61983CJ0236_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 236/83
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
UNIVERSITY OF HAMBURG
AND
HAUPTZOLLAMT MUNCHEN-WEST ( PRINCIPAL CUSTOMS OFFICE, MUNICH-WEST ),
Subject of the case
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,
Grounds
1 BY AN ORDER OF 6 OCTOBER 1983, WHICH WAS RECEIVED AT THE COURT REGISTRY ON 20 OCTOBER 1983, THE FINANZGERICHT MUNCHEN ( FINANCE COURT, MUNICH ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO SETS OF QUESTIONS CONCERNING 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 ) WHICH WAS ADOPTED PURSUANT TO THE ' ' FLORENCE AGREEMENT ' '
( AGREEMENT OF THE IMPORTATION OF EDUCATIONAL, SCIENTIFIC AND CULTURAL MATERIALS, OPENED FOR SIGNATURE AT LAKE SUCCESS, NEW YORK, ON 22 NOVEMBER 1950, UNITED NATIONS TREATY SERIES, VOL . 131, P . 27 ).
2 IT APPEARS FROM THE ORDER FOR REFERENCE THAT ON 23 SEPTEMBER 1977 THE UNIVERSITY OF HAMBURG PRESENTED TO THE HAUPTZOLLAMT MUNCHEN-WEST FOR CUSTOMS CLEARANCE TWO PRECISION ROTORS AND A MULTIPLE CONTACT SWITCH UNIT ORIGINATING IN THE UNITED STATES OF AMERICA AND INTENDED FOR INCORPORATION IN AN ANALYTICAL ULTRACENTRIFUGE CONSTRUCTED FOR THE UNIVERSITY BY A FIRM IN HANNOVER . THE UNIVERSITY OF HAMBURG APPLIED FOR AND WAS GRANTED DUTY-FREE ADMISSION IN RESPECT OF THOSE MATERIALS UNDER REGULATION NO 1798/75 .
3 HOWEVER, AFTER RECONSIDERING THE MATTER, THE HAUPTZOLLAMT TOOK A DIFFERENT VIEW AND, BY DECISION OF 8 NOVEMBER 1979, DEMANDED PAYMENT OF CUSTOMS DUTIES . THE HAUPTZOLLAMT CONSIDERED THAT THE ROTORS AND THE MULTIPLE CONTACT SWITCH UNIT, VIEWED IN THEMSELVES, COULD NOT BE REGARDED AS SCIENTIFIC IN
STRUMENTS OR APPARATUS WITHIN THE MEANING OF ARTICLE 3 ( 1 ) OF REGULATION NO 1798/75 . NOR, IN ITS VIEW, COULD THEY BE REGARDED AS COMPONENTS, SPARE PARTS OR ACCESSORIES ( HEREINAFTER REFERRED TO AS ' ' COMPONENTS ' '
REQUIRED FOR THE OPERATION OF SCIENTIFIC INSTRUMENTS AND APPARATUS WITHIN THE MEANING OF ARTICLE 3 ( 2 ) OF THAT REGULATION .
4 THE UNIVERSITY OF HAMBURG BROUGHT AN ACTION AGAINST THAT DECISION BEFORE THE FINANZGERICHT . IN SUPPORT OF ITS ACTION, THE UNIVERSITY OF HAMBURG CONTENDED THAT THE IMPORTED MATERIALS IN THEMSELVES WERE, IN THE LIGHT OF THEIR OBJECTIVE CHARACTERISTICS, OF A SCIENTIFIC CHARACTER . ACCORDINGLY, AS FAR AS THE EXEMPTION OF THOSE COMPONENTS WAS CONCERNED, THERE WAS NO REASON TO DRAW A DISTINCTION ACCORDING TO WHETHER THE PRINCIPAL APPARATUS WAS IMPORTED FREE OF DUTY OR, INSTEAD, WAS MANUFACTURED WITHIN THE TERRITORY OF THE COMMUNITY . THE WORDING OF ARTICLE 3 OF REGULATION NO 1798/75 DID NOT RULE OUT SUCH A SOLUTION .
5 THE HAUPTZOLLAMT DISPUTED THE SCIENTIFIC CHARACTER OF THE COMPONENTS IN QUESTION WHICH, IN THE LIGHT OF THEIR CONSTRUCTION, CONSTITUTED SPECIFIC COMPONENTS OF A CENTRIFUGE AND HAD NO AUTONOMOUS FUNCTION INDEPENDENTLY OF THAT PERFORMED BY THE CENTRIFUGE . NOR, IN THE HAUPTZOLLAMT ' S VIEW, COULD THOSE COMPONENTS BE IMPORTED FREE OF CUSTOMS DUTY UNDER ARTICLE 3 ( 2 ) OF REGULATION NO 1798/75 SINCE THAT PROVISION GRANTED EXEMPTION ONLY IN RESPECT OF COMPONENTS REQUIRED FOR THE OPERATION OF SCIENTIFIC INSTRUMENTS AND APPARATUS WHICH HAD THEMSELVES BEEN IMPORTED FREE OF DUTY . THEREFORE THAT PROVISION COULD NOT APPLY TO COMPONENTS WHICH WERE INTENDED TO BE INCORPORATED IN A UNIT OF EQUIPMENT CONSTRUCTED IN THE COMMUNTIY .
