61982CJ0300_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 300/82
REFERENCE TO THE COURT PURSUANT TO ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT ( FINANCE COURT ) DUSSELDORF, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
GESAMTHOCHSCHULE ( POLYTECHNIC/UNIVERSITY ) ESSEN
AND
HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) DUSSELDORF
Subject of the case
ON THE INTERPRETATION OF REGULATION ( EEC ) 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 ), AS AMENDED BY REGULATION NO 1027/79 OF 8 MAY 1979 ( OFFICIAL JOURNAL 1979, L 134, P . 1 ),
Grounds
1 BY ORDER OF 20 OCTOBER 1982 WHICH WAS RECEIVED AT THE COURT ON 3 DECEMBER 1982, THE FINANZGERICHT ( FINANCE COURT ) DUSSELDORF 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 ( EEC ) 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 VOLUME 131, 1952, NO 1734, PP . 26 ET SEQ .).
2 THE QUESTION AROSE IN THE COURSE OF AN ACTION BROUGHT BEFORE THE NATIONAL COURT BY THE GESAMTHOCHSCHULE ( POLYTECHNIC/UNIVERSITY ) ESSEN FOR THE ANNULMENT OF THE DECISION OF THE HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) DUSSELDORF REFUSING EXEMPTION FROM CUSTOMS DUTIES ON THE IMPORTATION OF PLASTIC BLOCKS KNOWN AS ' ' PHANTOM MATERIAL A-150 ' ', ORIGINATING IN THE UNITED STATES OF AMERICA AND INTENDED BY THE GESAMTHOCHSCHULE TO SIMULATE HUMAN MUSCLE TISSUE TO ENABLE THE EFFECT OF RADIATION ON THE HUMAN ORGANISM TO BE MEASURED, ON THE GROUND THAT THE MATERIAL WAS NOT A SCIENTIFIC INSTRUMENT OR APPARATUS WITHIN THE MEANING OF REGULATION NO 1798/75 .
3 THE PLAINTIFF IN THE MAIN ACTION CLAIMED BEFORE THE NATIONAL COURT THAT THE MATERIAL IN QUESTION OUGHT TO BE REGARDED AS A ' ' SCIENTIFIC INSTRUMENT OR APPARATUS ' '
WITHIN THE MEANING OF THE ABOVE-MENTIONED REGULATION, SINCE IT CONSTITUTED NOT THE OBJECT BUT THE INSTRUMENT OF RESEARCH, BEING USED FOR THE NEUTRON DOSIMETERS EMPLOYED IN BIOLOGY AND MEDICINE, AND ALSO BECAUSE IT WAS ONLY BY USING THE MATERIAL THAT IT WAS POSSIBLE TO ASSESS AND COMPARE, AT THE INTERNATIONAL LEVEL, THE RESULTS OBTAINED FROM RESEARCH .
4 ON THE REJECTION OF THAT ARGUMENT BY THE HAUPTZOLLAMT, THE FINANZGERICHT DUSSELDORF REFERRED TO THE COURT FOR A PRELIMINARY RULING THE FOLLOWING QUESTION :
' ' IN REGULATION ( EEC ) NO 1798/75 OF THE COUNCIL OF 10 JULY 1975, IS THE TERM ' SCIENTIFIC INSTRUMENT '
TO BE INTERPRETED BROADLY SO AS TO INCLUDE SCIENTIFIC AIDS AND WORKING MATERIALS SUCH AS PHANTOM MATERIAL A-150, A SUBSTANCE MADE UP OF PLASTIC BLOCKS AND INTENDED FOR RADIOLOGICAL RESEARCH?
' '
5 IT APPEARS FROM THE PAPERS BEFORE THE COURT THAT THE MATERIAL IN QUESTION HAS A SPECIAL COMPOSITION RESULTING FROM DISCOVERIES OF SCIENTIFIC RESEARCH AND IS MANUFACTURED BY ONLY ONE UNDERTAKING WHICH IS SITUATED OUTSIDE THE
COMMUNITY . ON BEING EXPOSED TO RADIATION IT PRODUCES, OWING TO ITS COMPOSITION, REACTIONS SIMILAR TO THOSE OF HUMAN TISSUE . FOR THAT REASON IT IS USED IN SCIENTIFIC RESEARCH PROJECTS UNDERTAKEN IN THE INTERESTS OF HUMAN HEALTH AS A MEANS OF MEASURING THE EFFECT OF NEUTRON RAYS ON HUMAN TISSUE .
6 THE USE OF THE MATERIAL IN QUESTION ALSO SERVES TO FACILITATE THE ASSESSMENT AND COMPARISON, AT THE INTERNATIONAL LEVEL, OF THE RESULTS OF SCIENTIFIC RESEARCH PROJECTS IN THE FIELD OF NEUTRON DOSIMETRY .
