C-145/18 Regards Photographiques

JUDGMENT OF THE COURT (Second Chamber)

5 September 2019 ( *1 )

(Reference for a preliminary ruling — Common system of value added tax (VAT) — Directive 2006/112/EC — Article 103(2)(a) — Article 311(1), point 2 — Annex IX, Part A, point 7 — Reduced rate of VAT — Works of art — Concept — Photographs taken by the artist, printed by him or under his supervision, signed and numbered and limited to 30 copies — National legislation restricting the application of the reduced rate of VAT only to photographs that have artistic character)

In Case C‑145/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, France), made by decision of 20 February 2018, received at the Court on 23 February 2018, in the proceedings

Regards Photographiques SARL

v

Ministre de l’Action et des Comptes publics,

THE COURT (Second Chamber),

composed of A. Arabadjiev, President of the Chamber, T. von Danwitz (Rapporteur) and C. Vajda, Judges,

Advocate General: M. Szpunar,

Registrar: V. Giacobbo-Peyronnel, Administrator,

having regard to the written procedure and further to the hearing on 21 November 2018,

after considering the observations submitted on behalf of:

Regards Photographiques SARL, by E. Piwnica, lawyer,

the French Government, by A. Alidière, E. de Moustier and D. Colas, acting as Agents,

the European Commission, by N. Gossement and J. Jokubauskaitė, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 7 March 2019,

gives the following

Judgment

Legal context and the dispute

1This request for a preliminary ruling concerns the interpretation of Articles 103 and 311 of, and point 7 of Part A of Annex IX to, Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1; ‘the VAT Directive’).

2The request has been made in proceedings between Regards Photographiques SARL and the ministre de l’Action et des Comptes publics (Minister for the Public Sector and Public Accounts, France; ‘the tax authority’) concerning the latter’s refusal to apply the reduced rate of value added tax (VAT) to the supply of portrait photographs and wedding photographs made during the period from 1 February 2009 to 31 January 2012.

Legal context

European Union law

3Recital 51 of the VAT Directive states:

‘It is appropriate to adopt a Community taxation system to be applied to second-hand goods, works of art, antiques and collectors’ items, with a view to preventing double taxation and the distortion of competition as between taxable persons.’

4Article 96 of that directive provides:

‘Member States shall apply a standard rate of VAT, which shall be fixed by each Member State as a percentage of the taxable amount and which shall be the same for the supply of goods and for the supply of services.’

5Article 98(1) and (2) of the VAT Directive provides:

‘1. Member States may apply either one or two reduced rates.

2. The reduced rates shall apply only to supplies of goods or services in the categories set out in Annex III.

…’

6Under Article 99(1) of that directive:

‘The reduced rates shall be fixed as a percentage of the taxable amount, which may not be less than 5%.’

7Article 103 of the VAT Directive reads as follows:

‘1. Member States may provide that the reduced rate, or one of the reduced rates, which they apply in accordance with Articles 98 and 99 is also to apply to the importation of works of art, collectors’ items and antiques, as defined in points (2), … of Article 311(1).

2. If Member States avail themselves of the option under paragraph 1, they may also apply the reduced rate to the following transactions:

the supply of works of art, by their creator or his successors in title;

…’

8Article 311(1) and (2) of that directive provides:

‘1. For the purposes of this Chapter, and without prejudice to other Community provisions, the following definitions shall apply:

…

“works of art” means the objects listed in Annex IX, Part A;

…

2. Member States need not regard as works of art the objects listed in [point 7] of Annex IX, Part A.’

9Point 7 of Part A of Annex IX to that directive is worded as follows:

‘photographs taken by the artist, printed by him or under his supervision, signed and numbered and limited to 30 copies, all sizes and mounts included.’

French law

10Article 278(f) of the Code général des impôts (General Tax Code), in the version applicable up to 1 January 2012 (‘the CGI’), provided:

‘[VAT] shall be levied at the rate of 5.5%:

…

on the supply of works of art, by their creator or his successors in title;

…’

11As from 1 January 2012 the rate laid down in that provision was increased to 7%.

12Under point 7 of Article 98 A of Annex II to the CGI, the following photographs are to be regarded as works of art:

‘photographs taken by the artist, printed by him or under his supervision, signed and numbered and limited to 30 copies, all sizes and mounts included …’

13The Ministerial Directive of the Directorate-General for Taxation of 25 June 2003 entitled ‘VAT. Reduced rate of 5.5% applicable to works of art. Situation of art photographs.’, published in the Bulletin officiel des impôts No 115 of 2 July 2003, as applicable at the time of the material facts of the case in the main proceedings (‘the Ministerial Directive of 25 June 2003’), was intended to provide clarification regarding the conditions for applying the reduced rate of VAT laid down in Article 278(f) of the CGI in respect of art photographs. The Ministerial Directive provided:

‘…

I. Criteria for art photographs:

1. Only photographs demonstrating clear creative intent on the part of their creator may be regarded as works of art eligible for the reduced rate of VAT.

That is the case where, through subject choice, setting, features of the shot or any other distinctive characteristic of the photographer’s work, such as framing quality, composition, exposure, lighting, contrast, colours and relief, play of light and volume, lens and film selection or the specific conditions in which the negative is processed, he produces a work which goes beyond the simple mechanical fixation of the memory of an event, trip or people and which is thus of interest to any audience.

II. Conditions for application

1. In the light of the above, identity photographs, school photographs and group photographs are not eligible for the reduced rate.

2. Photographs where interest depends primarily on the status of the individual or the nature of the object shown are not, in general, regarded as art photographs. That is the case, for example, with photographs depicting family or religious events (weddings, communions etc.).

3. That being said, for photographs of any kind other than those mentioned in II-1, the creative intent of the creator as evidenced by the criteria already set out and the interest to any audience may be reinforced by the following indicators:

(a) The photographer proves that his works have been exhibited in cultural institutions (regional, national or international), museological institutions (museums, temporary or permanent exhibitions) or commercial institutions (trade fairs, shows, galleries etc.) or that they have been presented in specialist publications.

…

(b) The use of specific equipment for both taking and developing the photograph.

…’

The dispute in the main proceedings and the questions referred for a preliminary ruling

14The business activity of Regards Photographiques is the creation and sale of photographs.

15Following an audit of accounts, the tax authority called into question the reduced rate of VAT that the company had applied to the supply of certain photographs, namely portraits and wedding photographs. Because it considered that those photographs should be subject to the standard rate of VAT, the tax authority imposed on Regards Photographiques additional assessments of VAT for the period from 1 February 2009 to 31 January 2012.

16The action brought by Regards Photographiques against those additional assessments of VAT was dismissed both by the tribunal administratif d’Orléans (Administrative Court, Orléans, France) and by the cour administrative d’appel de Nantes (Administrative Court of Appeal, Nantes, France). In its judgment of 21 April 2016, the latter court found that the photographs at issue in the main proceedings could not be eligible for the reduced rate of VAT, since they lacked originality and did not demonstrate creative intent, with the result that they were not to be regarded as photographs taken by an artist.

