Judgment of the Court of 27 September 1983. - Universität Hamburg v Hauptzollamt Hamburg-Kehrwieder. - Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. - Common Customs Tariff - Exemption for scientific apparatus - Equivalent scientific value. - Case 216/82.



European Court reports 1983 Page 02771

Spanish special edition Page 00717

Swedish special edition Page 00265

Finnish special edition Page 00261



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . PRELIMINARY QUESTIONS - ASSESSMENT OF VALIDITY - COMMISSION DECISION DECLARING THAT GOODS MAY NOT BE IMPORTED FREE OF COMMON CUSTOMS TARIFF DUTIES - SUBSEQUENT REJECTION BY THE NATIONAL AUTHORITY OF THE APPLICATION FOR DUTY-FREE ADMISSION - OBJECTION ALLEGING THE ILLEGALITY OF THE COMMISSION DECISION RAISED IN PROCEEDINGS BEFORE THE NATIONAL COURTS BROUGHT AGAINST THE DECISION TO REJECT THE APPLICATION - FAILURE TO BRING AN ACTION FOR ANNULMENT UNDER THE SECOND PARAGRAPH OF ART . 173 OF THE TREATY AGAINST THE COMMISSION DECISION - NO EFFECT ON THE ADMISSIBILITY OF THE OBJECTION OF ILLEGALITY

( EEC TREATY , SECOND PARA . OF ART . 173 , ARTS 177 AND 184 ; REGULATION NO 3195/75 OF THE COMMISSION , ART . 4 ( 6 ))

2 . PRELIMINARY QUESTIONS - ASSESSMENT OF VALIDITY - REVIEW BY THE COURT - LIMITS - COMMISSION DECISION DECLARING THAT GOODS MAY NOT BE IMPORTED FREE OF COMMON CUSTOMS TARIFF DUTIES - OBJECTS OF SCIENTIFIC VALUE - CONFORMITY OF THE DECISION WITH THE OPINION OF THE COMMITTEE ON DUTY-FREE ARRANGEMENTS ON THE QUESTION WHETHER THE IMPORTED INSTRUMENT AND OTHER INSTRUMENTS MADE IN THE COMMUNITY ARE EQUIVALENT - REVIEW BY THE COURT LIMITED TO MANIFEST ERROR AND MISUSE OF POWER

( REGULATION NO 3195/75 OF THE COMMISSION , ART . 4 )

3 . COMMON CUSTOMS TARIFF - IMPORTATION FREE OF CUSTOMS DUTIES - OBJECTS OF SCIENTIFIC VALUE - WHETHER THE IMPORTED PRODUCT AND OTHER INSTRUMENTS MADE IN THE COMMUNITY ARE EQUIVALENT - ASSESSMENT - CRITERIA

( REGULATION NO 1798/75 OF THE COUNCIL , ART . 3 ( 3 ))

Summary

1 . THE PERSON OR PERSONS CONCERNED BY A DECISION ADOPTED BY THE COMMISSION PURSUANT TO ARTICLE 4 ( 6 ) OF REGULATION NO 3195/75 REFUSING TO ALLOW THE IMPORTATION OF A SCIENTIFIC INSTRUMENT OR APPARATUS FREE OF CUSTOMS DUTIES WHO HAVE NOT BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY AGAINST THAT DECISION MAY PLEAD THE ILLEGALITY OF SUCH A DECISION BEFORE THE NATIONAL COURT IN PROCEEDINGS AGAINST THE FIXING OF CUSTOMS DUTY BY THE COMPETENT NATIONAL AUTHORITIES AND THE QUESTION OF THE VALIDITY OF THE DECISION AT ISSUE MAY THEREFORE BE REFERRED TO THE COURT IN PROCEEDINGS FOR A PRELIMINARY RULING .

THE NATIONAL AUTHORITY ' S REFUSAL , BASED ON THE COMMISSION ' S DECISION , TO GRANT THE APPLICANT DUTY-FREE ADMISSION IS IN FACT THE ONLY MEASURE WHICH IS DIRECTLY ADDRESSED TO IT , OF WHICH IT HAS NECESSARILY BEEN INFORMED IN GOOD TIME AND WHICH THE APPLICANT MAY CHALLENGE IN THE COURTS WITHOUT ENCOUNTERING ANY DIFFICULTY IN DEMONSTRATING ITS INTEREST IN BRINGING PROCEEDINGS . ACCORDING TO A GENERAL PRINCIPLE OF LAW WHICH FINDS ITS EXPRESSION IN ARTICLE 184 OF THE EEC TREATY , IN PROCEEDINGS BROUGHT UNDER NATIONAL LAW AGAINST THE REJECTION OF HIS APPLICATION THE APPLICANT MUST BE ABLE TO PLEAD THE ILLEGALITY OF THE COMMISSION ' S DECISION .

