Flavin and Viola light works ruled “not art” “Absurd” decision by European Commission means VAT of 20%, rather than 5%

© Photo: REUTERS/Paul Hackett)
Vía Arquitectura Viva y The Art Newspaper

By Georgina Adam | From issue 219, December 2010
Published online 16 Dec 10 (market)

Dan Flavin at the Hayward Gallery in London: to European officials this has no more merit than your kitchen ceiling (Photo: REUTERS/Paul Hackett)

Dan Flavin at the Hayward Gallery in London: to European officials this has no more merit than your kitchen ceiling (Photo: REUTERS/Paul Hackett)

LONDON. In an astonishing move, the European Com­mis­sion (EC) has reversed a decision made in a UK tax tribunal, and refused to classify works by Dan Flavin and Bill Viola as “art”. This means that UK galleries and auction houses will have to pay full VAT (value added tax, which goes up to 20% next year) and customs dues on video and light works, when they are imported from outside the EU. The decision is binding on all member states.

The new classification goes against a victory won in a UK tribunal in 2008 (The Art Newspaper, February 2009, p47). A legal battle began after the Haunch of Venison gallery imported six disassembled video installations by Viola into the UK from the US in 2006, and sought to import a light sculpture by Flavin. Declared as “sculpture”, they would only have been liable for 5% VAT.

But customs rejected this, and charged Haunch of Venison £36,000 duty. In 2008 Haunch appealed, and won: the VAT and Duties Tribunal ruled that such works were indeed “art” and only liable to 5% VAT.

Now the EC has overturned this decision. In its ruling a Flavin work is described as having “the characteristics of lighting fittings…and is therefore to be classified…as wall lighting fittings”. As for Viola, the video-sound installation, says the document, cannot be classified as a sculpture “as it is not the installation that constitutes a ‘work of art’ but the result of the operations (the light effect) carried out by it”.

Art lawyer Pierre Valentin, who at the time represented Haunch of Venison (he no longer does so) commented: “The reasons given by the European Commission for classifying works by Bill Viola and Dan Flavin as, eg ‘projectors’ and ‘wall light fittings’, are extraordinary. To suggest, for example, that a work by Dan Flavin is a work of art only when it is switched on, is comical. The national courts of two member states (the UK and the Netherlands) have considered the classification of video and light installations and both have concurred that they should be classified as art under Chapter 97 of the Common Customs Tariff. One is entitled to ask if the Commission has made a judicious use of its powers when overruling these judicial decisions. The reasons given in the regulation in support of the classification are absurd, and the regulation conflicts with the jurisprudence of the European Court of Justice.”