6 TO ENABLE IT TO DECIDE THAT DISPUTE, THE FINANZGERICHT REFERRED THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :
I . HOW IS ARTICLE 3 ( 1 ) OF REGULATION NO 1798/75 OF 10 JULY 1975 ( IN ITS ORIGINAL VERSION ) TO BE INTERPRETED AS REGARDS THE PHRASE ' ' SCIENTIFIC INSTRUMENTS AND APPARATUS ' ' ?
1 . CAN IT ALSO INCLUDE MATERIALS WHICH ARE COMPONENTS, SPARE PARTS OR ACCESSORIES OF A UNIT OF EQUIPMENT?
IF QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE :
2.DOES THE PHRASE ' ' INSTRUMENTS AND APPARATUS ' '
INCLUDE MATERIALS OF ALL KINDS OR ONLY THOSE WHICH ARE SO DESIGNED THAT THEY CAN BE USED FOR
PERFORMING A SPECIFIC OPERATION OR FOR PRODUCING SPECIFIC EFFECTS IN RELATION TO OTHER MATERIALS? WHAT OTHER CRITERIA, IF ANY, ARE DECISIVE FOR THE DEFINITION OF THAT PHRASE?
3.IN THE CASE OF MATERIALS WHICH ARE COMPONENTS, SPARE PARTS OR ACCESSORIES OF A UNIT OF EQUIPMENT, DOES THE QUESTION WHETHER THEY ARE INSTRUMENTS OR APPARATUS DEPEND ON WHETHER, IN RELATION TO THAT UNIT OF EQUIPMENT OR ITS OTHER COMPONENTS, THEY ARE
( A ) STRUCTURALLY AUTONOMOUS ( FOR EXAMPLE, THEY HAVE THEIR OWN CASING, THEIR OWN BASEPLATE OR THE LIKE ) AND/OR
( B)THEY PERFORM AN INDEPENDENT FUNCTION?
IF QUESTION 3 ( A ) IS ANSWERED IN THE NEGATIVE AND QUESTION 3 ( B ) IS ANSWERED IN THE AFFIRMATIVE :
( C)WHERE A COMPONENT, SPARE PART OR ACCESSORY PERFORMS AN INDEPENDENT FUNCTION WITHIN A UNIT OF EQUIPMENT, IS THE DECISIVE FACTOR WHETHER IT IS CAPABLE OF WORKING ON ITS OWN, THUS, IN PARTICULAR, WHETHER IN ADDITION TO THE OPERATIVE COMPONENT ITSELF, IT ALSO CONTAINS THE PROPULSION MECHANISM THEREFOR?
4.IS THE DECISIVE FACTOR AS REGARDS THE SCIENTIFIC CHARACTER OF INSTRUMENTS AND APPARATUS WHICH ARE COMPONENTS OF A UNIT OF EQUIPMENT, WHETHER THOSE INSTRUMENTS AND APPARATUS, VIEWED IN THEMSELVES, SERVE SCIENTIFIC PURPOSES, PARTICULARLY IN THE LIGHT OF THEIR OWN CHARACTERISTICS AND THE FUNCTIONS ( OR PARTS OF FUNCTIONS ) PERFORMED BY THEM, OR IS THEIR SCIENTIFIC CHARACTER ESTABLISHED BY THE MERE FACT THAT THE UNIT OF EQUIPMENT OF WHICH THEY FORM PART IS SCIENTIFIC AND THAT, SINCE THEY ARE SPECIFIC COMPONENTS OF THAT UNIT, THEY CAN BE EMPLOYED ONLY IN CONJUNCTION WITH IT AND THUS, LIKE IT, THEY ARE USED MAINLY OR EXCLUSIVELY FOR SCIENTIFIC RESEARCH?
II.HOW IS ARTICLE 3 ( 2 ) OF REGULATION NO 1798/75 TO BE INTERPRETED?
1.DOES THE PHRASE ' ' REQUIRED FOR THE OPERATION OF SCIENTIFIC INSTRUMENTS AND APPARATUS ' '
MEAN THAT
( A)THE INSTRUMENTS AND APPARATUS ARE INCAPABLE OF FUNCTIONING WITHOUT THE COMPONENT, SPARE PART OR ACCESSORY CONCERNED ; OR IS THE DECISIVE FACTOR WHETHER
( B)THE COMPONENTS, SPARE PARTS OR ACCESSORIES ARE SPECIALLY MADE FOR OR ADAPTED TO THE INSTRUMENTS AND APPARATUS CONCERNED AND ARE THEREFORE COMPONENTS, SPARE PARTS OR ACCESSORIES SPECIFIC TO THOSE INSTRUMENTS OR APPARATUS?