2.GIVEN THE TECHNICAL CHARACTER OF THE EXAMINATION CARRIED OUT UNDER ARTICLE 4 OF REGULATION NO 3195/75 BY EXPERTS FROM ALL THE MEMBER STATES MEETING IN THE COMMITTEE ON DUTY-FREE ARRANGEMENTS AND HAVING AS ITS OBJECT THE ADMISSION FREE OF CUSTOMS DUTIES OF A SCIENTIFIC INSTRUMENT OR APPARATUS , THE COURT CANNOT , SAVE IN THE EVENT OF MANIFEST ERROR OF FACT OR LAW OR MISUSE OF POWER , FIND FAULT WITH THE CONTENTS OF A DECISION WHICH THE COMMISSION HAS ADOPTED IN CONFORMITY WITH THAT COMMITTEE ' S OPINION .

3.FOR THE PURPOSES OF THE ADMISSION OF A SCIENTIFIC INSTRUMENT OR APPARATUS FREE OF CUSTOMS DUTIES THE QUESTION WHETHER THE INSTRUMENT IN QUESTION AND OTHER SIMILAR INSTRUMENTS MADE IN THE COMMUNITY ARE EQUIVALENT MUST NOT BE DECIDED SOLELY ON THE BASIS OF THE TECHNICAL SPECIFICATIONS WHICH THE USER DESCRIBED IN HIS APPLICATION AS BEING NECESSARY FOR HIS RESEARCH BUT PRIMARILY ON THE BASIS OF AN OBJECTIVE ASSESSMENT OF THEIR CAPACITY TO CARRY OUT THE EXPERIMENTS FOR WHICH THE USER INTENDED TO USE THE IMPORTED INSTRUMENT .

Parties

IN CASE 216/82

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT ( FINANCE COURT ) HAMBURG FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

UNIVERSITAT HAMBURG ( UNIVERSITY OF HAMBURG )

AND

HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) HAMBURG-KEHRWIEDER

Subject of the case

ON THE INTERPRETATION OF ARTICLES 173 AND 177 OF THE EEC TREATY , REGULATION ( EEC ) NO 1798/75 OF THE COUNCIL OF 10 JULY 1975 ON THE IMPORTATION FREE OF COMMON CUSTOMS TARIFF DUTIES OF EDUCATIONAL , SCIENTIFIC OR CULTURAL MATERIALS ( OFFICIAL JOURNAL 1975 , L 184 , P . 1 ) AND REGULATION ( EEC ) NO 3195/75 OF THE COMMISSION OF 2 DECEMBER 1975 LAYING DOWN PROVISIONS FOR THE IMPLEMENTATION OF REGULATION NO 1798/75 ( OFFICIAL JOURNAL 1975 , L 316 , P . 17 ),

Grounds

1 BY ORDER OF 20 JULY 1982 , WHICH WAS RECEIVED AT THE COURT ON 20 AUGUST 1982 , THE FINANZGERICHT ( FINANCE COURT ) HAMBURG REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS ON THE INTERPRETATION OF , FIRST , ARTICLES 173 AND 177 OF THE EEC TREATY AND , SECONDLY , REGULATION ( EEC ) NO 1798/75 OF THE COUNCIL OF 10 JULY 1975 ON THE IMPORTATION FREE OF COMMON CUSTOMS TARIFF DUTIES OF EDUCATIONAL , SCIENTIFIC OR CULTURAL MATERIALS ( OFFICIAL JOURNAL 1975 , L 184 , P . 1 ) AND REGULATION ( EEC ) NO 3195/75 OF THE COMMISSION OF 2 DECEMBER 1975 LAYING DOWN PROVISIONS FOR THE IMPLEMENTATION OF REGULATION NO 1798/75 ( OFFICIAL JOURNAL 1975 , L 316 , P . 17 ).

