61983CJ0045_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 45/83
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT MUNCHEN ( FINANCE COURT, MUNICH ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
LUDWIG-MAXIMILIANS-UNIVERSITAT MUNCHEN ( LUDWIG-MAXIMILIAN UNIVERSITY OF MUNICH )
AND
HAUPTZOLLAMT MUNCHEN-WEST ( PRINCIPAL CUSTOMS OFFICE, WEST MUNICH )
Subject of the case
ON THE INTERPRETATION OF REGULATION NO 1798/75 OF THE COUNCIL OF 10 JULY 1975 ON THE IMPORTATION FREE OF COMMON CUSTOMS TARIFF DUTIES OF EDUCATIONAL, SCIENTIFIC AND CULTURAL MATERIALS ( OFFICIAL JOURNAL 1975, L 184, P . 1 ),
Grounds
1 BY AN ORDER OF 8 MARCH 1983 WHICH WAS RECEIVED AT THE COURT ON 24 MARCH 1983, THE FINANZGERICHT MUNCHEN ( FINANCE COURT MUNICH ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 3 OF REGULATION NO 1798/75 OF THE COUNCIL OF 10 JULY 1975 ON THE IMPORTATION FREE OF COMMON CUSTOMS TARIFF DUTIES OF EDUCATIONAL, SCIENTIFIC AND CULTURAL MATERIALS ( OFFICIAL JOURNAL 1975, L 184, P . 1 ), ADOPTED IN ORDER TO IMPLEMENT THE FLORENCE AGREEMENT ( UNITED NATIONS TREATY SERIES VOL . 131, 1952, NO 1734, PP . 26 ET SEQ .).
2 THE QUESTION AROSE IN AN ACTION BROUGHT BEFORE THE NATIONAL COURT BY LUDWIG-MAXIMILIANS-UNIVERSITAT MUNCHEN ( LUDWIG-MAXIMILIAN UNIVERSITY OF MUNICH ) FOR THE ANNULMENT OF THE DECISION OF THE HAUPTZOLLAMT MUNCHEN-WEST ( PRINCIPAL CUSTOMS OFFICE, WEST MUNICH ) REFUSING TO GRANT AN EXEMPTION FROM CUSTOMS DUTIES ON THE IMPORTATION OF GLASS FLASKS, DESIGNED FOR THE PRESERVATION AND CULTIVATION OF TISSUE CULTURES OF HUMAN CANCER CELLS IN STERILE CONDITIONS, ON THE GROUND THAT THEY WERE NOT SCIENTIFIC INSTRUMENTS OR APPARATUS WITHIN THE MEANING OF THE ABOVE-MENTIONED REGULATION .
3 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT THE GLASS FLASKS AT ISSUE ARE MADE OF FLINT GLASS, A MATERIAL WHICH EVEN DURING LONG STORAGE DISCHARGES NO SUBSTANCES INTO THE ALKALINE MEDIUM, AND IN ADDITION HAVE A FLAT BASE WHICH ENABLES THE CELLS TO GROW AND A SPECIAL LIP ; THEY ARE BOTTLES MADE SPECIFICALLY FOR RESEARCH INTO TISSUE CULTURE MEDIA WHICH ENABLE THE SOLUTIONS TO BE POURED WITHOUT THEIR RUNNING DOWN THE SIDE OF THE FLASK, THUS MEETING THE STRICTEST REQUIREMENTS REGARDING STERILITY .
4 THE PLAINTIFF IN THE MAIN ACTION CLAIMED BEFORE THE NATIONAL COURT THAT THE ARTICLES IN QUESTION SHOULD BE REGARDED AS ' ' SCIENTIFIC INSTRUMENTS OR APPARATUS ' '
WITHIN THE MEANING OF THE ABOVE-MENTIONED REGULATION, SINCE THE WORD ' ' INSTRUMENT ' '
IS DEFINED IN SPECIALIZED DICTIONARIES AS A MEANS, UTENSIL OR PRECISION TOOL, AND THE GLASS FLASKS WERE UTENSILS ( ' ' GERATE ' ' ) WITHIN THE MEANING OF THE REGULATION .
