1 BY ORDER OF 20 JULY 1982 , WHICH WAS RECEIVED AT THE COURT ON 20 AUGUST 1982 , THE FINANZGERICHT ( FINANCE COURT ) HAMBURG REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS ON THE INTERPRETATION OF , FIRST , ARTICLES 173 AND 177 OF THE EEC TREATY AND , SECONDLY , REGULATION ( EEC ) NO 1798/75 OF THE COUNCIL OF 10 JULY 1975 ON THE IMPORTATION FREE OF COMMON CUSTOMS TARIFF DUTIES OF EDUCATIONAL , SCIENTIFIC OR CULTURAL MATERIALS ( OFFICIAL JOURNAL 1975 , L 184 , P . 1 ) AND REGULATION ( EEC ) NO 3195/75 OF THE COMMISSION OF 2 DECEMBER 1975 LAYING DOWN PROVISIONS FOR THE IMPLEMENTATION OF REGULATION NO 1798/75 ( OFFICIAL JOURNAL 1975 , L 316 , P . 17 ).
2 THOSE QUESTIONS WERE RAISED IN AN ACTION BROUGHT BY THE UNIVERSITY OF HAMBURG AGAINST THE REFUSAL OF THE GERMAN CUSTOMS AUTHORITIES TO GRANT THE EXEMPTION ON THE OCCASION OF THE IMPORTATION OF AN ELECTRONIC TESTING AND MEASURING INSTRUMENT CALLED A PACKARD 2425 TRI-CARB SPECTROMETER WHICH CAME FROM THE UNITED STATES OF AMERICA AND WHICH THE UNIVERSITY INTENDED TO USE FOR THE ' ' MEASUREMENT OF RADIOACTIVITY IN THE TISSUES AND BODY FLUIDS OF LABORATORY ANIMALS AS PART OF EXPERIMENTAL ANATOMICAL RESEARCH TO LOCALIZE AND QUANTIFY CHEMICAL METABOLIC PROCESSES IN MAMMALS ' ' .
3 ACCORDING TO THE DOCUMENTS BEFORE THE COURT , THE GERMAN AUTHORITIES REFERRED THE UNIVERSITY ' S APPLICATION TO THE COMMISSION IN ACCORDANCE WITH THE PROVISIONS OF THE AFORESAID REGULATIONS . IN ITS DECISION NO 78/851 OF 5 OCTOBER 1978 ( OFFICIAL JOURNAL 1978 , L 293 , P . 30 ) ADDRESSED TO ALL THE MEMBER STATES THE COMMISSION DECLARED THAT THE CONDITIONS FOR ADMISSION FREE OF CUSTOMS DUTY SET OUT IN ARTICLE 3 ( 1 ) ( B ) OF REGULATION NO 1798/75 WERE NOT FULFILLED BECAUSE APPARATUS OF EQUIVALENT SCIENTIFIC VALUE AND CAPABLE OF BEING PUT TO THE SAME PARTICULAR USE WERE MANUFACTURED IN THE COMMUNITY . AS A RESULT OF THAT DECISION ON 7 MAY 1979 THE GERMAN AUTHORITIES FINALLY REJECTED THE UNIVERSITY ' S APPLICATION .
