Judgment of the Court (Second Chamber) of 10 December 1987. - Nicolet Instrument GmbH v Hauptzollamt Berlin-Packhof. - Reference for a preliminary ruling: Finanzgericht Berlin - Germany. - Common Customs Tariff - Exemption for scientific apparatus - Community apparatus capable of greatly superior performance. - Case 232/86.



European Court reports 1987 Page 05025



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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COMMON CUSTOMS TARIFF - EXEMPTION FROM IMPORT DUTIES - SCIENTIFIC INSTRUMENTS AND APPARATUS - EQUIVALENCE OF IMPORTED APPARATUS AND OTHER APPARATUS MANUFACTURED IN THE COMMUNITY - ASSESSMENT - PERFORMANCE OF COMMUNITY APPARATUS GREATLY SUPERIOR TO THAT NECESSARY FOR THE RESEARCH PROJECT - NOT RELEVANT

( REGULATION NO 1798/75 OF THE COUNCIL, ART . 3 ( 3 ), AS AMENDED BY REGULATION NO 1027/79; COMMISSION REGULATION NO 2784/79, ART . 5 ( 2 ) )

Summary

REGULATION NO 1798/75 ON THE IMPORTATION FREE OF COMMON CUSTOMS TARIFF DUTIES OF EDUCATIONAL, SCIENTIFIC AND CULTURAL MATERIALS AND REGULATION NO 2784/79 LAYING DOWN PROVISIONS FOR THE IMPLEMENTATION OF REGULATION NO 1798/75 MUST BE INTERPRETED AS MEANING THAT THE MERE FACT THAT AN INSTRUMENT OR APPARATUS MANUFACTURED IN THE COMMUNITY IS CAPABLE OF PERFORMANCES GREATLY SUPERIOR TO THOSE NECESSARY FOR THE PROPOSED RESEARCH PROJECT DOES NOT PREVENT ITS BEING REGARDED AS BEING "OF EQUIVALENT SCIENTIFIC VALUE" WITHIN THE MEANING OF THE ABOVEMENTIONED REGULATIONS .

Parties

IN CASE 232/86

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

NICOLET INSTRUMENT GMBH

AND

HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) BERLIN-PACKHOF

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 ), FOR THE PURPOSE OF DECIDING WHETHER THE HAUPTZOLLAMT' S DECISION OF 23 FEBRUARY 1982 TO THE EFFECT THAT THE APPARATUS KNOWN AS A FOURIER-TRANSFORM INFRA-RED SPECTROMETER SYSTEM MODEL MX-1 E WITH ACCESSORIES" CANNOT BE IMPORTED FREE OF COMMON CUSTOMS DUTIES IS COMPATIBLE WITH THAT REGULATION,

THE COURT ( SECOND CHAMBER )

COMPOSED OF : O . DUE, PRESIDENT OF CHAMBER, K . BAHLMANN AND T . F . O' HIGGINS, JUDGES,

ADVOCATE GENERAL : G . F . MANCINI

REGISTRAR : H . A . ROEHL, PRINCIPAL ADMINISTRATOR

AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF

NICOLET INSTRUMENT GMBH, THE PLAINTIFF IN THE MAIN PROCEEDINGS, BY HELMUT VILLASCHEK, RECHTSANWAELT, FRANKFURT AM MAIN,

THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS, BY E . F . JACOBS, SECRETARY GENERAL IN THE MINISTRY OF FOREIGN AFFAIRS,

THE COMMISSION OF THE EUROPEAN COMMUNITIES, BY ITS LEGAL ADVISER, PETER KALBE,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 9 JUNE 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 8 OCTOBER 1987,

GIVES THE FOLLOWING

JUDGMENT

Grounds

1 BY ORDER OF 27 JUNE 1986, WHICH WAS RECEIVED AT THE COURT ON 27 AUGUST 1986, THE FINANZGERICHT BERLIN REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION 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 ), AS AMENDED BY COUNCIL REGULATION NO 1027/79 OF 8 MAY 1979 ( OFFICIAL JOURNAL 1979, L 134, P . 1 ), AND OF COMMISSION REGULATION NO 2784/79 OF 12 DECEMBER 1979 LAYING DOWN PROVISIONS FOR THE IMPLEMENTATION OF REGULATION NO 1798/75 ( OFFICIAL JOURNAL 1979, L 318, P . 32 ).