2 THOSE QUESTIONS WERE RAISED IN AN ACTION BROUGHT BY THE UNIVERSITY OF HAMBURG AGAINST THE REFUSAL OF THE GERMAN CUSTOMS AUTHORITIES TO GRANT THE EXEMPTION ON THE OCCASION OF THE IMPORTATION OF AN ELECTRONIC TESTING AND MEASURING INSTRUMENT CALLED A PACKARD 2425 TRI-CARB SPECTROMETER WHICH CAME FROM THE UNITED STATES OF AMERICA AND WHICH THE UNIVERSITY INTENDED TO USE FOR THE ' ' MEASUREMENT OF RADIOACTIVITY IN THE TISSUES AND BODY FLUIDS OF LABORATORY ANIMALS AS PART OF EXPERIMENTAL ANATOMICAL RESEARCH TO LOCALIZE AND QUANTIFY CHEMICAL METABOLIC PROCESSES IN MAMMALS ' ' .

3 ACCORDING TO THE DOCUMENTS BEFORE THE COURT , THE GERMAN AUTHORITIES REFERRED THE UNIVERSITY ' S APPLICATION TO THE COMMISSION IN ACCORDANCE WITH THE PROVISIONS OF THE AFORESAID REGULATIONS . IN ITS DECISION NO 78/851 OF 5 OCTOBER 1978 ( OFFICIAL JOURNAL 1978 , L 293 , P . 30 ) ADDRESSED TO ALL THE MEMBER STATES THE COMMISSION DECLARED THAT THE CONDITIONS FOR ADMISSION FREE OF CUSTOMS DUTY SET OUT IN ARTICLE 3 ( 1 ) ( B ) OF REGULATION NO 1798/75 WERE NOT FULFILLED BECAUSE APPARATUS OF EQUIVALENT SCIENTIFIC VALUE AND CAPABLE OF BEING PUT TO THE SAME PARTICULAR USE WERE MANUFACTURED IN THE COMMUNITY . AS A RESULT OF THAT DECISION ON 7 MAY 1979 THE GERMAN AUTHORITIES FINALLY REJECTED THE UNIVERSITY ' S APPLICATION .

4 IN THE PROCEEDINGS BEFORE THE FINANZGERICHT HAMBURG THE UNIVERSITY CONTENDED THAT , IN VIEW OF THE SPECIFIC NEEDS OF THE RESEARCH DESCRIBED IN ITS APPLICATION , THE INSTRUMENTS MANUFACTURED IN THE COMMUNITY WERE NOT EQUIVALENT TO THE AMERICAN INSTRUMENT . THESE WERE THE CIRCUMSTANCES IN WHICH THE FINANZGERICHT HAMBURG SUBMITTED THE FOLLOWING QUESTIONS TO THE COURT :

' ' 1 . IS A DECISION THAT THE CONDITIONS LAID DOWN BY ARTICLE 3 ( 1 ) ( B ) OF REGULATION ( EEC ) NO 1798/75 OF THE COUNCIL OF 10 JULY 1975 CONCERNING THE DUTY-FREE IMPORTATION OF A SPECIFIC INSTRUMENT OR APPARATUS ARE NOT FULFILLED , WHICH THE COMMISSION ADDRESSES TO THE MEMBER STATES IN ACCORDANCE WITH THE FIRST SENTENCE OF ARTICLE 4 ( 6 ) OF REGULATION ( EEC ) NO 3195/75 OF THE COMMISSION OF 2 DECEMBER 1975 , OF DIRECT AND INDIVIDUAL CONCERN TO THE PERSON WHO IMPORTED THE INSTRUMENT OR APPARATUS WHICH IS THE SUBJECT OF THE DECISION , SO THAT HE MAY BRING AN ACTION AGAINST THE COMMISSION AND , IF SO , FROM WHAT TIME AND WITHIN WHICH PERIOD?

2.MAY A PERSON CONCERNED BY A DECISION ADOPTED BY THE COMMISSION IN ACCORDANCE WITH THE FIRST SENTENCE OF ARTICLE 4 ( 6 ) OF REGULATION ( EEC ) NO 3195/75 CONTEST THE DECISION ' S LEGALITY ONLY BY INSTITUTING PROCEEDINGS AGAINST THE COMMISSION WITHIN THE TWO-MONTH PERIOD LAID DOWN BY THE THIRD PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY OR CAN THE DECISION ' S LEGALITY ALSO BE CONTESTED BEFORE A NATIONAL COURT IN AN APPEAL AGAINST THE ASSESSMENT TO CUSTOMS DUTY , SO THAT THE NATIONAL COURT MAY , IF NECESSARY , SUBMIT THE QUESTION OF THE DECISION ' S VALIDITY TO THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES IN THE FORM OF A REQUEST FOR A PRELIMINARY RULING?

