1 BY ORDER OF 21 JANUARY 1987, WHICH WAS RECEIVED AT THE COURT ON 10 FEBRUARY 1987, THE HESSISCHE FINANZGERICHT REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE VALIDITY OF COMMISSION DECISION C(85 ) 1661/2 OF 18 OCTOBER 1985 DETERMINING THAT THE APPARATUS "NICOLET DATA ACQUISITION AND PROCESSING SYSTEM, MODEL NIC-1180" MAY NOT BE IMPORTED FREE OF IMPORT DUTIES .
2 THE QUESTION WAS RAISED IN PROCEEDINGS BROUGHT BY NICOLET INSTRUMENT GMBH ( HEREINAFTER REFERRED TO AS "NICOLET "), A GERMAN SUBSIDIARY OF AN AMERICAN MANUFACTURER, AGAINST THE HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) FRANKFURT-AM-MAIN AIRPORT . BEFORE THE COMMENCEMENT OF THE PRESENT PROCEEDINGS, THE DISPUTE HAD LED THE HESSISCHE FINANZGERICHT TO SEEK A PRELIMINARY RULING FROM THE COURT UNDER ARTICLE 177 OF THE TREATY ON THE VALIDITY OF AN EARLIER DECISION ( DECISION 80/716/EEC OF 7 JULY 1980 ) WHEREBY THE COMMISSION FOUND THAT THE NIC-1180 APPARATUS WAS NOT SCIENTIFIC IN CHARACTER .
3 BY JUDGMENT OF 7 MARCH 1985 IN CASE 30/84 NICOLET INSTRUMENT GMBH V HAUPTZOLLAMT FRANKFURT-AM-MAIN FLUGHAFEN (( 1985 )) ECR 771, THE COURT HELD THAT DECISION 80/76 WAS INVALID AND THAT THE COMMISSION SHOULD RE-EXAMINE THE FILE WITH A VIEW TO MAKING A FRESH ASSESSMENT IN ACCORDANCE WITH THE CRITERIA LAID DOWN BY THE REGULATIONS WHICH IT HAD ITSELF ADOPTED AND WHICH WERE MENTIONED IN THE GROUNDS OF THE JUDGMENT .
4 ON THE BASIS OF DECISION C(85 ) 1661/2 OF 18 OCTOBER 1985, WHICH THE COMMISSION ADOPTED AS A RESULT OF THAT JUDGMENT, THE GERMAN CUSTOMS AUTHORITIES CONFIRMED THEIR REFUSAL TO GRANT EXEMPTION FROM CUSTOMS DUTIES .
5 IN THE PROCEEDINGS WHICH IT THEN INSTITUTED BEFORE THE HESSISCHES FINANZGERICHT, NICOLET OBJECTED TO THE COMMISSION' S FRESH DECISION BY REITERATING THE COMPLAINTS ADVANCED IN SUPPORT OF ITS SUBMISSION IN CASE 30/84 AND AGAIN PRODUCED THE EXPERTS' REPORTS SHOWING, IN ITS OPINION, THAT THE APPARATUS IN QUESTION IS A SCIENTIFIC APPARATUS .
6 IN THOSE CIRCUMSTANCE THE HESSISCHE FINANZGERICHT DECIDED TO REFER THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING : " IS COMMISSION DECISION C(85 ) 1661/2 OF 18 OCTOBER 1985, WHEREBY THE COMMISSION FOUND THAT THE APPARATUS 'NICOLET DATA ACQUISITION AND PROCESSING SYSTEM, MODEL NIC-1180' MAY NOT BE IMPORTED FREE OF IMPORT DUTIES, VALID?"
7 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE CASE AND THE LEGAL BACKGROUND, THE COURSE OF THE PROCEDURE AND THE WRITTEN OBSERVATIONS SUBMITTED TO THE COURT, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
8 THE VALIDITY OF THE COMMISSION' S DECISION MUST BE CONSIDERED IN THE LIGHT OF THE ARGUMENTS PUT FORWARD BY EACH OF THE PARTIES TO THE MAIN PROCEEDINGS .