7 CONSEQUENTLY, THE QUESTION REFERRED TO THE COURT ASKS WHETHER THE TERM ' ' SCIENTIFIC INSTRUMENT ' '
IN ARTICLE 3 OF REGULATION NO 1798/75 MUST BE INTERPRETED AS INCLUDING A MATERIAL SUCH AS THE ONE KNOWN AS PHANTOM MATERIAL A-150, MADE UP OF PLASTIC BLOCKS AND INTENDED FOR RADIOLOGICAL RESEARCH, INASMUCH AS THAT MATERIAL FULFILS AN ESSENTIAL FUNCTION AS AN INDISPENSABLE MEANS OF OBTAINING CERTAIN RESULTS FROM LONG-TERM SCIENTIFIC RESEARCH .
8 IT SHOULD BE NOTED THAT NEITHER THE FLORENCE AGREEMENT NOR REGULATION NO 1798/75 CONTAINS A DEFINITION OF THE TERM ' ' SCIENTIFIC INSTRUMENT ' '
FOR THE PURPOSES OF ARTICLE 3 ( 1 ) OF THE SAID REGULATION . A DEFINITION MUST THEREFORE BE SOUGHT IN THE PURPOSE OF THAT PROVISION, CONSIDERED IN THE LIGHT OF ALL THE PROVISIONS OF, AND THE PREAMBLE TO, REGULATION NO 1798/75 .
9 SINCE, ACCORDING TO THE FIRST RECITAL IN THE PREAMBLE TO THAT REGULATION, IT IS NECESSARY TO ALLOW ' ' BY ALL POSSIBLE MEANS ' '
THE ADMISSION FREE OF CUSTOMS DUTIES OF EDUCATIONAL, SCIENTIFIC AND CULTURAL MATERIALS, THE TERM ' ' SCIENTIFIC INSTRUMENT ' '
IN ARTICLE 3 ( 1 ) OF REGULATION NO 1798/75 CANNOT BE GIVEN A NARROW INTERPRETATION .
10 THAT CONCLUSION IS CONFIRMED BY THE PREAMBLE TO THE FLORENCE AGREEMENT, WHICH IS BASED ON THE IDEA ' ' THAT THE FREE EXCHANGE OF IDEAS AND KNOWLEDGE AND, IN GENERAL, THE WIDEST POSSIBLE DISSEMINATION OF THE DIVERSE FORMS OF SELF-EXPRESSION USED BY CIVILIZATIONS ARE VITALLY IMPORTANT BOTH FOR INTELLECTUAL PROGRESS AND INTERNATIONAL UNDERSTANDING ' '
AND ' ' THAT THIS INTERCHANGE IS
ACCOMPLISHED PRIMARILY BY MEANS OF BOOKS, PUBLICATIONS AND EDUCATIONAL, SCIENTIFIC AND CULTURAL MATERIALS ' ' .
11 IN THAT CONTEXT IT IS IMPOSSIBLE TO FIND SUPPORT FOR A NARROW INTERPRETATION IN THE FACT THAT ARTICLE 2 OF REGULATION NO 1798/75 REFERS GENERALLY TO SCIENTIFIC ' ' MATERIALS ' '
LISTED IN ANNEX II, WHEREAS ARTICLE 3 ( 1 ) RELATES TO ' ' SCIENTIFIC INSTRUMENTS AND APPARATUS ' '
NOT INCLUDED IN ARTICLE 2 .
12 ARTICLE 3 IN FACT CONTAINS TWO ADDITIONAL CRITERIA WHICH PERMIT A SUFFICIENTLY PRECISE DEFINITION TO BE GIVEN OF A SCIENTIFIC INSTRUMENT WHICH MAY BE ADMITTED FREE OF CUSTOMS DUTY, NAMELY THAT IT SHOULD BE INTENDED EXCLUSIVELY FOR SCIENTIFIC RESEARCH OR EDUCATION AND THAT IT IS NOT BEING MANUFACTURED IN THE COMMUNITY . IN VIEW OF THOSE TWO CONDITIONS FOR THE GRANT OF EXEMPTION, IT IS INAPPROPRIATE TO INTERPRET THE CONCEPT IN QUESTION IN A MANNER CONTRARY TO THE PURPOSE OF REGULATION NO 1798/75 AS SET OUT ABOVE .