2 THE QUESTION WAS RAISED IN PROCEEDINGS BROUGHT BY NICOLET INSTRUMENT GMBH ( HEREINAFTER REFERRED TO AS "THE PLAINTIFF ") AGAINST THE DECISION OF THE HAUPTZOLLAMT BERLIN-PACKHOF OF 23 FEBRUARY 1982 TO THE EFFECT THAT THE MEASUREMENT DEVICE KNOWN AS THE "FOURIER-TRANSFORM INFRA-RED SPECTROMETER SYSTEM MODEL MX-1 E WITH ACCESSORIES" COULD NOT BE IMPORTED FREE OF COMMON CUSTOMS TARIFF DUTIES AND, CONSEQUENTLY, REQUIRING PAYMENT OF DM 8 759.38 CUSTOMS DUTY ON THE BASIS OF A VALUE FOR CUSTOMS PURPOSES OF DM 96 256.93 .

3 THE INSTRUMENT, WHICH CAME FROM THE UNITED STATES OF AMERICA, WAS IMPORTED BY THE PLAINTIFF AND SOLD TO THE ROBERT KOCH INSTITUT OF THE BUNDESGESUNDHEITSAMT ( FEDERAL HEALTH BOARD ) IN WEST BERLIN . IT WAS INTENDED TO BE USED BY THE LATTER FOR "EXAMINATION OF BACTERIAL CELL WALLS UNDER THE INFLUENCE OF ANTIBIOTICS AND CHEMOTHERAPY, EXAMINATION OF INTACT BACTERIA FOR THE PURPOSES OF THEIR DESCRIPTION AND IDENTIFICATION, AND THE EXAMINATION OF THE MEMBRANES OF SUCH BACTERIA FROM THE MEDICAL STANDPOINT ".

4 THE HAUPTZOLLAMT REFUSED TO GRANT EXEMPTION, PRINCIPALLY ON THE GROUND THAT THE IFS 110 AND IFS 85 INSTRUMENTS MANUFACTURED BY BRUKER ANALYTISCHE MESSTECHNIK GMBH, IN THE FEDERAL REPUBLIC OF GERMANY, WERE OF EQUIVALENT SCIENTIFIC VALUE . IN THE PROCEEDINGS BEFORE THE NATIONAL COURT, THE PLAINTIFF CLAIMED THAT THE HAUPTZOLLAMT' S DECISION WAS INCORRECT, BECAUSE THE PERFORMANCE OF THE INSTRUMENTS AVAILABLE IN THE COMMUNITY AT THAT TIME WAS TECHNICALLY DISPROPORTIONATE TO THE REQUIREMENTS OF THE RESEARCH PROJECT .

5 IN THOSE CIRCUMSTANCES, THE NATIONAL COURT REFERRED THE FOLLOWING QUESTION TO THE COURT OF JUSTICE :

"IS AN INSTRUMENT 'OF EQUIVALENT SCIENTIFIC VALUE' WITHIN THE MEANING OF REGULATION ( EEC ) NO 1798/75 OF THE COUNCIL IF, ALTHOUGH IT MAY BE USED IN CARRYING OUT THE INTENDED RESEARCH, ITS PERFORMANCE IS SO DISPROPORTIONATE THAT ON OBJECTIVE CONSIDERATION IT CANNOT REASONABLY BE CONSIDERED FOR USE IN SUCH RESEARCH?"

6 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS AND THE OBSERVATIONS SUBMITTED TO THE COURT, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

7 IN ITS ORDER FOR REFERENCE, THE NATIONAL COURT, AFTER FORMING THE VIEW THAT THE RESEARCH PROJECT COULD BE CARRIED OUT USING THE COMMUNITY INSTRUMENTS MANUFACTURED AT THE RELEVANT TIME, POINTS OUT THAT, ACCORDING TO ARTICLE 5 ( 2 ) OF REGULATION NO 2784/79, NEITHER THE FACT THAT AN INSTRUMENT IS CAPABLE OF A PERFORMANCE SUPERIOR TO THAT REQUIRED NOR ITS COMMERCIAL VALUE IS TO BE TAKEN INTO ACCOUNT IN ESTABLISHING THE EQUIVALENCE OF THE SCIENTIFIC VALUE OF THE INSTRUMENTS IN QUESTION . THE NATIONAL COURT NEVERTHELESS INCLINES TOWARDS THE VIEW THAT THE EQUIVALENCE OF SCIENTIFIC VALUE DEPENDS INTER ALIA ON THE PROPORTIONALITY OF THE MEANS EMPLOYED TO THE AIMS PURSUED . IT WOULD BE SCIENTIFICALLY ILLOGICAL TO RESOLVE PROBLEMS USING INAPPROPRIATE MEANS . IN PRINCIPLE, IT IS ONLY REASONABLE TO EXPECT THAT THE MEANS USED WOULD BE APPROPRIATE TO THE RESEARCH PROJECT .