2.DOES THE PHRASE ' ' WHICH QUALIFY FOR DUTY-FREE ADMISSION ' '
ENTAIL THAT THE INSTRUMENTS AND APPARATUS FOR THE OPERATION OF WHICH THE COMPONENTS, SPARE PARTS OR ACCESSORIES ARE REQUIRED :
( A)ARE OR WERE THEMSELVES IMPORTED, OR IS IT SUFFICIENT THAT THEY
( B)SATISFY THE REQUIREMENTS LAID DOWN FOR ADMISSION FREE OF COMMON CUSTOMS TARIFF DUTIES, WITH THE RESULT THAT ARTICLE 3 ( 2 ) OF REGULATION NO 1798/75 APPLIES EVEN WHERE SOME OF THE COMPONENTS OF THE INSTRUMENTS AND APPARATUS ARE IMPORTED FROM A NON-MEMBER COUNTRY AND SOME ARE MANUFACTURED IN THE COMMUNITY, PROVIDED THAT NO INSTRUMENTS OR APPARATUS OF SCIENTIFIC VALUE EQUIVALENT TO THAT OF THE INSTRUMENTS AND APPARATUS ASSEMBLED FROM THOSE COMPONENTS ARE MANUFACTURED IN THE COMMUNITY?
7 FOLLOWING A DETAILED ANALYSIS OF THE RELEVANT FACTS AND LAW, THE FINANZGERICHT INDICATED THAT IT WAS IN FAVOUR OF AN INTERPRETATION THAT WOULD ALLOW THE COMPONENTS IN QUESTION TO BE ADMITTED FREE OF DUTY . IT CONSIDERED SUCH A SOLUTION TO BE REASONABLE AND IN THE INTERESTS OF A RATIONAL INTERNATIONAL DIVISION OF LABOUR .
8 THE PARTIES TO THE MAIN ACTION HAVE NOT SUBMITTED ANY OBSERVATIONS TO THE COURT . THE COMMISSION HAS SUBMITTED TO THE COURT OBSERVATIONS WHICH ULTIMATELY SUPPORT THE HAUPTZOLLAMT ' S POINT OF VIEW .
9 AS REGARDS THE FIRST SET OF QUESTIONS SUBMITTED BY THE FINANZGERICHT, THE COMMISSION CONTENDED THAT COMPONENTS WHICH COULD NOT HAVE ANY FUNCTION OTHER THAN THAT OF BEING INCORPORATED IN A UNIT COULD NOT AT THE SAME TIME BE DESCRIBED AS SCIENTIFIC INSTRUMENTS OR APPARATUS WITHIN THE MEANING OF THE REGULATION IN QUESTION . IN VIEW OF THEIR NATURE, THEREFORE, SUCH COMPONENTS COULD NOT QUALIFY AS SUCH FOR THE EXEMPTION LAID DOWN FOR SCIENTIFIC INSTRUMENTS AND APPARATUS . THEY COULD BENEFIT FROM SUCH EXEMPTION ONLY IF THEY SATISFIED THE REQUIREMENTS OF ARTICLE 3 ( 2 ) WHICH WERE APPLICABLE TO COMPONENTS .
10 AS REGARDS THE SECOND SET OF QUESTIONS, THE COMMISSION PUT FORWARD TWO KINDS OF ARGUMENTS . TO BEGIN WITH, IT DREW ATTENTION TO THE FACT THAT REGU
LATION NO 1798/75 WAS SUBSEQUENTLY AMENDED ON TWO OCCASIONS . FIRST IT WAS AMENDED BY COUNCIL REGULATION ( EEC ) NO 1027/79 OF 8 MAY 1979 ( OFFICIAL JOURNAL 1979, L 134, P . 1 ) IN ORDER TO TAKE ACCOUNT OF CERTAIN PROVISIONS OF THE PROTOCOL ADOPTED AT THE 19TH GENERAL CONFERENCE OF UNESCO AT NAIROBI ON 26 NOVEMBER 1976 AMENDING AND CLARIFYING CERTAIN PROVISIONS OF THE FLORENCE AGREEMENT ( PROTOCOL REGISTERED WITH THE UNITED NATIONS UNDER NO 20669 ). IT WAS CLEAR FROM ANNEX D ( II ) TO THAT PROTOCOL, WHICH FORMED THE BASIS FOR THE AMENDMENT OF ARTICLE 3 ( 2 ) BY REGULATION NO 1027/79, THAT COMPONENTS WERE TO BE ADMITTED FREE OF DUTY ONLY IF THEY WERE INTENDED FOR INSTRUMENTS OR APPARATUS IMPORTED PREVIOUSLY OR AT THE SAME TIME . ARTICLE 53 ( A ) OF COUNCIL REGULATION ( EEC ) NO 918/83 OF 28 MARCH 1983 SETTING UP A COMMUNITY SYSTEM OF RELIEFS FROM CUSTOMS DUTY ( OFFICIAL JOURNAL 1983, L 105, P . 1 ), WHICH CONSOLIDATED THE LEGISLATION IN FORCE IN THIS AREA, WAS SIMILARLY AMENDED . THE COMMISSION TOOK THE VIEW THAT, ON GROUNDS OF RECIPROCITY WHICH, IN ITS VIEW, PLAYED AN IMPORTANT ROLE IN INTERNATIONAL CONVENTIONS, AN INTERPRETATION SHOULD BE ADOPTED FOR THE APPLICATION OF THE LEGISLATIVE PROVISION IN FORCE AT THE MATERIAL TIME THAT WAS CONSISTENT WITH THE COMMUNITY ' S INTERNATIONAL OBLIGATIONS .
