Call that art? No, Dan Flavin's work is just simple light fittings, say EU experts

It is a question that has dogged the contemporary art world since Duchamp put a urinal in a gallery: but 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. Brussels has ruled that the work of the American 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, they said, has "the characteristics of lighting fittings … and is therefore to be classified … as wall lighting fittings".

The ruling overturns an earlier UK 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 EU are liable to full VAT, which rises to 20% on 1 January. As sculpture the pieces would be subject to only 5% VAT.

The ruling also affects the work of Bill Viola, another American, 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.

Not the commission, which found: "It is not the installation that constitutes a 'work of art' but the result of the operations (the light effect) carried out by it."

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.

The legal battle over whether the often banal ingredients of modern art, particularly light, sound and video pieces, are themselves to be regarded as art has raged for years. The present bout began in 2006, when the Haunch of Venison gallery in London, which represented both artists, imported components for six video pieces by Viola and a light sculpture by Flavin.

The UK challenged their classification as art and tried to slap a £36,000 VAT bill on the gallery. That bill was torn up two years later when the Haunch of Venison won on appeal to the VAT and duties tribunal, which ruled that the pieces were indeed art. That verdict has in turn now been overturned by the commission.

Both artists are now represented by Blain Southern, a new gallery set up this year by the original founders of Haunch of Venison. A spokesman for the gallery said the partners are now taking advice from trade bodies including the Society of London Art Dealers.

However Pierre Valentin, the lawyer who challenged the original customs ruling on behalf of the Haunch of Venison, was astounded. "To suggest, for example, that a work by Dan Flavin is a work of art only when it is switched on, is comical," he told the Art Newspaper.

"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."

The "call that art, I could knock that up in my shed in five minutes" argument has probably raged since the first caveman sketched a red clay bison on a rock wall. But there is one particularly famous precedent for the commission's decision, in a row over the work of the Romanian sculptor Constantin Brancusi. In 1926 the American collector and photographer Edward Steichen bought a bronze version of his tall slender Bird In Space, and attempted to import it to the US. Since it had neither head, feet nor feathers, US customs refused to accept it as a zero-rated work of art, and instead classified it as "a manufacture of metal ... held dutiable at 40%".

Steichen paid the $600 dues, but he and the sculptor then went to court – with his legal fees usefully paid by the millionaire collector Peggy Guggenheim – and succeeded, the EC might like to note, in having the decision overturned. In 1928 the judge eventually ruled that "while some difficulty might be encountered in associating it with a bird, it is nevertheless pleasing to look at and highly ornamental". Steichen got his money back.

The belief that all modern art is rubbish has frequently been even more dramatically demonstrated, less through bureaucracy than devastating human error.

In 2007 a London art storage company was ordered to pay £350,000 compensation to a Swiss collector after an Anish Kapoor sculpture somehow ended up in a skip.

In 2000 the packaging in which a drawing by Lucian Freud, valued at £100,000, was sent to Sotheby's auction house was put through a shredder. Unfortunately the drawing was still inside it.

In 2004 the Tate was mortified when a cleaner innocently threw out an overflowing rubbish bag. It was part of an installation by Gustav Metzger, aptly entitled Recreation of First Public Demonstration of Auto-Destructive Art.

Whether florescent tubes are ultimately ruled rubbish, hardware or the skeletons of magical art remains to be seen.

Meanwhile the ruling should be a great satisfaction to "Barney", one of the few dissenting voices over the Hayward's Dan Flavin exhibition, who posted on artistsandmakers.com: "It was like walking around the lighting department of B&Q."