EU taxman sets up as judge of what constitutes art

The European Commission has ruled that light sculptures by the American Dan Flavin should be classified as 'fittings' rather than 'art'.

An untitled installation using green fluorescent lighting by the US artist Dan Flavin in the Hayward Gallery in London in 2006. European bureaucrats have ruled that, for tax purposes, his work is not art.Show less

"Yes, but is it art?" It's the great question continually asked of modern art, from Tracey Emin's notorious unmade bed to Andy Warhol's soup cans, a question that has vexed cultural commentators and the public alike ever since the Dadaist Marcel Duchamp impishly displayed a urinal signed R Mutt at a 1917 exhibition. Finally, at the start of 2011, it appears we have an answer. And it has come from the top. European Commission officials have ruled that critically acclaimed installations from a famous American light sculptor are not art at all. They are henceforth to be classified as "wall lighting fittings". Quite a comedown.

The ruling has caused quite a stir, not least because the work in question is by Dan Flavin, who died in 1996. A pioneer in the art of light, he used fluorescent tubing to create minimalist masterpieces. In The National in 2009, we called Flavin's work "inventive", "unique", "simplicity itself". But from now on, clearly, we'll just have to call him an electrician.

It won't be a surprise to learn that the EU bureaucrats are less concerned with the meaning of modern art than with what its status means economically. The history of the Flavin case is complicated: the Haunch of Venison gallery in London was hit with a £36,000 (Dh 206,433) VAT (value-added tax) bill in 2006 after it displayed work by Flavin and his fellow American, the video-sound artist Bill Viola. UK Customs took issue with their designation as artworks - which enjoy a lower rate of VAT to encourage trade and exhibition - and argued they were light fittings, which can be taxed much more heavily. Despite a successful appeal by the gallery, the EU Commission upheld the original Customs claim, making it much more unlikely that people in the UK will be able to enjoy the work of light artists who are not based in the EU.

To make matters slightly more confusing, the Commission also said that the work could not be classified as 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". Follow that line of logic, and perhaps Leonardo's Mona Lisa becomes mere wallpaper when the Louvre turns off the gallery lights.

But aside from the issues of tax law, the ruling has brought the "is it art?" debate back to the fore, not least because it recalls another famous light installation. Martin Creed's Turner Prize-winning The Lights Going On and Off was literally a light going on and off in an empty room. It wasn't art in the traditional sense of a Leonardo or a Monet painting, but it was a curiously affecting experience - unsettling and theatrical.

It also struck at the heart of why art continues to enthral: Creed's work seriously annoyed people. The old jibe along the lines of "call that art? I could have done that in 10 minutes" was wheeled out again. And indeed they could - if they'd cleared out their garage, turned the light switch on and off again, and then opened said garage up to the public. But the fact is, no one else had the cheek or the bravado to do so. And because of that, The Lights Going On and Off is a purer, punkier artistic statement than some more commercial artwork using traditional paint.

On a much grander scale, Olafur Eliasson's light installation at the Tate Modern's Turbine Hall, The Weather Project, was absolutely beautiful. Some saw it as a meditation on our mortality, others as a celebration of life. And yet it was, in the end, just a yellow ball of light in a big room, shrouded in hazy smoke effects. The success of Eliasson's work proved that art isn't always about looks - arguably, in fact, rarely so. The greatest art is about the feelings it provokes and the memories it creates.

Sometimes, naturally, those feelings are snorts of derision. In 2004, a cleaner threw out a rubbish bag, not realising it was part of a high-profile installation by Gustav Metzger at the Tate. If anything confirmed the notion that one man's masterpiece is another man's trash, it was that cleaner's action. But groundbreaking art is meant to provoke such debates. Perhaps the answer to "Is it art?" lies within the question. After all, if Flavin's "light fittings" are discussed by cultural commentators across the world - rather than, say, DIY enthusiasts - then it's a pretty sure bet that they are, indeed, art.

* Ben East