8 IT IS APPARENT FROM THAT STATEMENT OF REASONS THAT, ESSENTIALLY, THE OBJECT OF THE QUESTION SUBMITTED BY THE NATIONAL COURT IS TO DETERMINE WHETHER, FOR THE PURPOSE OF GRANTING EXEMPTION, THE MERE FACT THAT AN INSTRUMENT OR APPARATUS MANUFACTURED IN THE COMMUNITY IS ABLE TO ACHIEVE PERFORMANCES FAR SUPERIOR TO THOSE WHICH ARE NECESSARY FOR THE RESEARCH PROJECT ENVISAGED PREVENTS IT FROM BEING CONSIDERED "OF EQUIVALENT SCIENTIFIC VALUE ".

9 ACCORDING TO ARTICLE 4 ( 2 ) OF REGULATION NO 1798/75, AS AMENDED BY REGULATION NO 1027/79, "THE GRANTING OF DUTY-FREE ADMISSION SHALL BE CONDITIONAL UPON ITS BEING ESTABLISHED, UNDER THE CONDITIONS LAID DOWN BY IMPLEMENTING PROVISIONS ADOPTED IN ACCORDANCE WITH THE PROCEDURE REFERRED TO IN ARTICLE 9, THAT INSTRUMENTS OR APPARATUS OF EQUIVALENT SCIENTIFIC VALUE TO THOSE INSTRUMENTS OR APPARATUS IN RESPECT OF WHICH DUTY-FREE ADMISSION IS REQUESTED ... ARE NOT BEING MANUFACTURED IN THE COMMUNITY ".

10 THE IMPLEMENTING PROVISIONS WERE ADOPTED BY REGULATION NO 2784/79 . ARTICLE 5 ( 2 ) THEREOF PROVIDES THAT ACCOUNT MAY BE TAKEN ONLY OF "SUCH TECHNICAL CHARACTERISTICS AS HAVE A DECISIVE INFLUENCE ON THE OUTCOME OF THE SPECIFIC WORK PLANNED ". THE SECOND SUBPARAGRAPH OF ARTICLE 5 ( 2 ) GOES ON TO SAY THAT, IN PARTICULAR, ACCOUNT IS NOT TO BE TAKEN OF "THE FACT THAT AN INSTRUMENT OR APPARATUS IS ABLE TO ACHIEVE PERFORMANCES SUPERIOR TO THOSE WHICH ARE NECESSARY FOR A PROPER EXECUTION OF THE SPECIFIC WORK TO BE CARRIED OUT ".

11 THOSE PROVISIONS MUST BE INTERPRETED IN THE LIGHT OF THE OBJECTIVES OF THE COMMUNITY LEGISLATION CONCERNED . ACCORDING TO THE PREAMBLE TO REGULATION NO 1798/75, DUTY-FREE ADMISSION OF SCIENTIFIC INSTRUMENTS AND APPARATUS SERVES IN PARTICULAR TO FACILITATE SCIENTIFIC RESEARCH WITHIN THE COMMUNITY, WHEREAS THE PURPOSE OF THE CONDITION AT ISSUE HERE IS TO ENSURE THAT THE POSSIBILITIES OF MANUFACTURE BY COMMUNITY INDUSTRY ARE TAKEN INTO ACCOUNT . IT IS THEREFORE NECESSARY TO BALANCE THE NEEDS OF COMMUNITY SCIENTIFIC RESEARCH AGAINST THE POSSIBILITIES OF DEVELOPMENT OF THE COMMUNITY INDUSTRY IN THE SECTOR OF SCIENTIFIC INSTRUMENTS AND APPARATUS .

12 IN THAT CONNECTION, IT MUST BE EMPHASIZED, AS THE COMMISSION HAS DONE IN ITS OBSERVATIONS SUBMITTED TO THE COURT, THAT THE RULES IN QUESTION DO NOT IMPOSE ANY OBLIGATION UPON RESEARCH INSTITUTES TO CHOOSE INSTRUMENTS OR APPARATUS MANUFACTURED IN THE COMMUNITY WHICH ARE SUITABLE FOR THE PLANNED RESEARCH PROJECTS . THEY MERELY LAY DOWN THE CIRCUMSTANCES IN WHICH IMPORTED INSTRUMENTS OR APPARATUS MUST BE ADMITTED FREE OF DUTY .