11 FURTHERMORE, THE COMMISSION CONTENDED THAT, FOR REASONS BASED ON CUSTOMS PROCEDURE, DUTY-FREE ADMISSION SHOULD BE CONFINED TO COMPONENTS INTENDED FOR IMPORTED INSTRUMENTS AND APPARATUS, IN VIEW OF THE FACT THAT COMPONENTS QUALIFIED FOR EXEMPTION ONLY IF IT WAS ESTABLISHED BY THE CUSTOMS AUTHORITIES THAT THE EQUIPMENT IN QUESTION QUALIFIED FOR DUTY-FREE ADMISSION, WHICH WAS NOT POSSIBLE IN THE CASE OF EQUIPMENT CONSTRUCTED WITHIN THE COMMUNITY .
12 PARAGRAPHS 1 AND 2 OF ARTICLE 3 OF REGULATION NO 1798/75 READ AS FOLLOWS :
1 . ' ' SCIENTIFIC INSTRUMENTS AND APPARATUS NOT INCLUDED IN ARTICLE 2 IMPORTED EXCLUSIVELY FOR EDUCATIONAL PURPOSES OR FOR PURE SCIENTIFIC RESEARCH MAY BE ADMITTED FREE OF COMMON CUSTOMS TARIFF DUTIES PROVIDED :
( A ) THEY ARE INTENDED FOR :
EITHER PUBLIC ESTABLISHMENTS PRINCIPALLY ENGAGED IN EDUCATION OR SCIENTIFIC RESEARCH, INCLUDING THOSE DEPARTMENTS OF PUBLIC ESTAB
LISHMENTS WHICH ARE PRINCIPALLY ENGAGED IN EDUCATION OR SCIENTIFIC RESEARCH ;
OR PRIVATE SCIENTIFIC OR EDUCATIONAL ESTABLISHMENTS AUTHORIZED BY THE COMPETENT AUTHORITIES OF THE MEMBER STATES TO RECEIVE SUCH ARTICLES DUTY FREE AND PROVIDED :
( B)INSTRUMENTS OR APPARATUS OR EQUIVALENT SCIENTIFIC VALUE ARE NOT BEING MANUFACTURED IN THE COMMUNITY .
2.SUBJECT TO THE PRODUCTION OF SATISFACTORY EVIDENCE, THE DUTY-FREE ADMISSION REFERRED TO IN PARAGRAPH 1 SHALL APPLY TO THE COMPONENTS, SPARE PARTS AND ACCESSORIES REQUIRED FOR THE OPERATION OF SCIENTIFIC INSTRUMENTS AND APPARATUS WHICH QUALIFY FOR DUTY-FREE ADMISSION . ' '
13 ANNEX D ( II ) TO THE NAIROBI PROTOCOL, ON WHICH THE SUBSEQUENT AMENDMENTS TO ARTICLE 3 ( 2 ) ARE BASED, IS WORDED AS FOLLOWS IN THE ENGLISH AND FRENCH VERSIONS, BOTH OF WHICH ARE EQUALLY AUTHENTIC :
' ' SPARE PARTS, COMPONENTS OR ACCESSORIES SPECIFICALLY MATCHING SCIENTIFIC INSTRUMENTS OR APPARATUS, PROVIDED THESE SPARE PARTS, COMPONENTS OR ACCESSORIES ARE IMPORTED AT THE SAME TIME AS SUCH INSTRUMENTS AND APPARATUS, OR IF IMPORTED SUBSEQUENTLY, THAT THEY ARE IDENTIFIABLE AS INTENDED FOR INSTRUMENTS OR APPARATUS PREVIOUSLY ADMITTED DUTY-FREE OR ENTITLED TO DUTY-FREE ENTRY . ' '
' ' PIECES DE RECHANGE, ELEMENTS OU ACCESSOIRES SPECIFIQUES S ' ADAPTANT AUX INSTRUMENTS OU APPAREILS SCIENTIFIQUES, POUR AUTANT QUE CES PIECES DE RECHANGE, ELEMENTS OU ACCESSOIRES SOIENT IMPORTES EN MEME TEMPS QUE CES INSTRUMENTS OU APPAREILS OU, S ' ILS SONT IMPORTES ULTERIEUREMENT, QU ' ILS SOIENT RECONNAISSABLES COMME ETANT DESTINES A DES INSTRUMENTS OU APPAREILS ADMIS PRECEDEMMENT EN FRANCHISE OU SUSCEPTIBLES DE BENEFICIER DE LA FRANCHISE . ' '
14 ARTICLE 3 ( 2 ) OF REGULATION NO 1798/75, AS AMENDED BY REGULATION NO 1027/79, NOW READS AS FOLLOWS :
' ' THE DUTY-FREE ADMISSION REFERRED TO IN PARAGRAPH 1 SHALL APPLY TO :
( A ) SPARE PARTS, COMPONENTS OR ACCESSORIES SPECIFICALLY SUITABLE FOR SCIENTIFIC INSTRUMENTS OR APPARATUS, PROVIDED THAT THESE SPARE PARTS, COMPONENTS OR
ACCESSORIES ARE IMPORTED AT THE SAME TIME AS SUCH INSTRUMENTS AND APPARATUS, OR, IF IMPORTED SUBSEQUENTLY, THAT THEY CAN BE IDENTIFIED AS BEING INTENDED FOR INSTRUMENTS OR APPARATUS PREVIOUSLY ADMITTED DUTY FREE OR ENTITLED TO DUTY-FREE ENTRY ;
. . . ' ' .