17Regards Photographiques brought an action before the referring court, the Conseil d’État (Council of State, France) seeking to have that judgment set aside. Regards Photographiques submits that, in order to be eligible for the reduced rate of VAT, it is sufficient that, before the creator of the photographs in question or his successors in title have supplied those photographs, he or his successors in title supervised the printing of them and signed and numbered them, up to a limit of 30 copies.

18In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

Must the provisions of Articles 103 and 311 of [the VAT Directive] and point 7 of Part A in Annex IX thereto, be interpreted as meaning that they require only that the photographs are taken by their photographer, printed by him or under his supervision, signed and numbered up to a maximum of 30 copies, all sizes and mounts included, in order to be able to benefit from the reduced rate of VAT?

If the answer to the first question is yes, are Member States nevertheless permitted to exclude from the benefit of the reduced rate of VAT photographs that are not, in addition, artistic in character?

If the answer to the first question is no, what other conditions must the photographs satisfy in order to benefit from the reduced rate of VAT? In particular, must they show an artistic character?

Must those conditions be interpreted uniformly within the European Union, or do they refer to the law of each Member State, in particular in the field of intellectual property?’

Consideration of the questions referred

The first and third questions

19By its first and third questions, which it is appropriate to examine together, the referring court asks the Court, in essence, what conditions must be satisfied by photographs in order for them to be regarded as works of art eligible for the reduced rate of VAT, pursuant to Article 103(1) and (2)(a) of the VAT Directive, read in conjunction with point 2 of Article 311(1) of that directive and point 7 of Part A of Annex IX thereto, and, in particular, whether they must, for that purpose, have artistic character.

20Accordingly, in the context of the present reference for a preliminary ruling, the Court is called upon not to determine the meaning of ‘works of art’ in general, but to interpret that concept in the context of the VAT Directive and, in particular, the provisions of that directive concerning the application of a reduced rate of VAT.

21It should be noted that Article 96 of that directive provides that the same rate of VAT, that is the standard rate fixed by each Member State, is applicable to supplies of goods and services. As an exception to that principle, Article 103(1) and (2)(a) of the VAT Directive gives the Member States the option of applying the reduced rate of VAT, or one of the reduced rates, which they apply in accordance with Articles 98 and 99 thereof, to the importation of works of art, as defined in point 2 of Article 311(1) of that directive, and, where they make use of that option, also to the supply of works of art, by their creator or his successors in title.

22As regards the definition of ‘works of art’, point 2 of Article 311(1) of the VAT Directive provides that the objects listed in Part A of Annex IX to that directive are to be regarded as works of art. Point 7 of Part A refers to ‘photographs taken by the artist, printed by him or under his supervision, signed and numbered and limited to 30 copies, all sizes and mounts included’.

23The French Government submits that only ‘art photographs’ may be eligible for the reduced rate of VAT, a concept which, in that government’s view, is restricted to photographs demonstrating clear creative intent on the part of their creator and being of interest to any audience. That interpretation stems from the use of the word ‘artist’ in point 7 of Part A of Annex IX to the VAT Directive, the need to interpret the option of applying a reduced rate of VAT strictly, as an exception to the principle of applying the standard rate of VAT, and the objective of promoting artistic production by applying a reduced rate of VAT.

24By contrast, Regards Photographiques and the European Commission submit that Article 103(2)(a) of that directive refers not to the ‘artist’, but to the ‘creator’ of a photograph that is regarded as a work of art under point 2 of Article 311(1) of that directive, read in conjunction with point 7 of Part A of Annex IX thereto. Furthermore, they emphasise the detailed and objective nature of the conditions that photographs must satisfy under that point 7 in order to be regarded as works of art, whereas the artistic merit of a photograph constitutes, in their view, a subjective and indeterminate criterion whose assessment entails a judgement on the merits of a work. They submit that it is in order to avoid such a subjective assessment that the EU legislature laid down, in that point 7, detailed and objective conditions which, accordingly, alone are decisive for the purposes of identifying the photographs eligible for the reduced rate of VAT.

25In determining the scope of the option given to Member States of applying the reduced rate of VAT to the supply of photographs, as laid down in the provisions of EU law whose interpretation is sought, both the wording and context of those provisions and the objective pursued by the legislation in question must be taken into account (see, to that effect, judgments of 18 January 2017, Sjelle Autogenbrug, C‑471/15, EU:C:2017:20, paragraph 29 and the case-law cited, and of 16 November 2017, Kozuba Premium Selection, C‑308/16, EU:C:2017:869, paragraph 38).

26As regards, in the first place, the wording of those provisions, while Article 103(1) and (2)(a) of the VAT Directive provides that Member States may also apply the reduced rate of VAT to the supply of works of art by their creator or his successors in title, it refers to ‘works of art’, as defined in point 2 of Article 311(1) of that directive, read in conjunction with Part A of Annex IX thereto.

27As regards that definition, it is clear from the wording used by the EU legislature, first, in point 2 of Article 311(1), according to which the objects listed in Part A of Annex IX to the VAT Directive come under the definition of works of art and, secondly, in point 7 of Part A, which describes in detail the conditions that photographs must satisfy in order to be regarded as ‘works of art’, that any photograph which satisfies those conditions must be treated as a ‘work of art’ for the purposes of applying the reduced rate of VAT. Point 7 refers not to art photographs, but to all ‘photographs taken by the artist, printed by him or under his supervision, signed and numbered and limited to 30 copies, all sizes and mounts included’.

28As regards the French Government’s argument that it must be inferred from the use of the word ‘artist’ in point 7 of Part A of Annex IX to the VAT Directive that a photograph must have artistic character in order to be eligible for the reduced rate of VAT under Article 103(2)(a) of that directive, it must be borne in mind that, according to the latter provision, Member States may apply the reduced rate of VAT to the supply of works of art not by an ‘artist’, but ‘by their creator or his successors in title’.

29In using the words ‘creator’ and ‘artist’, those provisions refer to the same person, namely the person who is the creator of a photograph meeting the conditions expressly laid down in that point 7.

30Indeed, the words ‘creator’ and ‘artist’ used in Article 103(2)(a) of the VAT Directive and in point 7 of Part A of Annex IX thereto are identical in scope, taking into account, inter alia, the particular importance that point 7 gives to the personal involvement of the creator of the photograph in its execution. As the Advocate General observed in point 23 of his Opinion, a photograph is classified as a ‘work of art’ under point 7 only if the two key stages of its execution, namely shooting and printing, have been carried out by the creator of the photograph or, as regards the printing, at the very least under his supervision. Furthermore, in order to be regarded as ‘works of art’, the prints of the photograph must be signed, numbered and limited to 30 copies.

31Therefore, contrary to what the French Government submits, it cannot be inferred from the use of the word ‘artist’ in point 7 of Part A of Annex IX to the VAT Directive that, in addition to the conditions set out in point 7, a photograph should also have artistic character in order to be eligible for the reduced rate of VAT under Article 103(2)(a) of that directive.

