CELEX: 61982CC0300
Language: en
Date: 1983-09-22
Title: Opinion of Mr Advocate General VerLoren van Themaat delivered on 22 September 1983. # Gesamthochschule Essen v Hauptzollamt Düsseldorf. # Reference for a preliminary ruling: Finanzgericht Düsseldorf - Germany. # Common Customs Tariff - Exemption of scientific instruments and apparatus - Scientific aids and working materials. # Case 300/82.

OPINION OF MR ADVOCATE GENERAL
      VERLOREN VAN THEMAAT
      DELIVERED ON 22 SEPTEMBER 1983 (
            1
         )
      
         Mr President,
      
      
         Members of the Court
      
      1. Introduction
      Once again a question has been referred to the Court of Justice on exemption from Common Customs Tariff duties on the importation of scientific materials, which is provided for in Regulation No 1798/75 of the Council on the importation free of Common Customs Tariff duties of educational, scientific and cultural materials (Official Journal 1975, L 184, p. 1). It follows from the date of importation set out in the order for reference that in contrast to Case 294/81, in which the Court gave a ruling on 17 March 1983, the amendments introduced by Council Regulation No 1027/79 of 8 May 1979 (Official Journal, L 134, p. 1) were not yet applicable in this case. However, that should not, in may opinion, prevent the Court from taking into account explanations provided by the legislature which are apparent from the amending regulation of 1979 and from the new regulation of 1983 to which I shall refer below. It is only substantive amendments to the 1975 rules on exemption which obviously cannot be taken into consideration.
      This dispute concerns the importation of plastic blocks from the United States of America. It became clear during the oral procedure that the blocks in this; case were ordered and supplied in specified dimensions, based on the purposes of the research in question. This material is used for neutron dosimeters in biology and medicine. The effect and dosage of neutron rays cannot, on ethical and legal grounds, be tested by experiments on humans. The material apparently matches essential characteristics of human muscle tissue so that it is particularly suitable for tests with neutron rays. Moreover, it is universally accepted as a reference substance for the measurement of such rays. It cannot be put to any other use. The product is known under the name “phantom material A-150”. It is made by only one undertaking outside the Community, namely the Physical Sciences Laboratory, Illinois Benedictine College, Lisle, in the United States of America.
      It was imported for the Medical Radio-Physics Department of the Universitätsklinik [University Hospital] Essen in the framework of a research project on “tumor therapy with fast neutrons”, directed by the Federal Ministry of Research and Technology.
      2. Views of the parties
      On importation, the plaintiff claimed that the material gave rise to a claim for exemption from import duties, particularly by reason of its scientific character. The Customs Office did not agree, because it considered that the material could not be regarded as an “instrument or apparatus”, as required by Article 3 (1) of Regulation No 1798/75, since it was the object rather than the subject being measured. According to the Hauptzollamt [Principal Customs Office] it was the material on which, and not with which, research was carried out, and as such was not exempt from duty.
      The Finanzgericht [Finance Court] before which an action was brought is inclined to adopt a wide definition of the expression “instrument”, which is not defined as such in Article 3 of Regulation No 1798/75. It relies on the etymological meaning of the word in German, which means a “medium” for something, in this case a means to a scientific purpose. It further refers to the first recital in the preamble to the regulation, which states inter alia that: “in order to facilitate ... the exercise of scientific research within the Community, it is necessary to allow, by all possible means, the admission free of Common Customs Tariff duties of ... scientific ... materials”.
      As the Finanzgericht correctly considers that it is for the Court of Justice to give an interpretation of the expression“instrument” in the regulation in question and that it may not decide the matter for itself, it has submitted the following question to the Court:
      “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?”
      As regards the observations of the Commission and the Gesamthochschule, I refer to the Report for the Hearing.
      In summary, the observations of the Gesamthochschule emphasize the important scientific function of the material. During the oral procedure, its. representative further added that the material ordered and supplied in specified dimensions fulfils scientific functions which may be compared to those of a prism and constitutes an indispensable means of measuring the effects of certain rays. The relevance of the latter comparison has not, in my opinion, been convincingly refuted by the Commission. The Commission considers that the material cannot be covered by the concept of “instrument”, since it consists purely of chemical elements or chemical compounds. It recognizes, however, the considerable scientific value of those substances for scientific research. Furthermore, it seems to me that with regard to the Commission's viewpoint its basic definition of the expression “scientific instrument or apparatus” set out in the second paragraph on page 5 of its observations, is relevant. That expression relates essentially, in its view, to technical equipment, which, by reason of its structure and mode of operation, is suited for use in scientific research, that is to say, objects which are made up from certain materials by means of a technical process and which, by virtue of their function, constitute in a sense “instruments” of research. As will become apparent, I consider that basic definition by the Commission to be applicable in the main to this case. However, on the basis of a similar definition I then reach a different conclusion in relation to the product in question. In support of that basic description, the Commission also refers to the first indent of Article 3 (3) of Regulation No 1027/79, in which the same criteria are in fact to be found.