13 ACCORDINGLY, IT CANNOT BE CONCLUDED FROM THE PROVISIONS IN QUESTION THAT THE PRINCIPLE OF COMMUNITY PREFERENCE UNDERLYING THE COMMON CUSTOMS TARIFF IS TO BE SET ASIDE WHERE COMMUNITY INSTRUMENTS OR APPARATUS OFFER THE SAME POSSIBILITIES FOR ACCOMPLISHMENT OF THE RESEARCH PROJECTS AS IMPORTED INSTRUMENTS OR APPARATUS, BUT ENABLE SUPERIOR PERFORMANCES TO BE ACHIEVED WHICH ARE NOT NECESSARY FOR THE PROJECTS IN QUESTION .

14 THAT RESULT IS NOT AFFECTED BY THE PRINCIPLE OF PROPORTIONALITY WHICH IS GENERALLY RECOGNIZED BY COMMUNITY LAW . SINCE THE PRICE OF A SCIENTIFIC INSTRUMENT OR APPARATUS IS RELATED IN PARTICULAR TO THE PERFORMANCE WHICH IT IS ABLE TO ACHIEVE, THE PROBLEM FACED BY SCIENTIFIC INSTITUTIONS IN CIRCUMSTANCES SUCH AS THESE IS OF AN ECONOMIC RATHER THAN A TECHNICAL CHARACTER . A COMPARISON BETWEEN THE PERFORMANCES AND THE PRICES OF THE INSTRUMENTS OR APPARATUS AVAILABLE ON THE MARKET WOULD ENABLE SUCH INSTITUTES TO CHOOSE THE ONE BEST SUITED TO THEIR NEEDS, REJECTING THOSE WHOSE PERFORMANCES AND, THEREFORE, PRICES ARE DISPROPORTIONATE TO THOSE NEEDS . WHERE THE PERFORMANCE OF INSTRUMENTS OR APPARATUS OF COMMUNITY ORIGIN IS AT LEAST EQUAL TO THAT OF THE IMPORTED APPARATUS, THE FACT THAT IN MAKING THAT COMPARISON THE INSTITUTIONS MUST INCLUDE FOR THE LATTER INSTRUMENTS OR APPARATUS THE DUTIES UNDER THE COMMON CUSTOMS TARIFF CANNOT BE REGARDED AS CONTRARY TO THE PRINCIPLE OF PROPORTIONALITY .

15 THE REPLY TO THE QUESTION SUBMITTED MUST THEREFORE BE THAT 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 AND COMMISSION REGULATION NO 2784/79 OF 12 DECEMBER 1979 LAYING DOWN PROVISIONS FOR THE IMPLEMENTATION OF REGULATION NO 1798/75 MUST BE INTERPRETED AS MEANING THAT THE MERE FACT THAT AN INSTRUMENT OR APPARATUS MANUFACTURED IN THE COMMUNITY IS CAPABLE OF PERFORMANCES GREATLY SUPERIOR TO THOSE NECESSARY FOR THE PROPOSED RESEARCH PROJECT DOES NOT PREVENT ITS BEING REGARDED AS BEING "OF EQUIVALENT SCIENTIFIC VALUE" WITHIN THE MEANING OF THE ABOVEMENTIONED REGULATIONS .

Decision on costs

COSTS

16 THE COSTS INCURRED BY THE NETHERLANDS GOVERNMENT AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . SINCE THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS 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 ANSWER TO THE QUESTION REFERRED TO IT BY THE FINANZGERICHT BERLIN BY ORDER OF 27 JUNE 1986, HEREBY RULES :

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 AND COMMISSION REGULATION NO 2784/79 OF 12 DECEMBER 1979 LAYING DOWN PROVISIONS FOR THE IMPLEMENTATION OF REGULATION NO 1798/75 MUST BE INTERPRETED AS MEANING THAT THE MERE FACT THAT AN INSTRUMENT OR APPARATUS MANUFACTURED IN THE COMMUNITY IS CAPABLE OF PERFORMANCES GREATLY SUPERIOR TO THOSE NECESSARY FOR THE PROPOSED RESEARCH PROJECT DOES NOT PREVENT ITS BEING REGARDED AS BEING "OF EQUIVALENT SCIENTIFIC VALUE" WITHIN THE MEANING OF THE ABOVEMENTIONED REGULATIONS .