32As regards, in the second place, the context of the provisions whose interpretation is sought, it must be recalled that the application of the reduced rate of VAT to the supply of works of art by their creator or his successors in title under Article 103(2)(a) of the VAT Directive constitutes an exception to the application of the standard rate of VAT. Therefore, that provision, as well as point 2 of Article 311(1) of that directive and point 7 of Part A of Annex IX thereto, which identify the photographs to which that reduced rate may be applied, must be interpreted strictly. However, that rule of strict interpretation does not mean that the terms used to set out the cases in which that reduced rate is applied should be construed in such a way as to deprive it of its effects. In fact, the interpretation of those terms must conform to the objectives pursued by that arrangement and respect the requirements of tax neutrality (see, by analogy, judgments of 17 June 2010, Commission v France, C‑492/08, EU:C:2010:348, paragraph 35, and of 29 November 2018, Mensing, C‑264/17, EU:C:2018:968, paragraphs 22 and 23 and the case-law cited).

33Furthermore, it is settled case-law that the terms contained in the VAT Directive are objective in nature and apply without regard to the purpose or results of the transactions concerned (judgment of 11 July 2018, E LATS, C‑154/17, EU:C:2018:560, paragraph 35 and the case‑law cited).

34As argued by Regards Photographiques and the Commission in their observations submitted to the Court, point 2 of Article 311(1) of that directive, read in conjunction with point 7 of Part A of Annex IX thereto, determines the photographs that are regarded as works of art by means of objective criteria which, in essence, relate to the identity and status of the creator of the photograph, to the shooting method, to signing, to numbering and to limiting the number of copies. Such criteria are sufficient to ensure that the application of the reduced rate of VAT only to photographs meeting those criteria is the exception to the application of the standard rate to any other photograph. As the Advocate General observed in point 24 of his Opinion, those criteria rule out the possibility that photographs might be classified as ‘works of art’ when they are mass produced, where printing is entrusted to specialist laboratories and the photographer does not have control over the final effect.

35On the other hand, interpreting those provisions as meaning that the application of the reduced rate of VAT is restricted to photographs that, in addition, have artistic character would make the application of that reduced rate dependent on the judgement of the competent national tax authority as to their artistic merit, such merit being a subjective, not objective, characteristic. As the Court has previously pointed out, the artistic merit of an article is defined essentially by reference to subjective and indeterminate criteria (judgments of 27 October 1977, Westfälischer Kunstverein, 23/77, EU:C:1977:171, paragraph 3, and of 13 December 1989, Raab, C‑1/89, EU:C:1989:648, paragraph 25).

36Furthermore, an interpretation whereby eligibility for the reduced rate of VAT would be reserved solely to photographs that have artistic character may result in photographs, such as, for example, photographs depicting family events such as weddings, being treated differently for VAT purposes, depending on whether or not the tax authority considers them to be artistic, even though those photographs may have similar characteristics and meet the same consumer needs. However, the principle of fiscal neutrality precludes treating goods or supplies of services that are similar from the point of view of the typical consumer, which are thus in competition with each other, differently for VAT purposes (see, to that effect, judgment of 27 February 2014, Pro Med Logistik and Pongratz, C‑454/12 and C‑455/12, EU:C:2014:111, paragraphs 52 and 53).

37Thus, the examination of the context of the provisions whose interpretation has been sought also militates in favour of interpreting them as meaning that any photograph which satisfies the conditions laid down in point 7 of Part A of Annex IX to the VAT Directive must be regarded as a work of art for the purposes of applying the reduced rate of VAT under Article 103(1) and (2)(a) thereof, without that classification being dependent on the assessment by the competent national tax authority of the photograph’s artistic character.

38As regards, in the third place, the objectives pursued by the VAT Directive, the option laid down in Article 103(1) and (2)(a) of that directive allows the Member States to grant favourable tax treatment to the supply of works of art by their creator or his successors in title by applying the reduced rate of VAT to them. That being the case, as is clear from recital 51 of that directive, the taxation system established by the directive in respect of works of art, including a uniform definition of ‘works of art’, seeks to prevent double taxation and the distortion of competition as between taxable persons.

39The interpretation that all photographs satisfying the objective conditions laid down in point 7 of Part A of Annex IX to the VAT Directive are eligible for the reduced rate of VAT is consistent with the objective referred to in recital 51, since it avoids, as noted in paragraphs 35 and 36 of this judgment, the need to assess the artistic merit of a photograph on the basis of subjective and indeterminate criteria, an assessment which bears the risk of distorting competition.

40In the light of all those considerations, the answer to the first and third questions is that in order to be regarded as works of art eligible for the reduced rate of VAT under Article 103(1) and (2)(a) of the VAT Directive, read in conjunction with point 2 of Article 311(1) of that directive and point 7 of Part A of Annex IX thereto, photographs must meet the criteria set out in that point 7, in that they have been taken by their creator, printed by him or under his supervision, signed and numbered and limited to 30 copies, to the exclusion of all other criteria, in particular the assessment by the competent national tax authority of their artistic character.

The second question

41By its second question, the referring court asks, in essence, whether Article 103(1) and (2)(a) of the VAT Directive, read in conjunction with point 2 of Article 311(1) of that directive and point 7 of Part A of Annex IX thereto, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which restricts the application of the reduced rate of VAT only to photographs that have artistic character.

42It must be borne in mind that, as regards the application of the reduced rate of VAT provided for in Article 98(1) and (2) of the VAT Directive, the Court has held that there is nothing in the text of that provision which requires that it be interpreted as meaning that that reduced rate must be applied to all aspects of a category of supply covered by Annex III to that directive. Accordingly, subject to compliance with the principle of fiscal neutrality inherent in the common system of VAT, Member States may apply a reduced rate of VAT to concrete and specific aspects of a category of supplies covered by Annex III to the VAT Directive (see, to that effect, judgments of 6 May 2010, Commission v France, C‑94/09, EU:C:2010:253, paragraphs 25 to 27; of 27 February 2014, Pro Med Logistik and Pongratz, C‑454/12 and C‑455/12, EU:C:2014:111, paragraphs 43 and 44; and of 11 September 2014, K, C‑219/13, EU:C:2014:2207, paragraph 23).

43The possibility of applying the reduced rate of VAT is justified, inter alia, by the fact that, since that rate is the exception to the application of the standard rate fixed by each Member State, the restriction of its application to concrete and specific aspects of the category of supply in question is consistent with the principle that exemptions or derogations must be interpreted restrictively (see, to that effect, judgment of 9 November 2017, AZ, C‑499/16, EU:C:2017:846, paragraph 24 and the case-law cited).

44As the Advocate General observed in point 31 of his Opinion, the principles derived from the case-law cited in the preceding two paragraphs also apply mutatis mutandis to Article 103(2)(a) of the VAT Directive. That provision extends the possibility of applying the reduced rate of VAT stemming from Article 98(1) and (2) of that directive to the supply of works of art, as defined in point 2 of Article 311(1) of that directive, by their creator or his successors in title.

