1 BY ORDER OF 21 DECEMBER 1983 , WHICH WAS RECEIVED AT THE COURT ON 4 JANUARY 1984 , THE HESSISCHES FINANZGERICHT REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE VALIDITY OF COMMISSION DECISION NO 82/83/EEC OF 23 DECEMBER 1981 ESTABLISHING THAT THE APPARATUS DESCRIBED AS ' QUANTA RAY ND : YAG LABORATORY LASER SYSTEM , MODEL DCR-1A ' MAY NOT BE IMPORTED FREE OF COMMON CUSTOMS TARIFF DUTIES ( OFFICIAL JOURNAL 1982 , L 41 , P.50 ).
2 THAT QUESTION WAS RAISED IN PROCEEDINGS BROUGHT BY THE JOHANN-WOLFGANG-GOETHE-UNIVERSITAT , FRANKFURT AM MAIN , ( HEREINAFTER REFERRED TO AS ' THE PLAINTIFF ' ) AGAINST THE REFUSAL OF THE GERMAN CUSTOMS AUTHORITIES TO PERMIT IMPORTATION FREE OF CUSTOMS DUTY IN MARCH 1980 OF A LASER-BEAM SYSTEM WITH ANCILLARY EQUIPMENT MADE BY THE COMPANY QUANTA RAY IN THE UNITED STATES , WHICH THE UNIVERSITY INTENDED TO USE FOR RESEARCH INTO ' CHEMILUMINESCENT ATOMIC REACTIONS , DE-ACTIVATING OF EXCITED IODINE ATOMS BY CHEMICAL AND PHYSICAL QUENCHING , FORMATION OF EXCITED IODINE MOLECULES AND MONITORING OF CHEMILUMINESCENCE ' .
3 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT THE GERMAN AUTHORITIES REFERRED TO THE COMMISSION THE OBJECTION LODGED BY THE PLAINTIFF AGAINST THE REFUSAL OF ITS APPLICATION FOR IMPORTATION FREE OF CUSTOMS DUTY , WHICH IT HAD SUBMITTED IN ACCORDANCE WITH THE PROVISIONS 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 WITH EFFECT FROM 1 JANUARY 1980 BY REGULATION NO 1027/79 OF 8 MAY 1979 ( OFFICIAL JOURNAL 179 , L 134 , P . 1 ) AND BY 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 ).
4 IN DECISION NO 82/83 , THE COMMISSION STATED THAT THE CONDITIONS LAID DOWN IN ARTICLE 3 ( 1 ) ( B ) OF THE AFOREMENTIONED REGULATION NO 1798/75 WERE NOT FULFILLED BECAUSE APPARATUS OF EQUIVALENT SCIENTIFIC VALUE CAPABLE OF BEING USED FOR THE SAME PURPOSES WAS ' CURRENTLY BEING MANUFACTURED IN THE COMMUNITY ' . THE COMMISSION REFERRED IN THAT CONNECTION TO THE APPARATUS ' LASER A YAG 10 HZ ' , MANUFACTURED BY THE FRENCH UNDERTAKING QUANTEL . AS A RESULT OF THAT DECISION , THE GERMAN AUTHORITIES REJECTED THE PLAINTIFF ' S OBJECTION .
5 IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , THE PLAINTIFF CLAIMED THAT THE APPARATUS MANUFACTURED IN THE COMMUNITY AT THAT TIME , PARTICULARLY QUANTEL ' S ' LASER A YAG 10 HZ ' , WAS NOT EQUIVALENT TO THE IMPORTED APPARATUS AND THAT THE RESEARCH PROGRAMME COULD NOT BE CARRIED OUT WITH SUCH APPARATUS . IT REFERRED IN THAT CONNECTION TO A STUDY CARRIED OUT BY A PROFESSOR AT THE UNIVERSITY OF MUNICH WHO COMPARED THE CHARACTERISTICS OF THE TWO APPARATUS AT ISSUE ON THE BASIS OF THE OFFERS MADE AND THE SPECIFICATIONS SUPPLIED BY BOTH UNDERTAKINGS WHEN THE IMPORTED APPARATUS WAS ORDERED , THAT IS TO SAY ON 19 NOVEMBER 1979 .