4 IN THE PROCEEDINGS BEFORE THE FINANZGERICHT HAMBURG THE UNIVERSITY CONTENDED THAT , IN VIEW OF THE SPECIFIC NEEDS OF THE RESEARCH DESCRIBED IN ITS APPLICATION , THE INSTRUMENTS MANUFACTURED IN THE COMMUNITY WERE NOT EQUIVALENT TO THE AMERICAN INSTRUMENT . THESE WERE THE CIRCUMSTANCES IN WHICH THE FINANZGERICHT HAMBURG SUBMITTED THE FOLLOWING QUESTIONS TO THE COURT : ' ' 1 . IS A DECISION THAT THE CONDITIONS LAID DOWN BY ARTICLE 3 ( 1 ) ( B ) OF REGULATION ( EEC ) NO 1798/75 OF THE COUNCIL OF 10 JULY 1975 CONCERNING THE DUTY-FREE IMPORTATION OF A SPECIFIC INSTRUMENT OR APPARATUS ARE NOT FULFILLED , WHICH THE COMMISSION ADDRESSES TO THE MEMBER STATES IN ACCORDANCE WITH THE FIRST SENTENCE OF ARTICLE 4 ( 6 ) OF REGULATION ( EEC ) NO 3195/75 OF THE COMMISSION OF 2 DECEMBER 1975 , OF DIRECT AND INDIVIDUAL CONCERN TO THE PERSON WHO IMPORTED THE INSTRUMENT OR APPARATUS WHICH IS THE SUBJECT OF THE DECISION , SO THAT HE MAY BRING AN ACTION AGAINST THE COMMISSION AND , IF SO , FROM WHAT TIME AND WITHIN WHICH PERIOD? 2.MAY A PERSON CONCERNED BY A DECISION ADOPTED BY THE COMMISSION IN ACCORDANCE WITH THE FIRST SENTENCE OF ARTICLE 4 ( 6 ) OF REGULATION ( EEC ) NO 3195/75 CONTEST THE DECISION ' S LEGALITY ONLY BY INSTITUTING PROCEEDINGS AGAINST THE COMMISSION WITHIN THE TWO-MONTH PERIOD LAID DOWN BY THE THIRD PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY OR CAN THE DECISION ' S LEGALITY ALSO BE CONTESTED BEFORE A NATIONAL COURT IN AN APPEAL AGAINST THE ASSESSMENT TO CUSTOMS DUTY , SO THAT THE NATIONAL COURT MAY , IF NECESSARY , SUBMIT THE QUESTION OF THE DECISION ' S VALIDITY TO THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES IN THE FORM OF A REQUEST FOR A PRELIMINARY RULING? 3.IF THE DECISION ' S LEGALITY CAN BE CONTESTED IN PROCEEDINGS BEFORE A NATIONAL COURT , IS COMMISSION DECISION 78/851/EEC OF 5 OCTOBER 1978 ON THE PACKARD 2425 TRI-CARB SPECTROMETER INVALID BECAUSE , EVEN THOUGH SIMILAR TYPES OF APPARATUS , AS THE COMMISSION DESCRIBES IN ITS DECISION , ARE MADE IN THE COMMUNITY , THEY WERE INFERIOR IN PERFORMANCE TO THE IMPORTED INSTRUMENT , ESPECIALLY WHEN THE USER ' S SPECIFICATIONS ARE CONSIDERED? ' ' THE FIRST TWO QUESTIONS
5 BY THESE QUESTIONS THE NATIONAL COURT IN SUBSTANCE SEEKS TO ASCERTAIN WHETHER , BY NOT HAVING BROUGHT PROCEEDINGS UNDER THE SECOND PARAGRAPH OF ARTICLE 173 AGAINST A DECISION OF THE COMMISSION OF THE TYPE IN QUESTION WITHIN THE PERIODS STIPULATED IN THE THIRD PARAGRAPH OF THAT ARTICLE , THE PERSON OR PERSONS CONCERNED BY THAT DECISION ARE , ACCORDING TO COMMUNITY LAW , PRECLUDED FROM RELYING UPON THE INVALIDITY OF THAT DECISION IN PROCEEDINGS BEFORE A NATIONAL COURT . FOR THE PURPOSE OF RESOLVING THAT ISSUE THE PROCEDURE ESTABLISHED BY THE AFORESAID REGULATIONS SHOULD BE CONSIDERED .