45Contrary to what Regards Photographiques submits in its written observations, Article 311(2) of the VAT Directive does not require a different interpretation of Article 103(1) and (2)(a) of that directive. Article 311(1), point 2, and (2) defines the concept of ‘work of art’ both for the application of the margin scheme and for that of the reduced rate of VAT. Thus, although the latter provision states that Member States need not regard photographs covered by point 7 of Part A of Annex IX to that directive as works of art, it cannot exclude the possibility, stemming from Article 103(2)(a) of that directive, read in conjunction with Article 96 thereof, of restricting the application of the reduced rate of VAT to a limited category of those photographs, provided that such application complies with the requirements set out in paragraph 42 of this judgment.

46It follows that the exercise of the possibility granted to the Member States of restricting the application of the reduced rate of VAT to a limited category of photographs covered by point 7 of Part A of Annex IX to the VAT Directive is subject to the twofold condition, first, that they isolate, for the purposes of the application of the reduced rate, only concrete and specific aspects of those photographs and, secondly, that they comply with the principle of fiscal neutrality. Those conditions seek to ensure that Member States make use of that possibility only under conditions which ensure the correct and straightforward application of the reduced rate chosen and the prevention of any possible evasion, avoidance or abuse (see, by analogy, judgments of 6 May 2010, Commission v France, C‑94/09, EU:C:2010:253, paragraph 30, and of 27 February 2014, Pro Med Logistik and Pongratz, C‑454/12 and C‑455/12, EU:C:2014:111, paragraph 45).

47According to the Court’s settled case-law, although it is for the national court to determine whether national legislation, such as that at issue in the main proceedings, is compatible with the requirements stemming from EU law, it is for the Court to provide it with any helpful guidance to resolve the dispute before it (see, to that effect, judgment of 12 July 2012, EMS-Bulgaria Transport, C‑284/11, EU:C:2012:458, paragraph 51 and the case-law cited).

48In the present case, it is apparent from the file submitted to the Court that, according to the provisions of the CGI at issue in the main proceedings, as interpreted by the Ministerial Directive of 25 June 2003, a photograph is regarded as having artistic character only if it demonstrates clear creative intent on the part of its creator and is of interest to any audience, those criteria being clarified by a number of indicators set out in the Ministerial Directive in order to guide the tax authority’s case-by-case assessment. Although that national legislation, as thus interpreted, provides that photographs depicting, inter alia, family events such as weddings do not, in principle, have artistic character, it does not exclude the possibility that such photographs might exceptionally have such character. Only identity photographs, school photographs and group photographs are deemed not to have artistic character.

49In accordance with the case-law recalled in paragraph 46 of this judgment, photographs that have artistic character for the purposes of that national legislation must, in the first place, constitute a concrete and specific aspect of the photographs covered by point 7 of Part A of Annex IX to the VAT Directive, which means that they are, as such, identifiable separately from the other photographs covered by that point. Such identification presupposes the existence of objective, clear and precise criteria in the national legislation, making it possible to determine precisely the photographs to which that legislation reserves the application of the reduced rate of VAT (see, by analogy, judgments of 6 May 2010, Commission v France, C‑94/09, EU:C:2010:253, paragraphs 33 and 35; of 27 February 2014, Pro Med Logistik and Pongratz, C‑454/12 and C‑455/12, EU:C:2014:111, paragraph 47; and of 9 November 2017, AZ, C‑499/16, EU:C:2017:846, paragraphs 25 and 28).

50As the Advocate General observed in point 33 of his Opinion, the provisions of the CGI at issue in the main proceedings, as interpreted by the Ministerial Directive of 25 June 2003, do not lay down objective, clear and precise criteria for designating photographs that have artistic character, but merely establish an abstract definition of those photographs, based on vague and subjective criteria relating to the clear creative intent of the creator and the interest to any audience which those photographs must demonstrate.

51Although that national legislation, as thus interpreted, sets out a number of indicators to facilitate the assessment of those criteria, the fact remains that it allows the tax authority, on the basis of vague and subjective criteria, to make an assessment of the artistic quality of the photographs in question, an assessment on the basis of which the tax advantage resulting from the application of the reduced rate of VAT will or will not be granted.

52It is thus apparent that the criteria laid down by the provisions of the CGI at issue in the main proceedings, as interpreted by the Ministerial Directive of 25 June 2003, relating to the clear creative intent of the creator and the interest to any audience, do not make it possible to identify, as such, photographs that have artistic character and to distinguish them from the other photographs covered by point 7 of Part A of Annex IX to the VAT Directive and, therefore, do not meet the requirements set out in paragraph 49 of this judgment.

53In the second place, as follows from the considerations in paragraph 36 of this judgment, national legislation which restricts, on the basis of such criteria, the application of the reduced rate of VAT to photographs that have artistic character might also infringe the principle of fiscal neutrality. Therefore, it must be held that such national legislation does not comply with the requirements set out in paragraph 46 of this judgment.

54As regards identity photographs, school photographs and group photographs which, under the provisions of the CGI at issue in the main proceedings, as interpreted by the Ministerial Directive of 25 June 2003, are irrebuttably deemed not to have artistic character, it is for the referring court to ascertain whether those photographs are, as such, identifiable separately from the other photographs covered by point 7 of Part A of Annex IX to the VAT Directive and, if necessary, whether the exclusion, in any event, of those photographs from eligibility for the reduced rate of VAT is compatible with the principle of fiscal neutrality.

55In the light of the foregoing considerations, the answer to the second question is that Article 103(1) and (2)(a) of the VAT Directive, read in conjunction with point 2 of Article 311(1) of that directive and point 7 of Part A of Annex IX thereto, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which restricts the application of the reduced rate of VAT only to photographs that have artistic character, in so far as the existence of such artistic character is subject to an assessment by the competent national tax authority which is not made within the confines of objective, clear and precise criteria set by that national legislation, making it possible to determine precisely the photographs to which that legislation reserves the application of the reduced rate of VAT, in such a way as to avoid infringing the principle of fiscal neutrality.

The fourth question

56In the light of the answer to the first and third questions, there is no need to reply to the fourth question.

Costs

57Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Second Chamber) hereby rules:

In order to be regarded as works of art eligible for the reduced rate of value added tax (VAT) under Article 103(1) and (2)(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with point 2 of Article 311(1) of that directive and point 7 of Part A of Annex IX thereto, photographs must meet the criteria set out in that point 7, in that they have been taken by their creator, printed by him or under his supervision, signed and numbered and limited to 30 copies, to the exclusion of all other criteria, in particular the assessment by the competent national tax authority of their artistic character.

Article 103(1) and (2)(a) of Directive 2006/112, read in conjunction with point 2 of Article 311(1) of that directive and point 7 of Part A of Annex IX thereto, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which restricts the application of the reduced rate of VAT only to photographs that have artistic character, in so far as the existence of such artistic character is subject to an assessment by the competent national tax authority which is not made within the confines of objective, clear and precise criteria set by that national legislation, making it possible to determine precisely the photographs to which that legislation reserves the application of the reduced rate of VAT, in such a way as to avoid infringing the principle of fiscal neutrality.

Signatures

[Signatures]

( *1 ) Language of the case: French.