5 THE HAUPTZOLLAMT, ON THE OTHER HAND, CONTENDED THAT THE FLASKS WERE NOT INSTRUMENTS, ON THE GROUND THAT AN INSTRUMENT IN SOME WAY ACTIVELY AFFECTS THE ARTICLE OR MATERIAL TO BE TREATED WHEREAS THE GLASS FLASKS SERVE IN A MERELY PASSIVE MANNER, NOR WERE THEY UTENSILS, BUT WERE INSTEAD EQUIPMENT .
6 CONSEQUENTLY, THE FINANZGERICHT MUNCHEN REFERRED TO THE COURT THE FOLLOWING QUESTION :
' ' HOW IS THE FIRST SENTENCE OF ARTICLE 3 ( 1 ) OF REGULATION ( EEC ) NO 1798/75 OF 10 JULY 1975 ( IN ITS ORIGINAL VERSION ) TO BE INTERPRETED AS REGARDS THE TERMS ' INSTRUMENTS '
AND ' APPARATUS ' ? DO THEY INCLUDE GOODS OF EVERY KIND OR ONLY THOSE ARTICLES HAVING A MECHANISM OR OTHER DEVICES BY MEANS OF WHICH A MATERIAL MAY BE WORKED ON, PROCESSED OR OTHERWISE TREATED, OR WHEREBY GIVEN PHYSICAL OR CHEMICAL CONDITIONS OR PHENOMENA ( FOR EXAMPLE, TEMPERATURE OR VACUUM ) MAY BE EITHER PRODUCED AND CONTROLLED OR PERCEIVED AND MEASURED? WHAT OTHER CRITERIA, IF ANY, SERVE TO DEFINE SUCH TERMS?
' '
7 IT IS CLEAR FROM THE PAPERS BEFORE THE COURT THAT THIS QUESTION ASKS IN SUBSTANCE WHETHER THE TERMS ' ' INSTRUMENTS ' '
AND ' ' APPARATUS ' '
IN THE FIRST SENTENCE OF ARTICLE 3 ( 1 ) OF REGULATION NO 1798/75 MUST BE INTERPRETED AS INCLUDING MATERIALS SUCH AS RECEPTACLES INTENDED FOR THE PRESERVATION, STORAGE
OR CULTIVATION OF A SUBSTANCE ON WHICH RESEARCH IS CARRIED OUT AND WHICH PLAYS A MERELY PASSIVE ROLE IN THE SCIENTIFIC RESEARCH PROCESS .
8 FIRST, IT SHOULD BE STATED THAT NEITHER THE FLORENCE AGREEMENT NOR REGULATIONS NO 1798/75 CONTAINS A DEFINITION OF THE TERMS ' ' INSTRUMENTS ' '
AN ' ' APPARATUS ' '
FOR THE PURPOSES OF ARTICLE 3 ( 1 ) OF THE REGULATION . HOWEVER, AS THE COURT HAS ALREADY STATED, IT FOLLOWS IN PARTICULAR FROM THE FIRST RECITAL IN THE PREAMBLE TO THAT REGULATION, WHICH PROVIDES THAT IT IS NECESSARY TO ALLOW, ' ' BY ALL POSSIBLE MEANS ' ', THE ADMISSION FREE OF CUSTOMS DUTIES OF EDUCATIONAL, SCIENTIFIC AND CULTURAL MATERIALS, THAT THE TERMS ' ' INSTRUMENTS ' '
AND ' ' APPARATUS ' '
IN ARTICLE 3 ( 1 ) OF REGULATION NO 1798/75 CANNOT BE GIVEN A NARROW INTERPRETATION .
9 NEVERTHELESS, THE TERMS IN QUESTION MUST BE DEFINED IN SUCH A WAY THAT THE EXEMPTION FROM CUSTOMS DUTIES COVERS ONLY ITEMS POSSESSING OBJECTIVE CHARACTERISTICS WHICH MAKE THEM PARTICULARLY SUITABLE FOR PURE SCIENTIFIC RESEARCH ( CF . JUDGMENT OF 2 FEBRUARY 1978 IN CASE 72/77, UNIVERSITEITSKLINIEK UTRECHT V INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN, ( 1978 ) ECR 189 ).