15 THAT PROVISION WAS IN ITS TURN REPLACED BY ARTICLE 53 OF REGULATION NO 918/83 WHICH READS AS FOLLOWS :
' ' THE RELIEF SHALL ALSO APPLY TO :
( A ) SPARE PARTS, COMPONENTS OR ACCESSORIES SPECIFICALLY SUITABLE FOR SCIENTIFIC INSTRUMENTS OR APPARATUS, PROVIDED THAT THESE SPARE PARTS, COMPONENTS OR ACCESSORIES ARE IMPORTED AT THE SAME TIME AS SUCH INSTRUMENTS AND APPARATUS OR, IF IMPORTED SUBSEQUENTLY, THAT THEY CAN BE IDENTIFIED AS BEING INTENDED FOR INSTRUMENTS OR APPARATUS :
WHICH HAVE PREVIOUSLY BEEN ADMITTED DUTY FREE, PROVIDED THAT SUCH INSTRUMENTS OR APPARATUS ARE STILL OF A SCIENTIFIC NATURE AT THE TIME WHEN RELIEF IS REQUESTED FOR THE SPECIFIC SPARE PARTS, COMPONENTS OR ACCESSORIES, OR
WHICH WOULD BE ENTITLED TO RELIEF AT THE TIME WHEN SUCH RELIEF IS REQUESTED FOR THE SPECIFIC SPARE PARTS, COMPONENTS OR ACCESSORIES . ' '
FIRST SET OF QUESTIONS ( POSSIBILITY OF ' ' COMPONENTS ' '
BEING CLASSIFIED AS SCIENTIFIC INSTRUMENTS OR APPARATUS )
16 THESE QUESTIONS ARE DIRECTED TO A DISTINCTION BETWEEN THE PHRASE ' ' SCIENTIFIC INSTRUMENTS AND APPARATUS ' '
AND THE PHRASE ' ' COMPONENTS, SPARE PARTS OR ACCESSORIES ' ' . MORE PARTICULARLY, THE FINANZGERICHT WISHES TO ASCERTAIN WHETHER SUCH COMPONENTS MAY AT THE SAME TIME BE CLASSIFIED AS SCIENTIFIC INSTRUMENTS OR APPARATUS AND AS SUCH, QUALIFY FOR DUTY-FREE ADMISSION INDEPENDENTLY OF THE UNIT FOR WHICH THEY ARE INTENDED . IF SO, THE FINANZGERICHT ASKS WHAT ARE THE CHARACTERISTICS ON THE BASIS OF WHICH THOSE COMPONENTS MAY BE HELD TO HAVE THE FUNCTION OF A SCIENTIFIC INSTRUMENT OR APPARATUS .
17 AS THE COMMISSION HAS RIGHTLY POINTED OUT, COMPONENTS, SPARE PARTS AND ACCESSORIES ARE ADMITTED FREE OF DUTY IF IT IS ESTABLISHED THAT THEY ARE REQUIRED FOR THE OPERATION OF A SCIENTIFIC INSTRUMENT OR APPARATUS, WITHOUT THERE BEING ANY NEED TO ESTABLISH THAT THE COMPONENTS, SPARE PARTS AND ACCESSORIES THEMSELVES ARE OF A SCIENTIFIC CHARACTER . THAT CLASSIFICATION THEREFORE DEPENDS NOT ON THE NATURE OF THOSE COMPONENTS BUT ON THEIR CONNECTION WITH A SCIENTIFIC INSTRUMENT OR APPARATUS .