6 IN THE GROUNDS OF ITS ORDER FOR REFERENCE , THE NATIONAL COURT OBSERVES THAT THAT OPINION PROVIDES SOME INDICATION THAT WHEN THE APPARATUS IN QUESTION WAS ORDERED OR IMPORTED EQUIVALENT APPARATUS WAS NOT MANUFACTURED IN THE COMMUNITY . IT CONSIDERS THAT VIEW TO BE JUSTIFIED IN ANY CASE IF THE TERM ' EQUIVALENT ' IS GIVEN A STRICT INTERPRETATION AND UNDERSTOOD TO MEAN THAT APPARATUS IS NOT EQUIVALENT IF THE PERFORMANCE EXPECTED OF THE IMPORTED APPARATUS BY THE PARTICULAR USER , HAVING REGARD TO THE SCIENTIFIC PURPOSE WHICH THE APPRATUS IS INTENDED TO SERVE , IS SUPERIOR TO THAT OF THE APPARATUS MANUFACTURED IN THE COMMUNITY .
7 IT WAS IN THOSE CIRCUMSTANCES THAT THE NATIONAL COURT REFERRED THE FOLLOWING QUESTION TO THE COURT OF JUSTICE : ' IS COMMISSION DECISION NO 82/83/EEC OF 23 DECEMBER 1981 ON THE ' QUANTA RAY ND : YAG LABORATORY LASER SYSTEM , MODEL DCR-1A ' INVALID ON THE GROUND THAT , ALTHOUGH EQUIVALENT APPARATUS , AS THE COMMISSION STATED , IS MANUFACTURED IN THE COMMUNITY , THE LATTER IS INFERIOR IN PERFORMANCE TO THE IMPORTED APPARATUS , ESPECIALLY HAVING REGARD TO THE SPECIFIC PURPOSE FOR WHICH IT IS INTENDED? '
8 IN THE WRITTEN OBSERVATIONS WHICH IT SUBMITTED TO THE COURT , THE PLAINTIFF OBSERVES THAT THE COMMISSION DID NOT TAKE ACCOUNT OF THE REQUIREMENTS SPECIFIC TO THE EXPERIMENTS INTENDED TO BE CARRIED OUT AS PART OF THE RESEARCH PROJECT , WHICH WERE INDICATED IN THE APPLICATION TO IMPORT THE QUANTA RAY APPARATUS FREE OF DUTY . THE COMMISSION ' S DECISION IS BASED ON AN ERROR OF LAW BECAUSE IT MERELY ACCEPTED AS ITS CRITERION GENERAL EQUIVALENCE OF THE APPARATUS FOR THE SAME PURPOSES . IT TOOK NO ACCOUNT OF THE SPECIFIC PURPOSE OF THE RESEARCH PROJECT FOR WHICH THE APPARATUS WAS IMPORTED , AS IT WAS REQUIRED TO DO BY REGULATION NO 1798/75 . FURTHERMORE , THE COMMISSION ' S DECISION ITSELF STATES THAT THE QUESTION OF EQUIVALENCE WAS CONSIDERED WITH REFERENCE TO THE DATE OF THE DECISION , WHICH IS CONTRARY TO REGULATION NO 1798/75 . LASTLY , THERE IS NO EVIDENCE IN THE DECISION OF ANY EXERCISE OF DISCRETION ON THE PART OF THE COMMISSION BECAUSE IT MERELY REPEATS ITS EARLIER DECISION CONCERNING AN APPARATUS OF THE SAME TYPE WHICH WAS INTENDED TO BE USED IN ANOTHER RESEARCH PROJECT .
9 THE PLAINTIFF ALSO STATES THAT BEFORE ORDERING THE APPARATUS , IT APPROACHED QUANTEL BUT NONE OF THE MODELS IN THAT COMPANY ' S CATALOGUES MET ALL THE REQUIREMENTS OF THE PROPOSED RESEARCH PROJECT . QUANTEL MADE NO SUGGESTION THAT ONE OF ITS MODELS MIGHT BE MODIFIED TO MEET THOSE REQUIREMENTS AND IN ANY EVENT SUCH A MODIFICATION WOULD , IN THE PLAINTIFF ' S VIEW , HAVE BEEN IMPOSSIBLE FOR SCIENTIFIC REASONS .
10 THE COMMISSION EMPHASIZES THAT THE CONTESTED DECISION WAS ADOPTED ON THE BASIS OF THE OPINION OF THE GROUP OF EXPERTS PROVIDED FOR IN ARTICLE 7 ( 5 ) OF REGULATION NO 2784/79 . ALL THE RELEVANT INFORMATION WAS PLACED AT THE DISPOSAL OF THAT GROUP , IN PARTICULAR BY THE PLAINTIFF . MOREOVER , THE EXPERTS WERE FAMILIAR WITH THE TECHNICAL QUESTIONS INVOLVED SINCE SIMILAR APPARATUS MADE BY THE SAME FIRMS HAD ALREADY BEEN EVALUATED IN CONNEXION WITH THE ADOPTION OF COMMISSION DECISION NO 80/291 OF 18 FEBRUARY 1980 ESTABLISHING THAT THE CONDITIONS REQUIRED FOR THE ADMISSION FREE OF COMMON CUSTOMS DUTY OF THE SCIENTIFIC APPARATUS DESCRIBED AS ' QUANTA RAY , DCR LABORATORY LASER SYSTEM ' WERE NOT FULFILLED ( OFFICIAL JOURNAL 1980 , L 67 , P . 23 ).