10 SUCH SUITABILITY MUST THEREFORE BE INHERENT IN THE ITEM FOR WHICH EXEMPTION IS REQUESTED . IT FOLLOWS THAT EXEMPTION FROM DUTY CAN BE GRANTED ONLY IN RELATION TO ITEMS WHICH, BY VIRTUE OF THEIR PARTICULAR TECHNICAL STRUCTURE AND FUNCTIONING, THEMSELVES SERVE DIRECTLY AS A MEANS OF SCIENTIFIC RESEARCH .
11 ON THE OTHER HAND, AN ITEM WHICH IS USED NOT AS A MEANS BUT ONLY AS AN OBJECT OF SCIENTIFIC RESEARCH CANNOT BE DESCRIBED AS A SCIENTIFIC INSTRUMENT OR APPARATUS ; INDEED, WHERE RESEARCH IS CARRIED OUT NOT BY MEANS OF THAT ITEM BUT ON IT, THE ITEM PLAYS ONLY A PURELY PASSIVE ROLE IN THE RESEARCH PROCESS .
12 A FORTIORI, RECEPTACLES WHICH ARE USED ONLY TO PRESERVE AND STORE A SUBSTANCE ON WHICH RESEARCH IS CARRIED OUT CANNOT BE DESCRIBED AS SCIENTIFIC INSTRUMENTS OR APPARATUS . EVEN THE FACT THAT THEY ARE SUITABLE FOR THE PRESERVATION AND CULTIVATION OF TISSUE IN A STERILE MEDIUM CANNOT CONFER UPON THEM THE
CHARACTER OF SCIENTIFIC INSTRUMENTS OR APPARATUS ; THAT CIRCUMSTANCE DOES NOT ALTER THE ESSENTIAL CHARACTERISTIC OF A RECEPTABLE, THAT IS TO SAY THE FACT THAT ITS USE IS PASSIVE .
13 AS REGARDS THE FACT THAT THE GERMAN VERSION OF ARTICLE 3 ( 1 ) OF REGULATION NO 1798/75 CONTAINS NOT ONLY THE WORDS ' ' INSTRUMENTS ' '
AND ' ' APPARATUS ' '
BUT ALSO THE WORD ' ' GERATE ' '
( UTENSILS ), IT SHOULD BE NOTED THAT THAT CANNOT CONFER UPON THAT LINGUISTIC VERSION A WIDER MEANING THAT THAT IMPLIED BY THE OTHER VERSIONS WHICH DO NOT CONTAIN THAT WORD . THEREFORE NO SPECIAL SIGNIFICANCE SHOULD BE ATTRIBUTED TO THE WORD ' ' GERATE ' '
IN THE GERMAN TEXT .
14 THE ANSWER TO THE QUESTION ASKED BY THE FINANZGERICHT MUNCHEN SHOULD THEREFORE BE THAT THE FIRST SENTENCE OF ARTICLE 3 ( 1 ) OF REGULATION NO 1798/75 MUST BE INTERPRETED AS NOT INCLUDING ITEMS SUCH AS RECEPTACLES WHICH ARE INTENDED FOR THE PRESERVATION, STORAGE OR CULTIVATION OF A SUBSTANCE ON WHICH RESEARCH IS CARRIED OUT AND WHICH PLAY ONLY A PASSIVE ROLE IN THE SCIENTIFIC RESEARCH PROCESS .
Decision on costs
COSTS
15 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER ),
IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE FINANZGERICHT MUNCHEN BY ORDER OF 8 MARCH 1983, HEREBY RULES :
THE FIRST SENTENCE OF ARTICLE 3 ( 1 ) OF REGULATION NO 1798/75 MUST BE INTERPRETED AS NOT INCLUDING ITEMS SUCH AS RECEPTACLES WHICH ARE INTENDED
FOR THE PRESERVATION, STORAGE OR CULTIVATION OF A SUBSTANCE ON WHICH RESEARCH IS CARRIED OUT AND WHICH PLAY ONLY A PASSIVE ROLE IN THE SCIENTIFIC RESEARCH PROCESS .