18 THERE IS NOTHING IN THE SCHEME OF THE REGULATION TO PREVENT SUCH A COMPONENT FROM ALSO BEING CLASSIFIED IN ITS OWN RIGHT AS A SCIENTIFIC INSTRUMENT OR APPARATUS WITHIN THE MEANING OF ARTICLE 3 ( 1 ) OF REGULATION NO 1798/75 . IN THOSE CIRCUMSTANCES, HOWEVER, THE COMPONENT IN QUESTION IS ADMITTED FREE OF DUTY ONLY IF IT SATISFIES ALL THE REQUIREMENTS LAID DOWN BY THE REGULATION FOR THE DUTY-FREE ADMISSION OF SCIENTIFIC INSTRUMENTS AND APPARATUS . THE CLASSIFICATION OF SUCH A COMPONENT THEREFORE DEPENDS ON THE QUESTION WHETHER, APART FROM THE CONNECTION WHICH IT MAY HAVE WITH ANOTHER SCIENTIFIC UNIT OF EQUIPMENT, IT IS ALSO CAPABLE OF PERFORMING AN INDEPENDENT SCIENTIFIC FUNCTION AND WHETHER IT SATISFIES IN ADDITION ALL THE REQUIREMENTS OF ARTICLE 3 ( 1 ) OF THE REGULATION, PARTICULARLY INASMUCH AS IT MUST BE PARTICULARLY SUITABLE FOR PURE SCIENTIFIC RESEARCH, AS THE COURT EMPHASIZED IN ITS JUDGMENT OF 2 FEBRUARY 1978 IN CASE 72/77 UNIVERSITEITSKLINIEK UTRECHT ( 1978 ) ECR 189 .
19 THE ANSWER TO THE FIRST SET OF QUESTIONS MUST THEREFORE BE THAT PARAGRAPHS 1 AND 2 OF ARTICLE 3 OF REGULATION NO 1798/75, CONSIDERED IN CONJUNCTION WITH ONE ANOTHER, MUST BE INTERPRETED AS MEANING THAT THE FACT THAT MATERIALS CAN BE REGARDED AS COMPONENTS, SPARE PARTS OR ACCESSORIES OF AN INSTALLATION OR A COMPLEX UNIT OF EQUIPMENT FOR SCIENTIFIC RESEARCH DOES NOT PREVENT THEM FROM BEING CLASSIFIED AS SCIENTIFIC INSTRUMENTS OR APPARATUS, IF IT IS ESTABLISHED THAT THEY ARE CAPABLE OF PERFORMING AN INDEPENDENT SCIENTIFIC FUNCTION AND IF ALL THE REQUIREMENTS OF ARTICLE 3 ( 1 ) OF THE REGULATION ARE SATISFIED .
20 IT IS FOR THE NATIONAL COURT TO MAKE THAT DETERMINATION IN THE LIGHT OF ALL THE RELEVANT FACTS OF THE CASE .
SECOND SET OF QUESTIONS ( CUSTOMS TREATMENT OF COMPONENTS INTENDED FOR SCIENTIFIC INSTALLATIONS CONSTRUCTED WITHIN THE COMMUNITY )
21 IF THE MATERIALS IN QUESTION CANNOT BE CLASSIFIED AS SCIENTIFIC INSTRUMENTS OR APPARATUS WITHIN THE MEANING OF THE REGULATION, THE FINANZGERICHT SEEKS GUIDANCE ON THE QUESTION WHETHER THE DUTY-FREE ADMISSION PROVIDED FOR COMPONENTS, SPARE PARTS AND ACCESSORIES MAY ALSO BE GRANTED WHERE SUCH MATERIALS ARE IMPORTED FOR INCORPORATION IN A SCIENTIFIC INSTALLATION CONSTRUCTED WITHIN THE COMMUNITY OR WHETHER SUCH DUTY-FREE ADMISSION IS RESTRICTED TO COMPONENTS INTENDED FOR SCIENTIFIC INSTRUMENTS OR APPARATUS WHICH HAVE THEMSELVES BEEN IMPORTED . THE ANSWER TO THAT QUESTION DEPENDS ON THE INTERPRETATION OF THE PHRASE ' SCIENTIFIC INSTRUMENTS AND APPARATUS WHICH QUALIFY FOR DUTY-FREE ADMISSION '
IN ARTICLE 3 ( 2 ) OF REGULATION NO 1798/75 .
22 IN THAT REGARD, THE ARGUMENTS PUT FORWARD BY THE COMMISSION WHICH ARE BASED ON THE NAIROBI PROTOCOL AND ON THE SUBSEQUENT AMENDMENTS TO THE RELEVANT LEGISLATION CANNOT BE ACCEPTED . THE CUSTOMS TREATMENT FOR THE MATERIALS IN QUESTION IS DETERMINED BY THE LEGISLATION IN FORCE AT THE TIME OF IMPORTATION . THAT LEGISLATION CANNOT BE ALTERED BY THE PROVISIONS OF SUBSEQUENT CONVENTIONS OR LEGISLATION . MOREOVER, IT SHOULD BE OBSERVED THAT EVEN THE NAIROBI PROTOCOL AND THE LEGISLATION BASED THEREON DO NOT ENTIRELY DISPEL THE DOUBTS SURROUNDING THE QUESTION WHETHER DUTY-FREE ADMISSION MAY BE GRANTED IN RESPECT OF COMPONENTS INTENDED FOR INSTALLATIONS WHICH, IF THEY WERE IMPORTED, WOULD QUALIFY FOR DUTY-FREE ADMISSION .
