It is a question that has dogged the contemporary art world since Duchamp put a urinal in a gallery: is it art?
When the lights were switched on at a Dan Flavin retrospective at the Hayward Gallery in London, critics were entranced. “Beautiful,” Laura Cumming wrote in The Observer in 2006. “You wonder how it is possible that so much pleasure could emit from such a dismal source: the cold fluorescent tubes of strip lighting.”
But the European Commission has taken a less poetic view, ruling that the work of the US artist, who died in 1996 after half a century of creating pioneering sculpture, should be classified for tax purposes as simple light fixtures. His work, it said, has “the characteristics of lighting fittings … and is therefore to be classified … as wall lighting fittings”.
The ruling overturns an earlier British customs tribunal verdict, and was denounced by one lawyer specialising in arts cases as “extraordinary”.
This is no mere academic view. It means Flavin works imported by any museum or gallery from outside the European Union are liable to full VAT, which rises to 20 per cent on January 1. As sculpture, the pieces would be subject to only 5per cent VAT. In its ruling, the commission said: “It is not the installation that constitutes a ‘work of art’ but the result of the operations (the light effect) carried out by it.”
The ruling also affects the work of another American, Bill Viola, who became the first living artist to have a major exhibition at the National Gallery in London, and whose video pieces, filmed in extreme slow motion, moved many viewers to tears.
St Paul’s Cathedral could be among the first victims of the ruling. It has commissioned two altar pieces from Viola, due to be unveiled next year, which could become dramatically more expensive.