6 ARTICLE 3 OF REGULATION NO 3195/75 REQUIRES AN APPLICATION FOR DUTY-FREE ADMISSION TO BE SUBMITTED TO THE COMPETENT AUTHORITY OF THE MEMBER STATE IN WHICH THE SCIENTIFIC ESTABLISHMENT IN QUESTION IS SITUATED . ARTICLE 4 REQUIRES THAT NATIONAL AUTHORITY TO GIVE A DIRECT DECISION ON APPLICATIONS IN ALL CASES WHERE THE INFORMATION AT ITS DISPOSAL ENABLES IT TO DECIDE WHETHER OR NOT THERE EXIST APPARATUS OF EQUIVALENT SCIENTIFIC VALUE WHICH ARE CURRENTLY MANUFACTURED IN THE COMMUNITY . ONLY IF THE NATIONAL AUTHORITY CONSIDERS THAT IT IS UNABLE TO DECIDE THAT QUESTION FOR ITSELF IS IT THEREFORE BOUND TO REFER IT TO THE COMMISSION AND COMMUNITY LAW DOES NOT REQUIRE THE APPLICANT TO BE INFORMED OF THAT REFERENCE .
7 THE DECISION ADOPTED BY THE COMMISSION IS ADDRESSED TO ALL THE MEMBER STATES . BY VIRTUE OF ARTICLE 191 OF THE TREATY IT MUST THEREFORE BE NOTIFIED TO THE MEMBER STATES AND IT TAKES EFFECT UPON SUCH NOTIFICATION . HOWEVER , IT DOES NOT HAVE TO BE NOTIFIED TO THE PERSON APPLYING FOR EXEMPTION FROM CUSTOMS DUTY AND IT IS NOT ONE OF THE MEASURES WHICH THE TREATY REQUIRES TO BE PUBLISHED . EVEN IF IN PRACTICE THE DECISION IS IN FACT PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES , ITS WORDING DOES NOT NECESSARILY ENABLE THE APPLICANT TO ASCERTAIN WHETHER IT WAS ADOPTED IN RELATION TO THE PROCEDURE WHICH HE INITIATED .
8 SINCE THE DECISION IS BINDING ON THE MEMBER STATES , THE NATIONAL AUTHORITY MUST REJECT THE APPLICATION FOR DUTY-FREE ADMISSION IN THE EVENT OF A NEGATIVE DECISION ON THE PART OF THE COMMISSION ; HOWEVER , COMMUNITY LAW DOES NOT REQUIRE IT TO REFER TO THE COMMISSION ' S DECISION IN ITS OWN DECISION REJECTING THE APPLICATION . FURTHERMORE , AS THIS CASE DEMONSTRATES , THE NATIONAL AUTHORITY ' S DECISION MAY BE ADOPTED SOME TIME AFTER THE NOTIFICATION OF THE COMMISSION ' S DECISION .
9 FINALLY , AS THE FINANZGERICHT RIGHTLY POINTS OUT , FOR THE PURPOSE OF BRINGING AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY AGAINST THE COMMISSION ' S DECISION , THE SCIENTIFIC ESTABLISHMENT IN QUESTION MUST DEMONSTRATE THAT THE DECISION IS OF DIRECT AND INDIVIDUAL CONCERN TO IT .
10 IN THOSE CIRCUMSTANCES THE REJECTION BY THE NATIONAL AUTHORITY OF THE SCIENTIFIC ESTABLISHMENT ' S APPLICATION IS THE ONLY MEASURE WHICH IS DIRECTLY ADDRESSED TO IT , OF WHICH IT HAS NECESSARILY BEEN INFORMED IN GOOD TIME AND WHICH THE ESTABLISHMENT MAY CHALLENGE IN THE COURTS WITHOUT ENCOUNTERING ANY DIFFICULTY IN DEMONSTRATING ITS INTEREST IN BRINGING PROCEEDINGS . ACCORDING TO A GENERAL PRINCIPLE OF LAW WHICH FINDS ITS EXPRESSION IN ARTICLE 184 OF THE EEC TREATY , IN PROCEEDINGS BROUGHT UNDER NATIONAL LAW AGAINST THE REJECTION OF HIS APPLICATION THE APPLICANT MUST BE ABLE TO PLEAD THE ILLEGALITY OF THE COMMISSION ' S DECISION ON WHICH THE NATIONAL DECISION ADOPTED IN HIS REGARD IS BASED .