11 THE COMMISSION CONTENDS THAT THE STARTING POINT FOR COMPARISON OF THE APPARATUS MUST BE THE NATURE OF THE RESEARCH PROJECT AND NOT THE PARTICULAR REQUIREMENTS SPECIFIC TO THE CASE IN QUESTION . OTHERWISE THE RESEARCH PROJECT COULD ALWAYS BE DEFINED IN SUCH A PARTICULAR WAY THAT ONLY ONE SPECIFIED ITEM OF IMPORTED APPARATUS WOULD BE SUITABLE FOR IT . MOREOVER , A COMPARISON BASED TO SUCH AN EXTENT ON A SPECIFIC EXPERIMENT WOULD MAKE IT VIRTUALLY IMPOSSIBLE FOR THE GROUP OF EXPERTS TO ARRIVE AT A DECISION UNLESS THEY HAD PRIOR KNOWLEDGE OF EVERY DETAIL OF THE PROPOSED EXPERIMENT . OWING IN PARTICULAR TO THE NUMBER OF DECISIONS WHICH MUST BE TAKEN AND THE COMPLEXITY OF SCIENTIFIC RESEARCH , SUCH AN APPROACH IS NOT FEASIBLE .
12 DURING THE ORAL PROCEDURE , THE COMMISSION ALSO STATED THAT THE FINDING OF THE GROUP OF EXPERTS REGARDING THE EQUIVALENCE OF THE APPARATUS MANUFACTURED IN THE COMMUNITY WAS BASED NOT ON QUANTEL ' S STANDARD MODELS BUT ON THE INFORMATION THAT QUANTEL WAS IN A POSITION TO BUILD TO ORDER A SPECIFIC APPARATUS WHICH WOULD MEET ALL THE REQUIREMENTS OF THE PLAINTIFF ' S INTENDED RESEARCH PROJECT .
13 AT THE REQUEST OF THE COURT , THE COMMISSION PRODUCED A LETTER FROM QUANTEL , DATED 26 OCTOBER 1984 , FROM WHICH IT APPEARS IN PARTICULAR THAT IN NOVEMBER 1979 QUANTEL WAS IN A POSITION TO PRODUCE AND DELIVER WITHIN THREE TO FOUR MONTHS OF RECEIVING THE ORDER , EQUIPMENT WHICH WAS EQUIVALENT TO THE QUANTA RAY COMPANY ' S APPARATUS .
14 WITH REGARD TO THOSE ARGUMENTS , IT MUST BE NOTED FIRST THAT THE QUESTION OF THE POSSIBLE EQUIVALENCE OF COMMUNITY APPARATUS MUST BE DECIDED , AS THE COMMISSION HAS IN FACT ADMITTED , ON THE BASIS OF THE FACTUAL SITUATION PREVAILING WHEN THE IMPORTED APPARATUS WAS ORDERED AND OF THE RELEVANT RULES IN FORCE AT THAT TIME .
15 ACCORDING TO ARTICLE 3 ( 1 ) ( B ) OF REGULATION NO 1798/75 , IMPORTATION FREE OF CUSTOMS DUTIES IS PERMITTED ONLY IF INSTRUMENTS OR APPARATUS OF EQUIVALENT SCIENTIFIC VALUE ARE NOT BEING MANUFACTURED IN THE COMMUNITY .
16 ACCORDING TO THE SECOND INDENT OF ARTICLE 3 ( 3 ) OF THE REGULATION , IN THE VERSION IN FORCE WHEN THE ORDER WAS PLACED , EQUIVALENT SCIENTIFIC VALUE IS TO BE ASSESSED ' BY COMPARING THE CHARACTERISTICS AND SPECIFICATIONS OF THE INSTRUMENT OR APPARATUS FOR WHICH APPLICATION IS MADE FOR THE EXEMPTION . . . WITH THOSE OF THE CORRESPONDING INSTRUMENT OR APPARATUS MANUFACTURED IN THE COMMUNITY TO DETERMINE WHETHER THE LATTER COULD BE USED FOR THE SAME SCIENTIFIC PURPOSES AS THOSE FOR WHICH THE INSTRUMENT OR APPARATUS FOR WHICH THE APPLICATION FOR EXEMPTION IS INTENDED AND WHETHER ITS PERFORMANCE WOULD BE COMPARABLE TO THAT EXPECTED OF THE LATTER ' .