9 NICOLET CONSIDERS THAT THE COMMISSION' S DECISION IS INVALID ON THE GROUNDS THAT IT WAS ADOPTED IN BREACH OF ITS FUNDAMENTAL RIGHT TO BE HEARD, THAT IT IS RETROACTIVE AND THAT IT IS BASED ON MANIFEST ERROR OF ASSESSMENT .
10 IN SUPPORT OF ITS FIRST COMPLAINT NICOLET CONTENDS THAT THE CONTESTED DECISION WAS ADOPTED IN BREACH OF ITS FUNDAMENTAL RIGHT TO BE HEARD, WHICH IS EMBODIED IN PARAGRAPH 20 OF THE BASIC LAW OF THE FEDERAL REPUBLIC OF GERMANY, IN SO FAR AS THE PROCEDURE FOLLOWED BY THE COMMISSION ALLOWED IT NO OPPORTUNITY TO EXPRESS ITS VIEWS ON THE NATURE OF AN APPARATUS WHICH IS, IN FACT, KNOWN ONLY TO ITS USERS .
11 COMMISSION DECISION C(85 ) 1661/2 OF 18 OCTOBER 1985, NOW SUBMITTED FOR REVIEW BY THE COURT, WAS ADOPTED ON THE BASIS 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 ) AND COMMISSION REGULATION ( EEC ) NO 2290/83 OF 29 JULY 1983 LAYING DOWN PROVISIONS FOR THE IMPLEMENTATION OF ARTICLES 50 TO 59 OF COUNCIL REGULATION NO 918/83 ( OFFICIAL JOURNAL 1983, L 220, P . 20 ).
12 THE PROVISIONS OF REGULATION NO 2290/83, WHICH LAY DOWN THE PROCEDURE FOR ADOPTING COMMISSION DECISIONS ON THE IMPORTATION FREE OF COMMON CUSTOMS TARIFF DUTIES OF EDUCATION, SCIENTIFIC AND CULTURAL MATERIALS, ARE IDENTICAL TO THOSE OF THE PREVIOUS COMMISSION REGULATION DEALING WITH THE SAME MATTER, NAMELY REGULATION ( EEC ) NO 2784/79 OF 12 DECEMBER 1979 ( OFFICIAL JOURNAL 1979, L 318, P . 32 ).
13 ACCORDING TO THE INTERPRETATION OF THAT 1979 REGULATION ALREADY GIVEN BY THE COURT IN ITS JUDGMENT OF 26 JUNE 1986 IN CASE 203/85 NICOLET INSTRUMENT GMBH V HAUPTZOLLAMT FRANKFURT-AM-MAIN FLUGHAFEN (( 1986 )) ECR 2049, THAT PROCEDURE IS INITIATED BY THE COMMISSION AT THE REQUEST OF THE MEMBER STATE IN WHICH IS SITUATED THE ESTABLISHMENT TO WHICH THE APPARATUS IS CONSIGNED, THAT MEMBER STATE BEING IN POSSESSION OF ALL THE TECHNICAL DATA, WHICH ARE FORWARDED TO IT BY THE PERSON SEEKING EXEMPTION FROM DUTY . THAT PROCEDURE PROVIDES NEITHER FOR THE PARTICIPATION OF THE PERSON APPLYING FOR DUTY-FREE IMPORTATION IN THE EXAMINATION CARRIED OUT BY THE EXPERTS FROM THE MEMBER STATES WITHIN THE FRAMEWORK OF THE COMMITTEE ON DUTY-FREE ARRANGEMENTS NOR FOR ANY RIGHT ON HIS PART TO BE HEARD BEFORE THE COMMISSION ADOPTS THE DECISION ESTABLISHING WHETHER OR NOT THE APPARATUS FULFILS THE CONDITIONS REQUIRED FOR ADMISSION FREE OF CUSTOMS DUTIES . FINALLY, IT MUST BE NOTED THAT THAT DECISION IS GENERAL IN SCOPE AND IS APPLICABLE IN ALL THE MEMBER STATES TO THE IMPORTATION BY ANY ORGANIZATION OR UNDERTAKING OF ALL APPARATUS OF THE SAME TYPE .