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 7 March 2019 ¹

(Reference for a preliminary ruling — Common system of value added tax — Special arrangements — Works of art — Reduced rate of VAT — Photographs taken by the artist, printed by him or under his supervision, signed and numbered and limited to 30 copies)

Introduction

1It is hard to define photography. Its nature as a ‘reflection of reality’, its apparent ease of execution and its increasing democratisation (these days almost everyone owns a camera, even if only in their telephones) raise doubts as to its artistic character. The debate as to whether photography is art and, if so, under what conditions is as old as photography itself. ² Such debate is naturally legitimate between philosophers or art theorists. However, taxation of business transactions must be founded on clear and objective criteria based on legislation, even where such transactions relate to objects classified as ‘works of art’. This debate cannot be settled by tax authorities, national courts or even the Court of Justice. In this Opinion I shall explain why any attempt to do so, like that made in French administrative practice, not only is incapable of achieving its aim, namely to make it possible to distinguish what is art from what is not, but necessarily leads to an infringement of legal certainty, fiscal neutrality and competition.

Legal context

EU law

2Under Article 103 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax: ³

‘1. Member States may provide that the reduced rate, or one of the reduced rates, which they apply in accordance with Articles 98 and 99 is also to apply to the importation of works of art, collectors’ items and antiques, as defined in points (2), (3) and (4) of Article 311(1).

2. If Member States avail themselves of the option under paragraph 1, they may also apply the reduced rate to the following transactions:

the supply of works of art, by their creator or his successors in title;

…’

3Article 311 of that directive provides:

‘1. For the purposes of this Chapter, and without prejudice to other Community provisions, the following definitions shall apply:

…

(2) “works of art” means the objects listed in Annex IX, Part A;

….

2. Member States need not regard as works of art the objects listed in points (5), (6) or (7) of Annex IX, Part A.’

4Point 7 of Part A of Annex IX (‘Works of art’) to the directive reads as follows:

‘photographs taken by the artist, printed by him or under his supervision, signed and numbered and limited to 30 copies, all sizes and mounts included.’

French law

5Article 278f of the Code général des impôts (General Tax Code, CGI), in its version applicable up to 31 December 2011, provided:

‘Value added tax shall be levied at the rate of 5.5%: [ ⁴]

…

(2) on the supply of works of art, by their creator or his successors in title;

…’

6Under point 7 of Article 98 A of Annex II to the CGI, the following are to be regarded as works of art: ‘photographs taken by the artist, printed by him or under his supervision, signed and numbered and limited to 30 copies, all sizes and mounts included …’.

7The Ministerial Directive of 25 June 2003, as applicable at the material time (‘the Ministerial Directive of 25 June 2003’), provided the following clarification as regards the conditions for the application of the reduced rate of VAT in respect of art photographs:

‘…

Criteria for art photographs:

1Only photographs demonstrating clear creative intent on the part of their creator may be regarded as works of art eligible for the reduced rate of VAT.

That is the case where, through subject choice, setting, features of the shot or any other distinctive characteristic of the photographer’s work, such as framing quality, composition, exposure, lighting, contrast, colours and relief, play of light and volume, lens and film selection or the specific conditions in which the negative is processed, he produces a work which goes beyond the simple mechanical fixation of the memory of an event, trip or people and which is thus of interest to any audience.

Conditions for application

1In the light of the above, identity photographs, school photographs and group photographs are not eligible for the reduced rate.

2Photographs where interest depends primarily on the status of the individual or the nature of the object shown are not, in general, regarded as art photographs. That is the case, for example, with photographs depicting family or religious events (weddings, communions etc.).

3That being said, for photographs of any kind other than those mentioned in II‑1, the creative intent of the creator as evidenced by the criteria already set out and the interest to any audience may be reinforced by the following indicators:

The photographer proves that his works have been exhibited in cultural institutions (regional, national or international), museological institutions (museums, temporary or permanent exhibitions) or commercial institutions (trade fairs, shows, galleries etc.) or that they have been presented in specialist publications.

…

The use of specific equipment for both taking and developing the photograph.

…’

Facts, procedure and questions referred for a preliminary ruling

8The business activity of Regards Photographiques SARL is the creation and sale of photographs.

9Following an audit of accounts, the tax authority (France) called into question the reduced rate of VAT that the company had applied to the supply of certain photographs, namely portraits and wedding photographs. Because it considered that these photographs should be subject to the standard rate of VAT, the tax authority imposed on Regards Photographiques additional assessments of VAT for the period from 1 February 2009 to 31 January 2012.

10The action brought by Regards Photographiques against those additional assessments of VAT was dismissed by the tribunal administratif d’Orléans (Administrative Court, Orléans, France) and by the cour administrative d’appel de Nantes (Administrative Court of Appeal, Nantes, France). Regards Photographiques has appealed on a point of law against that judgment to the referring court.

11In those circumstances, the Conseil d’État (Council of State, France) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

Must the provisions of Articles 103 and 311 of Directive [2006/112] and point 7 of Part A in Annex IX thereto, be interpreted as meaning that they require only that the photographs are taken by their photographer, printed by him or under his supervision, signed and numbered up to a maximum of 30 copies, all sizes and mounts included, in order to be able to benefit from the reduced rate of VAT?

If the answer to the first question is yes, are Member States nevertheless permitted to exclude from the benefit of the reduced rate of VAT photographs that are not, in addition, artistic in character?

If the answer to the first question is no, what other conditions must the photographs satisfy in order to benefit from the reduced rate of VAT? In particular, must they show an artistic character?

Must those conditions be interpreted uniformly within the European Union, or do they refer to the law of each Member State, in particular in the field of intellectual property?’

12The request for a preliminary ruling was received at the Court on 23 February 2018. Written observations were submitted by Regards Photographiques, the French Government and the European Commission. The same parties were represented at the hearing held on 21 November 2018.

Analysis

13The referring court asks the Court four questions. Of those questions, the first has fundamental significance, while the other three are somewhat ancillary in nature. I shall therefore begin by analysing the first question.

The first question

14The first question concerns the interpretation of point 7 of Part A of Annex IX to Directive 2006/112. It should be recalled that this provision sets out the conditions which must be satisfied by photographs in order for them to be classifiable as ‘works of art’ and, in particular, to be eligible for the reduced rate of VAT under Article 103(2)(a) of the directive. Those conditions are that the photographs must have been taken by the artist, printed by him or under his supervision, signed and numbered and limited to 30 copies.

15The main point of contention in this case seems to relate to the term ‘artist’. The practice of the French tax authorities, as codified in the abovementioned provisions of the Ministerial Directive of 25 June 2003, infers from that term a justification for establishing additional requirements in respect of the ‘artistic’ character of photographs eligible for the reduced rate of VAT. This position is summarised perfectly by the French Government, which states in its observations that, for a photograph to be classified as a ‘work of art’ within the meaning of point 7 of Part A of Annex IX to Directive 2006/112, it is not only necessary that ‘the substantive conditions laid down [in that provision] [are] met’ but also that ‘the photograph [is] an artistic creation of the creator which reflects his personality and which may be of interest to any audience’. According to the French Government, this second condition follows from the fact that, under point 7 of Part A of Annex IX to Directive 2006/112, a photograph should be ‘taken by an artist’.

