The question may have confounded many of the most learned minds and passionate of experts, yet it appears that only the European Commission is able to provide a definitive answer: what counts as art?

At the end of December, the European Commission determined that, as the work of the late sculptor, Dan Flavin, has “the characteristics of lighting fittings…[it] is therefore to be classified … as wall lighting fittings,” rather than art. The new decision equally impacts fellow American, Bill Viola, whose video-sound installation, according to the European Commission, cannot be classified as a 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”.

Downgrading the artwork to mere electrical hardware will not only enrage devotees of the artist, but will have more tangible, potentially devastating consequences on its continued exhibition. Yet this outpouring of wisdom from the European Commission comes not in the context of its cultural heritage policy, but to bolster a far more pecuniary agenda. Pilfering the work of its status as ‘art’ hikes its VAT levy from 5% to the new level of 20%, brought into force on 1 January 2011.

Identifying what counts as art is undoubtedly elusive, in some cases more than others; in 2004, a cleaner at the Tate threw out an overflowing rubbish bag, unaware that it was part of a Gustav Metzger installation, and three years later a London art storage company was ordered to pay £350,000 to a collector after his Anish Kapoor sculpture was discarded in a skip. Such confusion serves only to further undermine the Commission’s reasoning. The European Commission would do well to abandon its self-styled role of critic-cometax- man and heed the lament of Toby Kamps (the Menil Collection curator): “There’s some kind of crazy literalness going on in both instances. If it wasn’t art, it was trash at best.

The European Commission’s decision rankles on several levels. Firstly, the ruling explicitly overturns the judgement of the UK’s VAT and duties tribunal. In 2006, London’s Haunch of Venison art gallery faced a £36,000 VAT bill from the British tax authorities for importing component pieces by Flavin and Viola. After two years of arduouslegal battles, in a ground-breaking decision, Haunch of Venison won its case against the UK Customs, and its bill was substantially reduced. Not only that, but Pierre Valein, the lawyer who acted for both artists during the 2008 case and is currently advising them on the Commission’s latest ruling, contends that the “absurd” decision “conflicts with the jurisprudence” of the EU’s own court, the European Court of Justice.

The decision also betrays a deep hypocrisy at the heart of the EU’s Culture programme. The EU cannot fairly claim to promote the awareness of cultural items of European significance without accepting that art, of whatever form, should not conform to arbitrary territorial boundaries. Appreciation and recognition of European art is in no way enhanced by effectively placing an embargo on art originating elsewhere.

The Commission has adopted an intolerably Eurocentric attitude, seemingly insensible to the consequences. Any museum or gallery bringing works by these renowned sculptors into the country from outside the EU will have no choice but to pay this higher levy, and galleries may have to raise prices to cope. That is, of course, if it remains viable to show such works at all. And it is not just museums that will be affected; St Paul’s Cathedral has commissioned two altar pieces from Viola, due to be unveiled early this year. Pricing non-European art out of the market in this way cannot but impede the flow of culture and inspiration across international borders. Moreover, more than seven million Europeans are employed by cultural industries within the EU, and many would be directly affected were galleries forced to close.

Thirdly, the ruling demonstrates the Commission’s seemingly rapacious desire to have its cake and eat it. Indeed, its reasoning seems farcically incongruous. On the one hand the Commission says that the pieces as “wall lighting fittings”, such as one might find in any European home; on the other, it wants to value them at £180,000. It is improbable to the point of absurdity that any fluorescent tubes would be worth £180,000 unless they were in fact art.

Chief conservator at the Menil Collection, Brad Epley, described Flavin’s work as “irreplaceable”. Each of Flavin’s light-based works are accompanied by an official certificate, guaranteeing that the Flavin estate will reconstitute a piece if needed. “Without the certificate”, he says, “it’s not considered a Flavin, so you can’t just take a fluorescent bulb off a shelf.” Whilst perhaps Duchamp’s ‘Fountain’, (a mass-produced china urinal) would need almost no alteration, ultimately, all art could potentially be deconstructed into its constituent components (though dismissing a Renoir as merely paint and canvass may stretch even the unfathomable sagacity of the European Commission). Practicalities aside, however, a Renoir is indisputably more valuable as a Renoir than as a tin of Dulux. The Commission wishes to value Flavin’s pieces as art, but tax them as lights. However, this deception is unnecessary; taking a more honest approach, it would be more financially beneficial for the Commission to accept 5% of the art’s true value than 20% of the cost of regular light fitments.