3.IF THE DECISION ' S LEGALITY CAN BE CONTESTED IN PROCEEDINGS BEFORE A NATIONAL COURT , IS COMMISSION DECISION 78/851/EEC OF 5 OCTOBER 1978 ON THE PACKARD 2425 TRI-CARB SPECTROMETER INVALID BECAUSE , EVEN THOUGH SIMILAR TYPES OF APPARATUS , AS THE COMMISSION DESCRIBES IN ITS DECISION , ARE MADE IN THE COMMUNITY , THEY WERE INFERIOR IN PERFORMANCE TO THE IMPORTED INSTRUMENT , ESPECIALLY WHEN THE USER ' S SPECIFICATIONS ARE CONSIDERED?

' '

THE FIRST TWO QUESTIONS

5 BY THESE QUESTIONS THE NATIONAL COURT IN SUBSTANCE SEEKS TO ASCERTAIN WHETHER , BY NOT HAVING BROUGHT PROCEEDINGS UNDER THE SECOND PARAGRAPH OF ARTICLE 173 AGAINST A DECISION OF THE COMMISSION OF THE TYPE IN QUESTION WITHIN THE PERIODS STIPULATED IN THE THIRD PARAGRAPH OF THAT ARTICLE , THE PERSON OR PERSONS CONCERNED BY THAT DECISION ARE , ACCORDING TO COMMUNITY LAW , PRECLUDED FROM RELYING UPON THE INVALIDITY OF THAT DECISION IN PROCEEDINGS BEFORE A NATIONAL COURT . FOR THE PURPOSE OF RESOLVING THAT ISSUE THE PROCEDURE ESTABLISHED BY THE AFORESAID REGULATIONS SHOULD BE CONSIDERED .

6 ARTICLE 3 OF REGULATION NO 3195/75 REQUIRES AN APPLICATION FOR DUTY-FREE ADMISSION TO BE SUBMITTED TO THE COMPETENT AUTHORITY OF THE MEMBER STATE IN WHICH THE SCIENTIFIC ESTABLISHMENT IN QUESTION IS SITUATED . ARTICLE 4 REQUIRES THAT NATIONAL AUTHORITY TO GIVE A DIRECT DECISION ON APPLICATIONS IN ALL CASES WHERE THE INFORMATION AT ITS DISPOSAL ENABLES IT TO DECIDE WHETHER OR NOT THERE EXIST APPARATUS OF EQUIVALENT SCIENTIFIC VALUE WHICH ARE CURRENTLY MANUFACTURED IN THE COMMUNITY . ONLY IF THE NATIONAL AUTHORITY CONSIDERS THAT IT IS UNABLE TO DECIDE THAT QUESTION FOR ITSELF IS IT THEREFORE BOUND TO REFER IT TO THE COMMISSION AND COMMUNITY LAW DOES NOT REQUIRE THE APPLICANT TO BE INFORMED OF THAT REFERENCE .

7 THE DECISION ADOPTED BY THE COMMISSION IS ADDRESSED TO ALL THE MEMBER STATES . BY VIRTUE OF ARTICLE 191 OF THE TREATY IT MUST THEREFORE BE NOTIFIED TO THE MEMBER STATES AND IT TAKES EFFECT UPON SUCH NOTIFICATION . HOWEVER , IT DOES NOT HAVE TO BE NOTIFIED TO THE PERSON APPLYING FOR EXEMPTION FROM CUSTOMS DUTY AND IT IS NOT ONE OF THE MEASURES WHICH THE TREATY REQUIRES TO BE PUBLISHED . EVEN IF IN PRACTICE THE DECISION IS IN FACT PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES , ITS WORDING DOES NOT NECESSARILY ENABLE THE APPLICANT TO ASCERTAIN WHETHER IT WAS ADOPTED IN RELATION TO THE PROCEDURE WHICH HE INITIATED .

8 SINCE THE DECISION IS BINDING ON THE MEMBER STATES , THE NATIONAL AUTHORITY MUST REJECT THE APPLICATION FOR DUTY-FREE ADMISSION IN THE EVENT OF A NEGATIVE DECISION ON THE PART OF THE COMMISSION ; HOWEVER , COMMUNITY LAW DOES NOT REQUIRE IT TO REFER TO THE COMMISSION ' S DECISION IN ITS OWN DECISION REJECTING THE APPLICATION . FURTHERMORE , AS THIS CASE DEMONSTRATES , THE NATIONAL AUTHORITY ' S DECISION MAY BE ADOPTED SOME TIME AFTER THE NOTIFICATION OF THE COMMISSION ' S DECISION .