16I must confess at the outset that I have an entirely different reading of the abovementioned provision which stems from a literal, holistic and teleological interpretation of that provision.

17In my view, the interpretation advocated by the French Government does not withstand a simple grammatical analysis of the provision at issue. According to the French Government, that provision requires that the photograph is taken ‘by an artist’, whereas its precise wording refers to a photograph taken ‘by the artist’. The French Government’s analysis is thus based on a modified formulation of the provision in question, thereby making it say something that it does not say.

18The use of the definite article ‘the’ in the provision in question is not insignificant and reflects the meaning desired by the EU legislature. To replace it with the indefinite article ‘an’ alters that meaning, thus distorting the will of the EU legislature. Furthermore, it should be noted that the definite article is also used in other language versions of point 7 of Part A of Annex IX to Directive 2006/112, drafted in languages which have the grammatical category of articles. ⁵ The French Government’s argument could be more readily accepted on the basis solely of language versions which, like Polish, do not have definite and indefinite articles. In those languages, the use of the term ‘artist’ on its own may, from a purely grammatical point of view, cause confusion. However, the requirement, in interpreting a provision of EU law, relating to consideration of its substance in several language versions allows any possible confusion to be dispelled.

19The term ‘artist’, preceded by a definite article in the languages which have that grammatical form, appears in each point of Part A of Annex IX to Directive 2006/112. Thus, aside from photographs, pictures etc. ‘executed entirely by hand by the artist,’, engravings, etc. of plates ‘executed entirely by hand by the artist’, sculptures, etc. ‘executed entirely by the artist’, tapestries and wall textiles ‘made by hand from original designs provided by artists’, individual pieces of ceramics ‘executed entirely by the artist’ and enamels on copper ‘bearing the signature of the artist or the studio’ are considered to be works of art.

20These provisions set out the stages in the execution of the object which must be completed by the person who is considered to be its creator. As the objects in question are classified as ‘works of art’ for the purposes of the application of the VAT system, their creators are classified, according to the wording used, as ‘artists’. It is therefore being the creator of an object in one of the categories specified in Part A of Annex IX to Directive 2006/112 that confers status as an ‘artist’ within the meaning of that Annex, and not vice versa. The sole purpose of specifying that the object must be personally executed is to exclude items of industrial mass production and simple copies or reproductions not executed personally by the creator from the application of the various derogation arrangements under the VAT system. ⁶

21However, contrary to the inferences following from the interpretation advocated by the French Government, it is not the aim of these provisions to draw a distinction between, on the one hand, paintings, sculptures, engravings etc. executed by persons who, in the view of the tax authority, have the status of artist and, on the other, those executed by persons not having that status. Moreover, the French Government asserted at the hearing, in response to a question asked by the Court, that in French administrative practice this additional ‘artistic character’ requirement applies to just one category of works of art, namely photographs.

22I cannot see any reason to justify treating this category any differently from the others.

23Point 7 of Part A of Annex IX to Directive 2006/112 sets out the requirements to be met by a photograph in order to be classified as a ‘work of art’ within the meaning of that provision. Those requirements focus primarily on two key stages in the execution of a photograph: shooting and printing on paper or other physical media. Shooting, which includes choice of the subject of the photograph, camera settings and production of the image on a photosensitive surface (usually silver-halide film or an electronic sensor), must be done by the creator of the photograph. The next stage is printing, a term which means, in analogue technology, developing the film and printing in the strict sense, that is, producing a print on paper or, in digital technology, digital retouching and printing out on paper or other media. This stage must be performed by the creator of the photograph himself or under his supervision. It is common practice in author photography to give the task of printing to a specialist, although the photographer retains full control over the final effect, that is to say, the image produced on paper or other physical media. The photograph must then be signed by the creator, the number of copies (prints on paper or other media) being limited to 30.

24These requirements make it possible to distinguish photographs that can be classified as ‘works of art’ from photographic mass production where, if there is printing on paper or other media, ⁷ in most cases it is entrusted, wholly or partly, to specialist laboratories and the photographer does not have control over the final effect.

25However, no requirements can be inferred from point 7 of Part A of Annex IX to Directive 2006/112, whether as regards the necessary or excluded subject of the photograph, its artistic standard or the status of its creator. Any photograph produced in the conditions set out in that provision and sold in circumstances where VAT is levied ⁸ is considered to constitute a ‘work of art’ under that provision. Similarly, any person who has executed such a photograph is classified as an ‘artist’ within the meaning of that provision.

26The term ‘artist’ in Part A of Annex IX to Directive 2006/112 fulfils an additional role in connection with the application of the reduced rate to the supply of works of art. Under Article 103(2)(a) of Directive 2006/112, that rate is applicable only to supplies made by the creators of those works of art or their successors in title. Directive 2006/112 does not define the notion of ‘creator’ of a work of art, but it seems very clear that this can only be the ‘artist’ mentioned in Part A of Annex IX to Directive 2006/112. Thus, the argument put forward by the French Government in its written observations that the notion of ‘creator’ in Article 103(2)(a) of Directive 2006/112 and the notion of ‘artist’ used in Part A of Annex IX to that directive are distinct is entirely unfounded in my view, as the logic of the rules on the reduced rate applicable to works of art is based precisely on the identity of the person making the supply, namely the creator within the meaning of Article 103(2)(a) and the person who produced the work of art in question (the artist within the meaning of Part A of Annex IX).

27Therefore, the use of the term ‘artist’ in point 7 of Part A of Annex IX to Directive 2006/112 does not, contrary to the claim made by the French Government in support of its administrative practice, justify a refusal to grant certain photographs the status of ‘work of art’ within the meaning of that provision by reason of their subject, their artistic standard or the status of their creator.

28I therefore propose that the first question be answered to the effect that Article 103(2)(a) of Directive 2006/112, read in conjunction with point 7 of Part A of Annex IX to that directive, must be interpreted as meaning that it requires only that the photographs are taken by their creator, printed by him or under his supervision, signed and numbered up to a maximum of 30 copies, all sizes and mounts included, in order to be able to benefit from the reduced rate of VAT.

The second question

29By its second question, the referring court asks, in essence, whether, even though point 7 of Part A of Annex IX to Directive 2006/112 does not lay down any such requirement, Member States are free to make the application of the reduced rate of VAT to photographs subject to the condition that the photographs are artistic in character, such classification being defined by the Member States’ legislation or administrative practice. In other words, the question asks whether point 7 of Part A of Annex IX to Directive 2006/112 precludes a practice of a Member State such as that codified by the Ministerial Directive of 25 June 2003.

30In this regard, the Commission rightly points out that the Court has repeatedly held that the Member States may apply a reduced rate of VAT to concrete and specific aspects of a category of supplies for which they have the option to apply such a rate (selective application), provided they comply with the principle of fiscal neutrality. ⁹ The Court has thus accepted the charging of a different rate of tax for energy supply under a standing charge and for energy supply without a standing charge, ¹⁰ for services of laying of a water mains connection and for other water supply services, ¹¹ for services of transporting a body and for other services provided by undertakers ¹² and, subject to subsequent verification by the national courts, for taxi transport services and for minicab transport services, ¹³ for books on paper and for books on other media ¹⁴ or for fresh pastry goods and cakes depending on their use-by date. ¹⁵

31I concur with the Commission’s view that this case-law could be transposed to the application of the reduced rate pursuant to Article 103(2)(a) of Directive 2006/112.

