OUT THE CLASSIFICATION OF THE ARTICLES IN DISPUTE UNDER HEADING 99.02 AND THEREFORE REQUIRES THEM TO BE CLASSIFIED UNDER SUBHEADING 49.11 B , IT IS UNNECESSARY TO CONSIDER WHETHER THEY SATISFY THE CRITERION OF ORIGINALITY .
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 .
COSTS
10 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 ACTION 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 MUNSTER BY ORDER OF 19 JANUARY 1977 , HEREBY RULES :
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 IF ONLY A LIMITED EDITION IS PRODUCED .