9 FINALLY , AS THE FINANZGERICHT RIGHTLY POINTS OUT , FOR THE PURPOSE OF BRINGING AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY AGAINST THE COMMISSION ' S DECISION , THE SCIENTIFIC ESTABLISHMENT IN QUESTION MUST DEMONSTRATE THAT THE DECISION IS OF DIRECT AND INDIVIDUAL CONCERN TO IT .

10 IN THOSE CIRCUMSTANCES THE REJECTION BY THE NATIONAL AUTHORITY OF THE SCIENTIFIC ESTABLISHMENT ' S APPLICATION IS THE ONLY MEASURE WHICH IS DIRECTLY ADDRESSED TO IT , OF WHICH IT HAS NECESSARILY BEEN INFORMED IN GOOD TIME AND WHICH THE ESTABLISHMENT MAY CHALLENGE IN THE COURTS WITHOUT ENCOUNTERING ANY DIFFICULTY IN DEMONSTRATING ITS INTEREST IN BRINGING PROCEEDINGS . ACCORDING TO A GENERAL PRINCIPLE OF LAW WHICH FINDS ITS EXPRESSION IN ARTICLE 184 OF THE EEC TREATY , IN PROCEEDINGS BROUGHT UNDER NATIONAL LAW AGAINST THE REJECTION OF HIS APPLICATION THE APPLICANT MUST BE ABLE TO PLEAD THE ILLEGALITY OF THE COMMISSION ' S DECISION ON WHICH THE NATIONAL DECISION ADOPTED IN HIS REGARD IS BASED .

11 THAT STATEMENT IS SUFFICIENT TO PROVIDE AN ANSWER CAPABLE OF DISPELLING THE DOUBTS EXPRESSED BY THE NATIONAL COURT WITHOUT THERE BEING ANY NEED TO CONSIDER THE WIDER ISSUE OF THE GENERAL RELATIONSHIP BETWEEN ARTICLES 173 AND 177 OF THE TREATY OR TO GIVE A SEPARATE ANSWER TO THE FIRST QUESTION .

12 THE ANSWER TO THE FIRST TWO QUESTIONS OF THE FINANZGERICHT SHOULD THEREFORE BE THAT THE PERSON OR PERSONS CONCERNED BY A DECISION ADOPTED BY THE COMMISSION PURSUANT TO ARTICLE 4 OF REGULATION NO 3195/75 MAY PLEAD THE ILLEGALITY OF THE DECISION BEFORE THE NATIONAL COURT IN PROCEEDINGS AGAINST THE FIXING OF CUSTOMS DUTY AND THAT THE QUESTION OF THE VALIDITY OF THE DECISION MAY THEREFORE BE REFERRED TO THE COURT IN PROCEEDINGS FOR A PRELIMINARY RULING .

THE THIRD QUESTION

13 IN THIS QUESTION THE FINANZGERICHT ASKS WHETHER DECISION 78/851 IS INVALID ON THE GROUND THAT THE PERFORMANCE OF THE SIMILAR APPARATUS MANUFACTURED IN THE COMMUNITY IS LOWER THAN THAT OF THE IMPORTED APPARATUS , HAVING REGARD IN PARTICULAR TO THE USER ' S SPECIFICATIONS .

14 IN THIS REGARD IT MUST BE STRESSED FIRST OF ALL THAT THE REGULATIONS IN QUESTION ARE MEANT TO ENSURE THAT APPLICATIONS WHICH ARE REFERRED TO THE COMMISSION AND ON WHICH ONE OR MORE MEMBER STATES HAVE GIVEN AN UNFAVOURABLE OPINION RECEIVE A THOROUGH EXAMINATION . ARTICLE 4 OF REGULATION NO 3195/75 REQUIRES THAT EXAMINATION TO BE CARRIED OUT BY EXPERTS FROM ALL THE MEMBER STATES MEETING IN THE COMMITTEE ON DUTY-FREE ARRANGEMENTS ; THEY HAVE AT THEIR DISPOSAL NOT ONLY THE APPLICATION BUT ALSO THE RELEVANT TECHNICAL DOCUMENTS AND THEY COMPARE THE INSTRUMENTS IN QUESTION TAKING INTO ACCOUNT THE PARTICULAR USE TO WHICH THE IMPORTER INTENDS TO PUT THE IMPORTED INSTRUMENT . GIVEN THE TECHNICAL CHARACTER OF THAT EXAMINATION THE COURT CANNOT , SAVE IN THE EVENT OF MANIFEST ERROR OF FACT OR LAW OR MISUSE OF POWER , FIND FAULT WITH THE CONTENTS OF A DECISION WHICH THE COMMISSION HAD ADOPTED IN CONFORMITY WITH THE COMMITTEE ' S OPINION .