      3. Consideration of the question.
      As regards the answer to the question put to the Court, I would first observe that, apart from the question whether the phantom material can be regarded as an “instrument”, it is not disputed that the other conditions laid down in Article 3 for exemption from import duties are fulfilled. It is established that the material is intended for pure scientific research in an establishment referred to in Article 3 (1) (a) and that no material of equivalent scientific value is being manufactured in the Community, as required by Article 3 (1) (b).
      Furthermore, I would point out that the court making the reference seeks only an interpretation of the expression “instrument” and does not also ask the interpretation of the expression “apparatus”. In addition, it is only in the German version that the regulation contains the three terms “Instrumente, Apparate and Geräte”. The other languages refer merely to “instruments or apparatus”. No significance should, in my opinion, be ascribed to that distinction, especially in this case since it is concerned especially with the concept of “instrument”. In the Commission's observations in Case 45/83, Ludwig-Maximilian Universität München, it is in any event pointed out that the word “Geräte” has since been omitted in Council Regulation No 918/83 setting up a Community system of reliefs from customs duty (Official Journal, L 105, p. 1)
      It may further be established that the two concepts “instrument” and “apparatus” are not defined as such in Regulation No 1798/75 or in the Florence Agreement, on which the regulation is in the main, according to its first recital, based. Article 3 (3) of Regulation No 1027/79 (Official Journal, L 134, p. 1) which amended Regulation No 1798/75 and entered into force on 1 January 1980, also provides no definition, since it states simply that:
      “For the purposes of this article:
      ‘A scientific instrument or apparatus’ shall mean any instrument or apparatus which, by reason of its objective technical characteristics and the results which it makes it possible to obtain is mainly or exclusively suited to scientific activities.”
      In those circumstances I should like to refer first of all to the objective pursued by the Florence Agreement and consequently also by Regulation No 1798/75.
      According to the Agreement, the free exchange of ideas and knowledge is vitally important both for intellectual progress and international understanding, and consequently for the maintenance of world peace. That interchange is accomplished primarily by means of books, publications and educational, scientific and cultural materials. In Article 1 the contracting States undertake not to apply customs duties or other charges on, or in connection with, the importation of inter alia scientific materials listed in Annex D to the agreement. In that annex, which is entitled “Scientific Instruments or Apparatus”, the conditions for exemption are then set out. The objective of Regulation No 1798/75 is set out in the first recital thereto, which states that, “in order to facilitate the free exchange of ideas as well as the exercise of cultural activities and scientific research within the Community, it is necessary to allow, by all possible means, the admission free of Common Customs Tariff duties of educational, scientific and cultural materials”.
      Articles 1 and 2 provide that “educational, scientific and cultural materials” listed in Annexes 1 and 2 respectively are to be admitted free of import duties on the conditions set out. Article 3, which is at issue in this case, then provides, so far as is relevant here:
      “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: ...”
      (There follow the conditions which, as stated above, are in each case met).
      The difference between the general scheme of Articles 1 and 2, on the one hand, and that of Article 3, on the other, is in my opinion of no importance in relation to the question in this case. It may be concluded that Article 3 has a wide scope since it concerns the rules on exemption for instruments and apparatus not included in Article 2.
      I cannot subscribe to the limited interpretation of the expression “instrument” put forward by the customs authority and the Commission. Nor, in my opinion, does such an interpretation necessarily follow from the basic definition of that expression put forward by the Commission, which I have cited. Yet I agree with the Commission that the Zollamt's criterion for making a distinction, namely that it is a question of the difference between the material on which and material with which research is carried out, is in practice (and in my view also on epistemological grounds) unusable.
      As I have already stated, the expression “instrument” is not itself defined in the regulation in question or in the Florence Agreement.
      From an examination of a number of dictionaries, the meaning of the expression “instrument” has been established as a “means” of achieving a particular goal, as has also been stated by the Finanzgericht.
      As regards French, Petit Robert gives the following definition of the French word “instrument”: “objet fabriqué servant à exécuter quelque chose”;, the Shorter Oxford English Dictionary gives an even more general definition: “Instrument — a thing with or through which something is done or effected”.