32However, it would seem that the aim of French administrative practice with regard to the application of the reduced rate to photographs, as codified by the Ministerial Directive of 25 June 2003, is not the selective application of that rate within the meaning of the case-law referred to in this Opinion, but the establishment of additional criteria for distinguishing photographs which are artistic in character from those which are not. This is confirmed both by the wording of the second question and by the observations submitted by the French Government.

33Thus, Part I of the Ministerial Directive of 25 June 2003, entitled ‘Criteria for art photographs’, seeks to establish an abstract definition of art photographs, based inter alia on the criteria of the clear creative intent of the creator and interest to any audience. It must be stated, however, that these criteria are highly ambiguous and subjective. They ensure neither compliance with legal certainty, as they allow the tax authority almost unlimited discretion, nor compliance with fiscal neutrality, as two objectively identical photographs could be taxed differently depending on whether or not, in the tax authority’s view, they demonstrate clear creative intent and interest to any audience.

34Part II of the Ministerial Directive of 25 June 2003 seems to lessen this ambiguity by providing clarification as to the classification of different kinds of photographs. The result is nevertheless even less convincing.

35First, point II-1 of the Ministerial Directive of 25 June 2003 excludes identity photographs, school photographs and group photographs. While the category of identity photographs is fairly easy to define, the same does not hold for the other two categories. ¹⁶ In addition, it is not clear how this exclusion is linked with the criteria set out in Part I of the Ministerial Directive. In particular, the group portrait has, since the dawn of time, been an artistic subject par excellence ¹⁷ and a group photograph could therefore perfectly well demonstrate clear creative intent on the part of its creator and be of interest to any audience.

36Second, point II-2 of the Ministerial Directive of 25 June 2003 excludes, but only ‘in general’, photographs where interest depends primarily on the status of the subject photographed. Mention is made, albeit only by way of example, of photographs depicting family events, such as weddings and communions. Determination of the interest represented by a photograph is thus, once again, left to the discretion of the tax authority.

37However, according to point II-3 of the Ministerial Directive of 25 June 2003, the artistic character of a photograph can be reinforced (but not, it seems, definitively demonstrated) by the fact that the photographer has exhibited his works in cultural, museological or commercial institutions or published them, and by the use of specific equipment.

38As regards the criterion of exhibition or publication of the photographer’s works, in my view it is contrary to the principle of fiscal neutrality as, under that criterion, the rate of taxation of the supply of goods (the photograph) depends on qualities of the taxable person making that supply. These are not relevant from the point of view of the levying of VAT. Thus, a single supply to a single customer could be subject to a standard rate or a reduced rate depending on whether the vendor proves the exhibition or publication of his works which, if I understand it properly, do not necessarily have to be the same as the object of the supply.

39The criterion of equipment used poses serious risks of distortion of competition as it favours certain technologies (analogue technology, more specifically silver-halide), certain formats and certain techniques (printing on photo paper) and disregards others, especially digital technology. These technical differences do not affect the artistic character of the photograph produced or have any relevance in terms of the rate of taxation.

40The Ministerial Directive of 25 June 2003 thus attempts to capture in administrative terms something that is elusive, namely the artistic character of a work. By making the tax authority an art critic, such an attempt necessarily infringes legal certainty, the principle of fiscal neutrality and competition. It is therefore far from the objective and unambiguous criteria that the Court accepted in the case-law cited in point 30 of this Opinion for Member States to be permitted to limit the scope of the reduced rate of VAT to certain categories of goods and services for which such a rate may be applied. French administrative practice, as codified in the Ministerial Directive of 25 June 2003, is therefore contrary to the general principles governing the common system of VAT.

41This finding is not called into question by the French Government’s argument that the limitation of the application of the reduced rate solely to photographs which are artistic in character stems from the objective of Article 103 of Directive 2006/112, namely promoting the development of the market in works of art.

42It is true that the recitals of Directive 2006/112 do not explain the reasons which led the EU legislature to permit Member States to apply the reduced rate to the objects specified in Annex IX to that directive. It should be stated, however, that this option is consistent with the favourable tax treatment under the directive of goods and services designed to meet a wide range of cultural and entertainment needs of consumers. Thus, Article 132(1)(n) of Directive 2006/112 introduces a mandatory exemption for the supply of certain cultural services and the supply of goods closely linked thereto. As regards the reduced rate, Article 98 of Directive 2006/112, read in conjunction with Annex III to the directive, permits the application of such a rate, inter alia, to the supply of books, newspapers and periodicals, to admission to shows, theatres, circuses, fairs, amusement parks, concerts, museums, zoos, cinemas, exhibitions and similar cultural events and facilities, to reception of radio and television broadcasting services and to supply of services by writers, composers and performing artists, or of the royalties due to them.

43None of these provisions mentions any requirement relating to the artistic character or standard of the goods or services in the abovementioned categories. On the contrary, the very broad formulation of those categories tends to suggest that the EU legislature wished to include all kinds of cultural and entertainment activities in them, without passing judgement on their artistic or intellectual standard. The objective underlying favourable tax treatment of these activities is therefore plainly not limited to the promotion of art in the noble sense of the term.

44I cannot therefore see why the purported objective of Article 103 of Directive 2006/112 would require that article to be applied only to objects having artistic character. If the EU legislature introduced the option for Member States to apply the reduced rate of VAT to certain objects (works of art, collectors’ items and antiques) and provided a legal definition of those objects (in Annex IX of Directive 2006/112), it is not appropriate to call into question that definition by attempting to elaborate upon it by means of vague and ambiguous notions on the ground that it does not serve the objective that the EU legislature wished to achieve in introducing that option.

45This is all the more so since the French administrative practice in question, as codified by the Ministerial Directive of 25 June 2003 and outlined in the request for a preliminary ruling and in the observations submitted by the French Government, lacks consistency in two respects.

46First, the French Government asserted at the hearing that the artistic character requirement is applied only to photographs and not to the other categories of works of art specified in Part A of Annex IX to Directive 2006/112 (not to mention collectors’ items or antiques which are referred to in Parts B and C of that Annex). However, works of lesser artistic quality or of interest only to specific individuals also exist in other fields of art. How would a drawing made by a ‘street artist’ at a tourist site or a commemorative work of art be better than a family photograph produced by a professional studio?

47Second, to the best of my knowledge, Article 279(g) of the CGI provides for the application of the reduced rate (currently 10%) to the transfer of copyright, including for photographs, without any requirement relating to the artistic character of the works to which that copyright relates.

