1 BY ORDER OF 5 NOVEMBER 1976 , WHICH WAS RECEIVED AT THE COURT REGISTRY ON 3 JANUARY 1977 , THE FINANZGERICHT HAMBURG REFERRED TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY A PRELIMINARY QUESTION ON THE INTERPRETATION OF REGULATION NO 803/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES ( OJ ENGLISH SPECIAL EDITION 1968 ( I ), P . 170 ) AND IN PARTICULAR ARTICLE 3 THEREOF . THE QUESTION HAS ARISEN IN THE CONTEXT OF A DISPUTE CONCERNING THE VALUATION FOR CUSTOMS PURPOSES OF A COS ( CAST-ON STRAP ) MACHINE PROTECTED BY AN INVENTION PATENT CALLED A PRODUCT PATENT ( SACHPATENT ) WHILE , ON THE OTHER HAND , THE PROCESS ENABLING THE MACHINE TO BE USED FOR THE MANUFACTURE OF TERMINAL BRIDGES FOR LEAD-ACID BATTERIES IS ALSO PROTECTED BY ANOTHER INVENTION PATENT CALLED A PROCESS PATENT ( VERFAHRENSPATENT ). THE QUESTION CONCERNS WHETHER , IN THE DETERMINATION OF THE ' NORMAL PRICE ' , THAT IS , OF THE VALUE FOR CUSTOMS PURPOSES OF THE MACHINE , IT IS NECESSARY TO TAKE INTO ACCOUNT THE PATENT FOR THE PROCESS RELATING TO ITS USE , OR MORE PARTICULARLY : ' IS ARTICLE 3 ( 1 ) OF REGULATION ( EEC ) NO 803/68 OF THE COUNCIL ( A REGULATION ON VALUATION FOR CUSTOMS PURPOSES ) TO BE INTERPRETED AS MEANING THAT THE NORMAL PRICE ALSO INCLUDES THE VALUE OF A PATENTED PROCESS EMBODIED IN AN APPLIANCE WITHIN THE MEANING OF THE JUDGMENT OF 7 AUGUST 1962 OF THE BUNDESFINANZHOF ( FEDERAL FINANCE COURT ), FILE NO VII 89/60 U , BUNDESSTEUERBLATT ( FEDERAL TAX JOURNAL ) III 1962 , P . 549 ' ?
2 THE ABOVEMENTIONED JUDGMENT OF THE BUNDESFINANZHOF WAS GIVEN IN APPLICATION OF NATIONAL RULES AND CASE-LAW RELEVANT AT THAT TIME WHICH HAVE MEANWHILE BEEN REPLACED BY COMMUNITY RULES AND IT IS THEREFORE NECESSARY TO EXAMINE THE PROBLEM SOLELY IN THE LIGHT OF THE RULES OF COMMUNITY LAW WHICH ARE APPLICABLE .
3 ARTICLE 1 OF REGULATION 803/68 PROVIDES THAT : ' FOR THE PURPOSE OF APPLYING THE COMMON CUSTOMS TARIFF , THE VALUE FOR CUSTOMS PURPOSES OF THE GOODS IMPORTED SHALL BE TAKEN TO BE THE NORMAL PRICE , THAT IS TO SAY , THE PRICE WHICH THEY WOULD FETCH . . . ON A SALE IN THE OPEN MARKET BETWEEN A BUYER AND A SELLER INDEPENDENT OF EACH OTHER ' . THE FOLLOWING ARTICLES LAY DOWN HOW THAT BASIC PROVISION IS TO BE APPLIED IN DETAIL SO AS TO TAKE INTO ACCOUNT VARIOUS FACTORS WHICH ARE CAPABLE OF INFLUENCING THE PRICE OF THE GOODS . ARTICLE 3 ( 1 ) ( A ) PROVIDES THAT : ' WHEN THE GOODS TO BE VALUED ARE MANUFACTURED IN ACCORDANCE WITH ANY PATENTED INVENTION OR ARE GOODS TO WHICH ANY PROTECTED DESIGN HAS BEEN APPLIED . . . THE NORMAL PRICE SHALL BE DETERMINED ON THE ASSUMPTION THAT IT INCLUDES THE VALUE OF THE RIGHT TO USE THE PATENT . . . ( OR ) DESIGN . . . IN RESPECT OF THE GOODS . THIS PROVISION SHALL ALSO APPLY IN THE CASE OF COPYRIGHT OR ANY OTHER INTELLECTUAL OR INDUSTRIAL PROPERTY RIGHT ' .