15 A FURTHER POINT TO BE MADE IS THAT THE QUESTION WHETHER THE INSTRUMENTS IN QUESTION ARE EQUIVALENT MUST NOT BE DECIDED SOLELY ON THE BASIS OF THE TECHNICAL SPECIFICATIONS WHICH THE USER DESCRIBED IN HIS APPLICATION AS BEING NECESSARY FOR HIS RESEARCH BUT PRIMARILY ON THE BASIS OF AN OBJECTIVE ASSESSMENT OF THEIR CAPACITY TO CARRY OUT THE EXPERIMENTS FOR WHICH THE USER INTENDED TO USE THE IMPORTED INSTRUMENT . THE EXPERTS ' REPORTS WHICH THE NATIONAL COURT ORDERED IN THE PRESENT CASE ARE BASED , HOWEVER , ON THE TECHNICAL SPECIFICATIONS STIPULATED BY THE UNIVERSITY AND THEY DO NOT CONSIDER WHETHER THESE ARE JUSTIFIED WITH REFERENCE TO THE INTRINSIC NEEDS OF THE PLANNED RESEARCH ; THEY CONTAIN THE EXPRESS RESERVATION THAT IT IS NOT POSSIBLE TO ARRIVE AT A RELIABLE JUDGMENT OF THE SCIENTIFIC VALUE OF THE INSTRUMENTS IN QUESTION EXCEPT BY USING THEM FOR THE SCIENTIFIC OBJECT IN VIEW AND COMPARING THEIR PERFORMANCE . IT FOLLOWS THAT THOSE EXPERTS ' REPORTS ARE NOT SUFFICIENT TO DEMONSTRATE THE EXISTENCE OF A MANIFEST ERROR WHICH WOULD RENDER THE DECISION IN QUESTION INVALID .

16 SINCE THERE IS NO OTHER EVIDENCE BEFORE THE COURT TO PROVE THE EXISTENCE OF SUCH AN ERROR OR A MISUSE OF POWER , THE ANSWER TO THE THIRD QUESTION MUST BE THAT CONSIDERATION BY THE COURT HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF COMMISSION DECISION 78/851 OF 5 OCTOBER 1978 .

Decision on costs

COSTS

17 THE COSTS INCURRED BY THE DANISH GOVERNMENT AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH 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 ,

IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE FINANZGERICHT HAMBURG BY ORDER OF 20 JULY 1982 , HEREBY RULES :

1 . THE PERSON OR PERSONS CONCERNED BY A DECISION ADOPTED BY THE COMMISSION PURSUANT TO ARTICLE 4 OF REGULATION NO 3195/75 OF THE COMMISSION OF 2 DECEMBER 1975 LAYING DOWN PROVISIONS FOR THE IMPLEMENTATION OF REGULATION NO 1798/75 OF THE COUNCIL ON THE IMPORTATION FREE OF COMMON CUSTOMS TARIFF DUTIES OF EDUCATIONAL , SCIENTIFIC OR CULTURAL MATERIALS MAY PLEAD THE ILLEGALITY OF THAT DECISION BEFORE THE NATIONAL COURT IN PROCEEDINGS AGAINST THE FIXING OF CUSTOMS DUTY AND THE QUESTION OF THE VALIDITY OF THE DECISION MAY THEREFORE BE REFERRED TO THE COURT IN PROCEEDINGS FOR A PRELIMINARY RULING .

2.CONSIDERATION BY THE COURT HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF COMMISSION DECISION NO 78/851 OF 5 OCTOBER 1978 EXCLUDING THE SCIENTIFIC INSTRUMENT CALLED A ' ' PACKARD 2425 TRI-CARB SPECTROMETER ' ' WITH TELEPRINTER FROM EXEMPTION FROM COMMON CUSTOMS TARIFF DUTIES .