48I am well aware that photography is, aside from a means of artistic expression, a technical process for reproducing an image of reality for purposes entirely other than meeting cultural or entertainment needs, which would justify their exclusion from the benefit of the reduced rate. That is the case, for example, with identity photographs, photographs to document the scene of an accident or damage for insurance purposes, photographs of land and buildings for the purposes of their sale or rental, medical photographs and so on. However, such photographs are not normally supplied in the conditions mentioned in point 7 of Part A of Annex IX to Directive 2006/112. The only notable exception may be identity photographs, it would seem. Nevertheless, this category of photographs is sufficiently identifiable with the aid of objective criteria that it can be easily excluded from the application of the reduced rate of VAT without infringing legal certainty and fiscal neutrality.

49I therefore propose that the second question be answered to the effect that Article 103(2) of Directive 2006/112 must be interpreted as meaning that Member States are entitled, subject to compliance with legal certainty and fiscal neutrality, to apply the reduced rate only to certain categories — defined objectively and unambiguously — of objects specified in Part A of Annex IX to that directive. However, Member States are not authorised to apply to those objects additional requirements, based on vague criteria or granting the authorities responsible for the application of the tax provisions broad discretion, such as the artistic character of an object.

The third question

50The answer to the third question follows from my proposed answers to the first two questions and does not therefore require separate analysis.

The fourth question

51By its fourth question, the referring court asks, in essence, whether Member States may have recourse to criteria applied in other areas of national law, in particular copyright, in order to delimit the notion of ‘work of art’ in respect of photographs. A negative answer to this question follows from my proposed answers to the first two questions. I would nevertheless like to make the following remarks on this point.

52Copyright has long recognised that photographs have the character of intellectual works. ¹⁸ However, the notion of ‘work’ for the purposes of copyright does not imply any assessment of the artistic character or standard of the object in question. Although, for protection to be granted, copyright requires the work to be original, that is, to be the intellectual creation of its creator, this condition is interpreted very broadly so that it is an easy step to take. This also applies to photographs as, contrary to certain received ideas, a photograph is rarely a perfect representation of reality: ¹⁹ if only by framing, the photographer excludes part of that reality, thereby making a creative choice. The notion of ‘work’ used in copyright would not therefore be of any use in delimiting the notion of ‘work of art’ within the meaning of point 7 of Part A of Annex IX to Directive 2006/112.

53Furthermore, copyright is to a large degree harmonised within the European Union, through Directive 2001/29/EC in particular. ²⁰ That harmonisation includes the notion of ‘work’, which is an autonomous concept of EU law. ²¹ As far as photographs are concerned, the Court has recognised simple portrait ²² and landscape photographs ²³ as works. I assume that a wedding photograph could also be classified as a ‘work’ for the purposes of copyright.

Conclusion

54In the light of all the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Conseil d’État (Council of State, France) as follows:

1Article 103(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with point 7 of Part A of Annex IX to that directive, must be interpreted as meaning that it requires only that the photographs are taken by their creator, printed by him or under his supervision, signed and numbered up to a maximum of 30 copies, all sizes and mounts included, in order to be able to benefit from the reduced rate of VAT.

2Article 103(2) of Directive 2006/112 must be interpreted as meaning that Member States are entitled, subject to compliance with legal certainty and fiscal neutrality, to apply the reduced rate only to certain categories — defined objectively and unambiguously — of objects specified in Part A of Annex IX to that directive. However, Member States are not authorised to apply to those objects additional requirements, based on vague criteria or granting the authorities responsible for the application of the tax provisions broad discretion, such as the artistic character of an object.

¹ Original language: French.

² Charles Baudelaire wrote in 1859, regarding the invention of the daguerreotype, that ‘… this industry, by invading the territories of art, has become art’s most mortal enemy …’ (Baudelaire, Ch., ‘Salon de 1859’, Revue française, vol. XVII, 1859, p. 262).

³ OJ 2006 L 347, p. 1.

⁴ As from 1 January 2012, the rate was increased to 7%.

⁵ Such as the English (‘photographs taken by the artist’), German (‘vom Künstler aufgenommene Photographien’), Spanish (‘fotografías tomadas por el artista’) and other versions.

⁶ Annex IX to Directive 2006/112 is applicable not only in the context of the reduced rate but also in the context of the special taxation arrangements laid down in Title XII, Chapter 4 of that directive.

⁷ These days the vast majority of photographs remain as digital files without a print being made on physical media. These photographs can also be marketed digitally. In terms of the rules on VAT, this constitutes a supply of services and the question of their classification as works of art does not therefore arise (see point 3 of Annex II to Directive 2006/112).

⁸ That is to say, as a supply of goods made in the context of the economic activity of its vendor, who has the status of a taxable person for VAT purposes (see Article 2(1)(a) and Article 9(1) of Directive 2006/112). In particular, the occasional sale of a photograph outside the scope of an economic activity does not result in VAT being levied and the question of the classification of that photograph as a work of art within the meaning of point 7 of Part A of Annex IX to Directive 2006/112 does not therefore arise.

⁹ See, in particular, judgment of 27 February 2014, Pro Med Logistik and Pongratz (C‑454/12 and C‑455/12, EU:C:2014:111, paragraphs 43 to 45 and the case-law cited).

¹⁰ Judgment of 8 May 2003, Commission v France (C‑384/01, EU:C:2003:264, paragraph 29).

¹¹ Judgment of 3 April 2008, Zweckverband zur Trinkwasserversorgung und Abwasserbeseitigung Torgau-Westelbien (C‑442/05, EU:C:2008:184, second sentence of paragraph 2 of the operative part).

¹² Judgment of 6 May 2010, Commission v France (C‑94/09, EU:C:2010:253, paragraph 46).

¹³ Judgment of 27 February 2014, Pro Med Logistik and Pongratz (C‑454/12 and C‑455/12, EU:C:2014:111, paragraph 1 of the operative part).

¹⁴ Judgment of 11 September 2014, K (C‑219/13, EU:C:2014:2207, operative part).

¹⁵ Judgment of 9 November 2017, AZ (C‑499/16, EU:C:2017:846, operative part).

¹⁶ The category of school photographs in particular seem mysterious to me: are they photographs showing pupils and/or teachers, photographs produced by pupils as part of their studies or other kinds of photographs?

¹⁷ To name only the Laocoön Group or The Last Supper by Leonardo da Vinci.

¹⁸ One of the first judicial decisions extending copyright protection to photography was the judgment of the Supreme Court of the United States of 17 March 1884, Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) (see Markiewicz, R., Ilustrowane prawo autorskie, Warsaw, 2018, p. 106). The Berne Convention for the Protection of Literary and Artistic Works, signed at Berne on 9 September 1886, has required photographs to be protected since the Berlin Act of 1908. Lastly, Article 9 of the World Intellectual Property Organisation (WIPO) Copyright Treaty, adopted in Geneva on 20 December 1996, aligned the duration of copyright protection for photographs with other categories of works.

¹⁹ Or, to be more precise, our image of reality.

²⁰ Directive of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

²¹ See, to that effect, judgment of 16 July 2009, Infopaq International (C‑5/08, EU:C:2009:465, paragraphs 31 to 37).

²² Judgment of 1 December 2011, Painer (C‑145/10, EU:C:2011:798, paragraph 94).

²³ Judgment of 7 August 2018, Renckhoff (C‑161/17, EU:C:2018:634, paragraph 14).