13 MOREOVER, IT SHOULD BE NOTED THAT ARTICLE 3 OF REGULATION NO 1798/75 WAS AMENDED BY REGULATION NO 1027/79 ( OFFICIAL JOURNAL 1979, L 134, P . 1 ) AND THAT ARTICLE 3 ( 3 ) AS AMENDED GIVES A GENERAL DEFINITION OF THE TERM ' ' SCIENTIFIC INSTRUMENT OR APPARATUS ' ', FOLLOWING IN PART THE EXAMPLE SET BY THE COURT IN ITS JUDGMENT OF 2 FEBRUARY 1978 IN CASE 72/77, UNIVERSITEITSKLINIEK UTRECHT V INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN, ( 1978 ) ECR 189 .
14 ARTICLE 3 ( 3 ) AS AMENDED IS NOT APPLICABLE IN THIS CASE, SINCE THE FACTS UPON WHICH THE DISPUTE IN THE MAIN ACTION ARE BASED OCCURRED BEFORE THE AMENDMENT OF REGULATION NO 1798/75 ; EVEN SO IT CANNOT JUSTIFY SUCH A NARROW INTERPRETATION .
15 NOR DOES THE ABOVE-MENTIONED JUDGMENT OF THE COURT PREVENT THE TERM ' ' SCIENTIFIC INSTRUMENT ' '
FROM BEING INTERPRETED WIDELY ENOUGH TO INCLUDE MATERIALS MANUFACTURED ON THE BASIS OF SCIENTIFIC DISCOVERIES AND USED NOT AS
AN OBJECT BUT AS A MEANS OF SCIENTIFIC RESEARCH . THAT IS IN ANY EVENT TRUE IN THE CASE OF MATERIALS SUCH AS THOSE IN THIS CASE WHICH CANNOT EASILY BE REPLACED AND WHICH ARE THEREFORE USED FOR LONG-TERM SCIENTIFIC RESEARCH .
16 THESE FINDINGS ARE SUFFICIENT TO GIVE A REPLY TO THE NATIONAL COURT, WITHOUT ITS BEING NECESSARY TO PROVIDE HERE AN EXHAUSTIVE DEFINITION OF A SCIENTIFIC INSTRUMENT .
17 FINALLY, IN RELATION TO THE COMMISSION ' S OPINION THAT CHEMICAL SUBSTANCES CANNOT FALL WITHIN THE DEFINITION OF A SCIENTIFIC INSTRUMENT, IT SHOULD BE NOTED THAT THIS CASE IS NOT CONCERNED WITH ANY CHEMICAL SUBSTANCE BUT WITH A MATERIAL USED AS A TOOL IN A PARTICULAR SCIENTIFIC CONTEXT . FOR THE SAME REASON IT IS ALSO UNNECESSARY TO CONSIDER THE COMMISSION ' S ARGUMENT THAT CHEMICAL SUBSTANCES ARE COVERED FOR THE FIRST TIME IN THE MOST RECENT VERSION OF REGULATION NO 1798/75, NAMELY IN ARTICLE 60 OF COUNCIL REGULATION NO 918/83 OF 28 MARCH 1983 ( OFFICIAL JOURNAL 1983, L 105, P . 1 ).
18 THE ANSWER TO THE QUESTION SUBMITTED TO THE COURT BY THE FINANZGERICHT DUSSELDORF SHOULD THEREFORE BE THAT THE TERM ' ' SCIENTIFIC INSTRUMENT ' '
IN ARTICLE 3 OF REGULATION NO 1798/75 MUST BE INTERPRETED AS INCLUDING A MATERIAL SUCH AS THE ONE KNOWN AS PHANTOM MATERIAL A-150, MADE UP OF PLASTIC BLOCKS AND INTENDED FOR RADIOLOGICAL RESEARCH, INASMUCH AS THE MATERIAL FULFILS AN ESSENTIAL FUNCTION AS AN INDISPENSABLE MEANS OF OBTAINING CERTAIN RESULTS FROM LONG-TERM SCIENTIFIC RESEARCH .
Decision on costs
COSTS
19 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 PROCEEDINGS 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 DUSSELDORF BY ORDER OF 20 OCTOBER 1982 HEREBY RULES :
THE TERM ' ' SCIENTIFIC INSTRUMENT ' '
IN ARTICLE 3 OF REGULATION NO 1798/75 MUST BE INTERPRETED AS INCLUDING A MATERIAL SUCH AS THE ONE KNOWN AS PHANTOM MATERIAL A-150, MADE UP OF PLASTIC BLOCKS AND INTENDED FOR RADIOLOGICAL RESEARCH, INASMUCH AS THE MATERIAL FULFILS AN ESSENTIAL FUNCTION AS AN INDISPENSABLE MEANS OF OBTAINING CERTAIN RESULTS FROM LONG-TERM SCIENTIFIC RESEARCH .