      The interpretation of that concept in those two languages is of particular importance, inasmuch as they are the authentic languages of the Florence Agreement. However, I agree with the Commission that the question of interpretation submitted to the Court cannot be answered exclusively on the basis of dictionary definitions. Account must be taken of the specific context in which the concepts are used.
      In that regard, it is in my view of primary importance that according to the preamble to the agreement and the recitals in the preamble to the regulation the criteria for exemption should not be narrowly interpreted. The judgments of the Court also militate in favour of a wide interpretation. I refer in that regard to Cases 72/77, Universiteitskliniek Utrecht v Inspecteur der Invoerrechten en Accijnzen, Utrecht, [1978] ECR 189 at p. 196, and 294/81, Control Data v Commission [1983] ECR 911, at paragraph 23, although those cases concerned the question whether the instrument or apparatus in question was intended for scientific research rather than the nature of the instrument. From the abovementioned first recital in the preamble to the regulation and from its general scheme, however, it may certainly be inferred, in my view, that the expression “instrument” must also be interpreted broadly. Not only does the recital state that it is necessary to allow, by all possible means, the admission free of duties of “scientific ... materials”, from which it follows that the emphasis is laid not so much on the special nature of the material but rather on its scientific nature (in this case the use for which it is intended). In addition, it may be inferred from the third recital and also from Article 3 (1) (b) that, apart from the positive requirement that the material or the use for which it is intended should be scientific, the negative condition that materials of equivalent scientific value are not being manufactured in the Community is of particular importance in delimiting the exemptions granted.
      Accordingly, I would point out that the phantom material fulfils an essential function in research into the consequences of neutron rays. I agree with the Commission that the material derives its important scientific value from the substances of which it is made up. However, I see no reason why the product can therefore not be regarded as an instrument in neutron research. It is apparently only by the use of that product that the research can be successful.
      However, I feel that further comments are needed concerning the boundary between such a wide interpretation of the expression “instrument” (or apparatus) and the expression “biological or chemical substances”. During the oral procedure the Commission correctly pointed out that Article 60 of Council Regulation No 918/83 of 28 March 1983 (Official Journal, L 105, p. 1) provides for special relief in respect of biological or chemical substances imported for noncommercial purposes including inter alia scientific research. That article clearly presupposes that such biological or chemical substances are not covered by the expression “scientific instrument or apparatus” used in Article 54. For the purposes of this case, the following criteria seem to me to be sufficient in this connection. First, it follows from the first recital to Regulation (EEC) No 1798/75, already referred to on more than one occasion, that an instrument must in any event also be a “material” [voorwerp]. Liquids or solid substances which are supplied not with fixed dimensions but in quantities determined by weight or capacity cannot possibly be regarded as “materials” (
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         ) according to everyday usage, even if they nevertheless are meant to fulfil an “instrumental” function in scientific research. Secondly, it follows from the third recital, also cited above, and from Article 3 (1) (b) of the regulation in question that the material must be manufactured (by craftsmen, in a factory or in a laboratory). If, for the purpose of research, into radiation such as that concerned here, monkeys or other animals were to be imported, they would on that ground alone be unable to benefit from the exemption. Biological or mineral elements and semi-finished articles also fail to comply with this second criterion. So far as semi-finished materials are concerned, that is confirmed by the express decision referred to in the final paragraph on page 8 of the Commission's observations. Thirdly, I consider that it follows indirectly from Article 3 (1) (b) that the materials (finished articles) must be of a relatively high technical quality. The requirement that “instruments or apparatus of equivalent scientific value are not being manufactured in the Community” in fact presupposes that the products in question cannot simply be copied, because, for example, they are protected by a patent or require complex technical “know-how”.
      In the light of the considerations set out above, I therefore conclude that a material with fixed dimensions which fulfils an essential function in scientific research and is manufactured for that purpose in a laboratory or in an industrial or craft undertaking may be regarded as an instrument within the meaning of Article 3 of Regulation No 1798/75. As I have already stated, this definition is not essentially different from the general definition proposed by the Commission itself. However, in order to avoid unnecessarily anticipating other cases, I suggest that the Court should limit its reply to the product at issue here.
      I therefore propose that the Court should give the following answer to the question referred to it:
      The expression “scientific instrument” in Article 3 of Regulation No 1798/75 should be interpreted as including phantom material A-150, made up of plastic blocks and intended for radiological research, inasmuch as the material fulfils an essential scientific function in that research and is made in special fixed dimensions suited to that research.
      (
            1
         )	Translaced from the Dutch.
      (
            2
         )	Translator's note: The word “voorwerp” in Dutch is more aptly translated by “object” or “article” than by “material”.