17 FINALLY , THE THIRD INDENT OF THAT ARTICLE PROVIDES THAT A SCIENTIFIC INSTRUMENT OR APPARATUS IS TO BE ' REGARDED AS BEING MANUFACTURED IN THE COMMUNITY WHERE ITS DELIVERY PERIOD FROM THE TIME OF THE ORDER IS NOT , ACCOUNT BEING TAKEN OF COMMERCIAL PRACTICES IN THE MANUFACTURING SECTOR UNDER CONSIDERATION , APPRECIABLY LONGER THAN THE DELIVERY PERIOD OF THE INSTRUMENT OR APPARATUS FOR WHICH APPLICATION IS MADE FOR THE EXEMPTION . . . OR WHERE THIS PERIOD DOES NOT EXCEED THE LATTER TO SUCH AN EXTENT THAT THE INTENDED PURPOSE OR USE FOR WHICH THE INSTRUMENT OR APPARATUS WAS INITIALLY INTENDED WOULD BE APPRECIABLY AFFECTED THEREBY ' .
18 AS THE COURT HAS STATED , MOST RECENTLY IN ITS JUDGMENT OF 25 OCTOBER 1984 ( CASE 185/83 INTERFACULTAIR INSTITUUT ELECTRONENMICROSCOPIE V INSPECTEUR DER INVOERRECHTEN EN ACCIJNCEN ( 1984 ) ECR 3623 ), 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 INSTRUMENTS .
19 HOWEVER , IT IS CLEAR BOTH FROM THAT JUDGMENT AND FROM THE VERY TERMS OF THE SECOND INDENT OF ARTICLE 3 ( 3 ) OF REGULATION NO 1798/75 , THAT THE STARTING POINT OF THAT OBJECTIVE DETERMINATION IS THE SPECIFIC RESEARCH PROJECT ENVISAGED BY THE USER OF THE IMPORTED APPARATUS . THE GROUP OF EXPERTS IS NOT THEREFORE FREE TO BASE ITS DETERMINATION ON THE GENERAL NATURE OF THE PROJECT . IF IT DID SO IN THIS CASE , THE CONTESTED DECISION IS VITIATED BY AN ERROR OF LAW .
20 FURTHERMORE , IT MUST BE EMPHASIZED THAT THE COMMISSION DID NOT DISPUTE THE FACT THAT THE TECHNICAL SPECIFICATIONS INDICATED IN THE APPLICATION TO IMPORT THE APPARATUS IN QUESTION FREE OF CUSTOMS DUTY WERE OBJECTIVELY NECESSARY TO CARRY OUT THE SPECIFIC RESEARCH PROJECT ENVISAGED BY THE PLAINTIFF AND THAT NONE OF QUANTEL ' S STANDARD MODELS MET ALL OF THOSE SPECIFICATIONS .
21 EVEN THOUGH , ACCORDING TO THE THIRD INDENT OF ARTICLE 3 ( 3 ) OF REGULATION NO 1798/75 , THE USER OF THE APPARATUS MUST ACCEPT A CERTAIN DELIVERY PERIOD FOR COMMUNITY APPARATUS , AN APPARATUS WHICH HAS NEVER BEEN PUT INTO PRODUCTION AND WHICH MUST BE BUILT IN ACCORDANCE WITH SPECIFIC INSTRUCTIONS FROM THE USER CANNOT BE DESCRIBED AS ' BEING MANUFACTURED IN THE COMMUNITY ' OR , IN THE TERMS USED TO EXPRESS THE SAME IDEA IN THE THIRD RECITAL IN THE PREAMBLE TO THE REGULATION , ' AVAILABLE . . . IN THE COMMUNITY ' . IT FOLLOWS THAT , AT LEAST IN THAT RESPECT , THE CONTESTED DECISION IS VITIATED BY A MANIFEST ERROR OF LAW .
22 THE REPLY TO THE QUESTION SUBMITTED BY THE HESSISCHES FINANZGERICHT MUST THEREFORE BE THAT COMMISSION DECISION NO 82/83/EEC OF 23 DECEMBER 1981 ESTABLISHING THAT THE APPARATUS DESCRIBED AS ' QUANTA RAY ND : YAG LABORATORY LASER SYSTEM , MODEL DCR-1A ' MAY NOT BE IMPORTED FREE OF COMMON CUSTOMS TARIFF DUTIES IS INVALID .