14 THEREFORE NICOLET CANNOT, IN ANY EVENT, CLAIM THAT THE COMMISSION' S DECISION WAS ADOPTED IN BREACH OF ITS RIGHT TO BE HEARD .
15 NICOLET CONTENDS IN THE SECOND PLACE THAT THE DECISION IS UNLAWFUL BECAUSE IT IS RETROACTIVE .
16 THAT CONTENTION CANNOT BE ACCEPTED . THE CONTESTED DECISION FOLLOWED A RE-EXAMINATION OF THE FILE BY THE COMMISSION AT THE REQUEST OF THE COURT IN ACCORDANCE WITH THE CRITERIA LAID DOWN IN ITS JUDGMENT OF 7 MARCH 1985 IN CASE 30/84 AND THE DECISION TAKES EFFECT ONLY AS FROM THE DATE OF ITS ADOPTION . IT THUS HAS NO RETROACTIVE EFFECT .
17 NICOLET ARGUES IN THE THIRD PLACE THAT THE CONTESTED DECISION IS VITIATED BY THE SAME ERROR OF ASSESSMENT AS THE DECISION DECLARED INVALID BY THE JUDGMENT IN CASE 30/84, NAMELY THAT IT RELIED ON GENERAL STATEMENTS APPLICABLE TO ALL COMPUTERS AND DID NOT CONTAIN ANY SUBSTANTIAL ARGUMENTS TO REFUTE THE FINDINGS IN THE EXPERT' S REPORT PRODUCED BY NICOLET ESTABLISHING THAT THE APPARATUS NIC-1180 WAS A SCIENTIFIC APPARATUS .
18 WITH REGARD TO THAT ARGUMENT IT MUST BE STATED IN THE FIRST PLACE THAT, ACCORDING TO THE VERY TERMS OF THE CONTESTED DECISION, THE EXPERT' S REPORT PRODUCED BY NICOLET WAS CONSIDERED AN INTEGRAL PART OF THE APPLICATION FOR EXEMPTION AND THAT EACH OF THE OBJECTIVE TECHNICAL CHARACTERISTICS RELIED ON IN THAT REPORT TO PROVE THE SCIENTIFIC CHARACTER OF THE APPARATUS WAS TAKEN INTO ACCOUNT BY THE COMMISSION .
19 THE EXAMINATION CONDUCTED IN THAT WAY CONFORMS WITH THE CRITERIA FOR ASSESSMENT LAID DOWN IN THE ABOVEMENTIONED COUNCIL AND COMMISSION REGULATIONS REFERRED TO BY THE COURT IN ITS JUDGMENT IN CASE 30/84, CITED ABOVE .
20 SECONDLY, THERE IS NOTHING TO SHOW THAT, EITHER IN ITS EXAMINATION OF THE VARIOUS OBJECTIVE TECHNICAL CHARACTERISTICS OF THE NIC-1180 APPARATUS UNDERLYING THE CONTESTED DECISION OR IN ITS CONCLUSION THAT THAT APPARATUS WAS NOT EXCLUSIVELY OR MAINLY SUITED TO SCIENTIFIC ACTIVITIES, THE COMMISSION MADE ANY MANIFESTLY ERRONEOUS ASSESSMENT .
21 ACCORDINGLY, THE ALLEGATION OF A MANIFEST ERROR OF ASSESSMENT LIKEWISE CANNOT BE UPHELD .
22 THE ANSWER TO BE GIVEN IN REPLY TO THE NATIONAL COURT MUST THEREFORE BE THAT CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A NATURE AS TO AFFECT THE VALIDITY OF DECISION C(85 ) 1661/2 OF 18 OCTOBER 1985 .