4 THE COMMON CUSTOMS TARIFF BY ITS NATURE CONCERNS ONLY THE IMPORTATION OF GOODS , THAT IS , TANGIBLE PROPERTY , AND DOES NOT APPLY TO THE IMPORTATION OF INCORPOREAL PROPERTY SUCH AS PROCESSES , SERVICES OR KNOW-HOW , WHICH ARE , OWING TO THEIR NATURE , ALREADY DIFFICULT FOR THE CUSTOMS MECHANISMS TO COVER . THEREFORE , FOR THE PURPOSE OF THE DETERMINATION OF THE VALUE FOR CUSTOMS PURPOSES , IT IS IN PRINCIPLE NECESSARY TO CONCENTRATE ONLY ON THE INTRINSIC VALUE OF THE ARTICLE AND TO DISREGARD THE VALUE OF PROCESSES , WHICH MAY BE PATENTED , IN WHICH IT MAY BE USED . IF THIS WERE NOT SO THERE WOULD BE A RISK OF EXTENDING THE APPLICATION OF THE COMMON CUSTOMS TARIFF , BY TOO WIDE AN INTERPRETATION OF THE CONCEPTS OF VALUE AND PRICE , TO THE INTRODUCTION INTO THE COMMUNITY OF IDEAS UNDERLYING INVENTIONS AS SUCH , WHICH ARE NOT EMBODIED IN TANGIBLE PROPERTY . SUCH APPLICATION WOULD NECESSARILY BE ARBITRARY BECAUSE IT WOULD NOT BE CAPABLE OF COVERING THE MORE OR LESS UNCERTAIN CONNEXION BETWEEN THE IDEA UNDERLYING THE INVENTION AND THE ARTICLES CONCERNED .
5 BY ONLY MENTIONING PATENTED INVENTIONS IN ACCORDANCE WITH WHICH GOODS ARE MANUFACTURED , ARTICLE 3 SEEMS TO EXCLUDE PATENTED INVENTIONS WHICH RELATE TO THE PROCESS OF USE OF THE ARTICLE . HOWEVER , THIS DISTINCTION LOSES ITS MEANING IN CASES IN WHICH THE MANUFACTURED ARTICLE AND THE PROCESS OF USE THEREOF ARE SO CLOSELY LINKED THAT THE MANUFACTURED ARTICLE AND THE PROCESS OF USE ARE EMBODIED IN ONE AND THE SAME ARTICLE . IN FACT THE RESULT OF AN INTERPRETATION OF ARTICLE 3 IN ACCORDANCE WITH THE OBJECTIVES OF THE BASIC PROVISION LAID DOWN BY ARTICLE 1 OF THE REGULATION IS THAT A PATENTED PROCESS , THE CARRYING OUT OF WHICH CONSTITUTES THE ONLY ECONOMICALLY VIABLE USE OF THE GOODS AND WHICH IS ONLY PUT INTO EFFECT BY THE USE OF THOSE GOODS , IS REGARDED AS EMBODIED IN THE IMPORTED GOODS .
6 IT IS THEREFORE NECESSARY TO REPLY THAT ARTICLE 3 ( 1 ) ( A ) OF REGULATION NO 803/68 OF THE COUNCIL IS TO BE INTERPRETED AS MEANING THAT THE NORMAL PRICE OF GOODS INCLUDES THE VALUE OF A PATENTED PROCESS WHERE THE PROTECTED PROCESS IS INSEPARABLY EMBODIED IN AND CONSTITUTES THE ONLY ECONOMICALLY VIABLE USE OF THE GOODS .