23 AS REGARDS THE CONCLUSIONS TO BE DRAWN FROM THE MANNER IN WHICH THE OTHER CONTRACTING PARTIES ARE LIKELY TO INTERPRET THE PROVISIONS OF EXISTING CONVENTIONS, IT IS SUFFICIENT TO RECALL WHAT THE COURT STATED IN ITS JUGDMENT OF 26 OCTOBER 1982 REGARDING THE NEED TO ENSURE THAT INTERNATIONAL AGREEMENTS WERE INTERPRETED OBJECTIVELY, REGARDLESS OF CONSIDERATIONS RELATING TO RECIPROCITY IN THE IMPLEMENTATION OF SUCH AGREEMENTS BY OTHER PARTIES ( CASE 104/81 HAUPTZOLLAMT MAINZ V KUPFERBERG ( 1982 ) ECR 3641, PARAGRAPH 18 OF THE DECISION ). MOREOVER, IT MUST BE OBSERVED IN THAT CONNECTION THAT THE COMMISSION HAS NOT SUBMITTED ANY INFORMATION WHATSOEVER ON THE MANNER IN WHICH THE PROVISION IN QUESTION HAS ACTUALLY BEEN APPLIED AND INTERPRETED BY THE OTHER CONTRACTING PARTIES TO THE FLORENCE AND NAIROBI AGREEMENTS . ITS OBSERVATIONS SEEM TO BE BASED NOT ON ESTABLISHED FACTS BUT ON ASSUMPTIONS
REGARDING THE INTENTIONS OF THE OTHER CONTRACTING PARTIES . THE COMMISSION ' S REASONING MUST THEREFORE BE REJECTED IN ITS ENTIRETY .
24 HOWEVER, IT IS POSSIBLE IN THE CIRCUMSTANCES TO DERIVE CERTAIN INDICATIONS WHICH MAY BE USEFUL FOR THE INTERPRETATION OF THE CONTESTED PROVISION FROM THE SCHEME OF REGULATION NO 1798/75 AND FROM CERTAIN CONSIDERATIONS CONNECTED WITH THE CUSTOMS CONTROL PROCEDURE .
25 IN THE FIRST PLACE, IT IS APPROPRIATE TO DRAW ATTENTION TO ARTICLE 2 OF REGULATION NO 1798/75 WHICH PROVIDES THAT EDUCATIONAL, SCIENTIFIC AND CULTURAL MATERIALS MAY BE ADMITTED FREE OF DUTY ONLY WHEN THEY ARE INTENDED FOR CERTAIN RESEARCH OR TEACHING ESTABLISHMENTS . THE APPLICATION OF THAT PROVISION RAISES CERTAIN DIFFICULTIES WHERE THE IMPORTED COMPONENTS ARE INTENDED NOT DIRECTLY FOR THE SCIENTIFIC OR EDUCATIONAL INSTITUTION CONCERNED BUT FOR THE MANUFACTURE OF SCIENTIFIC EQUIPMENT WHICH IS TO BE DELIVERED SUBSEQUENTLY TO THE INSTITUTION CONCERNED . SECONDLY, IT IS APPROPRIATE TO POINT OUT THAT A SCIENTIFIC INSTALLATION CONSTRUCTED IN THE COMMUNITY FALLS OUTSIDE THE SCOPE OF CUSTOMS LAW AND MAY NOT THEREFORE LEGALLY BE CLASSIFIED AS A SCIENTIFIC INSTRUMENT OR APPARATUS WITHIN THE MEANING OF REGULATION NO 1798/75, PARTICULARLY SINCE DUTY-FREE ADMISSION MAY BE GRANTED ONLY IF IT IS ESTABLISHED THAT INSTRUMENTS OR APPARATUS OF EQUIVALENT VALUE ARE NOT BEING MANUFACTURED IN THE COMMUNITY . IT WOULD APPEAR THEREFORE THAT THE ARGUMENT RELIED UPON BY THE UNIVERSITY OF HAMBURG AMOUNTS TO CLASSIFYING THE PRINCIPAL INSTALLATION AS A SCIENTIFIC INSTRUMENT OR APPARATUS WHICH QUALIFIES FOR DUTY-FREE ADMISSION, NOT IN ITS OWN RIGHT, SINCE IT IS BUILT IN THE COMMUNITY, BUT EXCLUSIVELY BY VIRTUE OF ITS CONNECTION WITH THE IMPORTED COMPONENTS, SPARE PARTS OR ACCESSORIES . REGULATION NO 1798/75 DOES NOT PROVIDE ANY BASIS FOR SUCH AN INTERPRETATION WHICH IS A PURE FICTION AND CONTRARY TO THE SYSTEM ESTABLISHED BY THAT REGULATION .
