Bill Viola, The Lovers, 2005, HD video on plasma screen.

Apparently the European Commission could use a primer on modern and contemporary esthetics. Last December, it declared that works by Dan Flavin and Bill Viola do not fulfill the definition of art. Everyone’s a critic, it seems.

The story begins in 2006, when London’s Haunch of Venison gallery (which also has locations in New York and Berlin) imported six video installations by Viola and was planning to bring in a light work by Flavin, all designated “sculpture.” A British customs official, seeing a shipment of audiovisual equipment, decided to apply to the declared value the standard VAT (value added tax) rate of 17.5 percent (which increased to 20 percent on Jan. 1, 2011) instead of the 5-percent rate applied to artworks, i.e., $66,000 instead of about $19,000. The gallery appealed the decision in a UK tax tribunal and received a favorable ruling in 2008. But in a stunningly philistine move, the EC reversed that decision last December, denying the objects’ classification as art. The European Commission is the European Union’s executive body, administering EU policies, allocating funds and enforcing European treaties and laws in member nations. Pierre Valentin, the lawyer who represented Haunch of Venison in 2008, told the Art Newspaper that the EC’s decision is contrary to earlier judicial rulings, in the UK and the Netherlands, which had classified video and light installations as art.

 

In its ruling, the EC found that the Flavin has “the characteristics of lighting fittings” and should therefore be classified as such. More astounding was the chicken-or-egg logic used to exclude the Viola videos: “It is not the installation that constitutes a ‘work of art’ but the result of the operations (the light effect) carried out by it.” As if the videos could spring to life on their own. Since the additional cost would likely be passed on to the buyer—or the seller as well, if a work were being sold at auction—the higher VAT could greatly impact the art market for such works in the EU.

A precedent can be found in U.S. history; in 1926, customs officials held up the importation of Constantin Brancusi’s Bird in Space because of its lack of resemblance to a bird, and categorized it as a manufactured object of metal. Under pressure, officials released the work on bond and under the category of “Kitchen Utensils and Hospital Supplies,” which resulted in a higher import tax even as it helped get the work through customs in time for an exhibition. Edward Steichen, who had purchased the sculpture, challenged the designation in court and won. The judge who made the 1928 ruling acknowledged the difficulty posed by the work’s abstractness, but found that because it was “pleasing to look at and highly ornamental” and was made by a professional sculptor, it was therefore a work of art.

In a global art world, people and objects are constantly crossing borders. Granted, it’s a big world, and scammers and smug- glers abound, so it’s not surprising if an uninformed customs official opens a crate containing modern art and sees only TVs and speakers or light fixtures. What is surprising, though, is that following a legal process in which facts and historical evidence were thoughtfully reviewed by intelligent individuals, the presumably progressive EC reached the same unenlightened conclusion.