26 FOR ALL THOSE REASONS, IT WOULD APPEAR THAT CERTAIN CONSIDERATIONS RELATING TO THE SCOPE AND THE SCHEME OF REGULATION NO 1798/75 PRECLUDE THE DUTY-FREE ADMISSION OF COMPONENTS INTENDED FOR INCORPORATION IN A SCIENTIFIC INSTALLATION CONSTRUCTED IN THE COMMUNITY .
27 THE INDUSTRIAL AND COMMERCIAL POLICY CONSIDERATIONS REFERRED TO BY THE FINANZGERICHT IN ITS ORDER FOR REFERENCE DO NOT STAND IN THE WAY OF A CONCLUSION OF THAT KIND . AS THE COMMISSION HAS POINTED OUT, WHERE IT
APPEARS THAT COMMUNITY INDUSTRY IS CAPABLE OF CONSTRUCTING A SCIENTIFIC UNIT OF EQUIPMENT IN ITS ENTIRETY, EXCEPT FOR CERTAIN SPECIFIC PARTS, THE DUTY-FREE ADMISSION OF HIGH-VALUE COMPONENTS MAY, FAR FROM PROMOTING TECHNOLOGICAL PROGRESS IN THE COMMUNITY, INSTEAD CONSTITUTE AN INCENTIVE TO KEEP OUTSIDE THE COMMUNITY CERTAIN SCIENTIFICALLY AND TECHNICALLY IMPORTANT PRODUCTION FACILITIES . IN THOSE CIRCUMSTANCES, THE REFUSAL TO ADMIT THE COMPONENTS IN QUESTION FREE OF DUTY MAY THEREFORE ACT AS A USEFUL INCENTIVE TO SECURE THE TRANSFER OF SUCH PRODUCTION TO THE COMMUNITY .
28 FOR THOSE REASONS, THE ANSWER TO THE SECOND SET OF QUESTIONS SUBMITTED BY THE FINANZGERICHT MUST BE THAT THE PHRASE ' SCIENTIFIC INSTRUMENTS AND APPARATUS WHICH QUALIFY FOR DUTY-FREE ADMISSION '
IN ARTICLE 3 ( 2 ) OF REGULATION NO 1798/75 MUST BE INTERPRETED AS MEANING THAT COMPONENTS, SPARE PARTS AND ACCESSORIES MAY BE IMPORTED FREE OF DUTY PROVIDED THAT THEY ARE INTENDED FOR SCIENTIFIC INSTRUMENTS OR APPARATUS WHICH ARE, OR HAVE BEEN, ADMITTED FREE OF DUTY . DUTY-FREE ADMISSION MAY NOT, HOWEVER, BE GRANTED WHERE THE COMPONENTS ARE INTENDED TO BE INCORPORATED IN A SCIENTIFIC INSTALLATION CONSTRUCTED IN THE COMMUNITY .
Decision on costs
COSTS
29 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 PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
IN REPLY TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT MUNCHEN BY ORDER OF 6 OCTOBER 1983 HEREBY RULES :
1 . PARAGRAPHS 1 AND 2 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,
CONSIDERED IN CONJUNCTION WITH ONE ANOTHER, MUST BE INTERPRETED AS MEANING THAT THE FACT THAT MATERIALS CAN BE REGARDED AS COMPONENTS, SPARE PARTS OR ACCESSORIES OF AN INSTALLATION OR A COMPLEX UNIT OF EQUIPMENT FOR SCIENTIFIC RESEARCH DOES NOT PREVENT THEM FROM BEING CLASSIFIED AS SCIENTIFIC INSTRUMENTS OR APPARATUS, IF IT IS ESTABLISHED THAT THEY ARE CAPABLE OF PERFORMING AN INDEPENDENT SCIENTIFIC FUNCTION AND IF ALL THE REQUIREMENTS OF ARTICLE 3 ( 1 ) OF THE REGULATION ARE SATISFIED .
2.THE PHRASE ' SCIENTIFIC INSTRUMENTS AND APPARATUS WHICH QUALIFY FOR DUTY-FREE ADMISSION '
IN ARTICLE 3 ( 2 ) OF REGULATION NO 1798/75 MUST BE INTERPRETED AS MEANING THAT COMPONENTS, SPARE PARTS AND ACCESSORIES MAY BE IMPORTED FREE OF DUTY PROVIDED THAT THEY ARE INTENDED FOR SCIENTIFIC INSTRUMENTS OR APPARATUS WHICH ARE, OR HAVE BEEN, ADMITTED FREE OF DUTY . DUTY-FREE ADMISSION MAY NOT, HOWEVER, BE GRANTED WHERE THE COMPONENTS ARE INTENDED TO BE INCORPORATED IN A SCIENTIFIC INSTALLATION CONSTRUCTED IN THE COMMUNITY .