11 THAT STATEMENT IS SUFFICIENT TO PROVIDE AN ANSWER CAPABLE OF DISPELLING THE DOUBTS EXPRESSED BY THE NATIONAL COURT WITHOUT THERE BEING ANY NEED TO CONSIDER THE WIDER ISSUE OF THE GENERAL RELATIONSHIP BETWEEN ARTICLES 173 AND 177 OF THE TREATY OR TO GIVE A SEPARATE ANSWER TO THE FIRST QUESTION .
12 THE ANSWER TO THE FIRST TWO QUESTIONS OF THE FINANZGERICHT SHOULD THEREFORE BE THAT THE PERSON OR PERSONS CONCERNED BY A DECISION ADOPTED BY THE COMMISSION PURSUANT TO ARTICLE 4 OF REGULATION NO 3195/75 MAY PLEAD THE ILLEGALITY OF THE DECISION BEFORE THE NATIONAL COURT IN PROCEEDINGS AGAINST THE FIXING OF CUSTOMS DUTY AND THAT THE QUESTION OF THE VALIDITY OF THE DECISION MAY THEREFORE BE REFERRED TO THE COURT IN PROCEEDINGS FOR A PRELIMINARY RULING . THE THIRD QUESTION
13 IN THIS QUESTION THE FINANZGERICHT ASKS WHETHER DECISION 78/851 IS INVALID ON THE GROUND THAT THE PERFORMANCE OF THE SIMILAR APPARATUS MANUFACTURED IN THE COMMUNITY IS LOWER THAN THAT OF THE IMPORTED APPARATUS , HAVING REGARD IN PARTICULAR TO THE USER ' S SPECIFICATIONS .
14 IN THIS REGARD IT MUST BE STRESSED FIRST OF ALL THAT THE REGULATIONS IN QUESTION ARE MEANT TO ENSURE THAT APPLICATIONS WHICH ARE REFERRED TO THE COMMISSION AND ON WHICH ONE OR MORE MEMBER STATES HAVE GIVEN AN UNFAVOURABLE OPINION RECEIVE A THOROUGH EXAMINATION . ARTICLE 4 OF REGULATION NO 3195/75 REQUIRES THAT EXAMINATION TO BE CARRIED OUT BY EXPERTS FROM ALL THE MEMBER STATES MEETING IN THE COMMITTEE ON DUTY-FREE ARRANGEMENTS ; THEY HAVE AT THEIR DISPOSAL NOT ONLY THE APPLICATION BUT ALSO THE RELEVANT TECHNICAL DOCUMENTS AND THEY COMPARE THE INSTRUMENTS IN QUESTION TAKING INTO ACCOUNT THE PARTICULAR USE TO WHICH THE IMPORTER INTENDS TO PUT THE IMPORTED INSTRUMENT . GIVEN THE TECHNICAL CHARACTER OF THAT EXAMINATION THE COURT CANNOT , SAVE IN THE EVENT OF MANIFEST ERROR OF FACT OR LAW OR MISUSE OF POWER , FIND FAULT WITH THE CONTENTS OF A DECISION WHICH THE COMMISSION HAD ADOPTED IN CONFORMITY WITH THE COMMITTEE ' S OPINION .
15 A FURTHER POINT TO BE MADE IS THAT 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 INSTRUMENT . THE EXPERTS ' REPORTS WHICH THE NATIONAL COURT ORDERED IN THE PRESENT CASE ARE BASED , HOWEVER , ON THE TECHNICAL SPECIFICATIONS STIPULATED BY THE UNIVERSITY AND THEY DO NOT CONSIDER WHETHER THESE ARE JUSTIFIED WITH REFERENCE TO THE INTRINSIC NEEDS OF THE PLANNED RESEARCH ; THEY CONTAIN THE EXPRESS RESERVATION THAT IT IS NOT POSSIBLE TO ARRIVE AT A RELIABLE JUDGMENT OF THE SCIENTIFIC VALUE OF THE INSTRUMENTS IN QUESTION EXCEPT BY USING THEM FOR THE SCIENTIFIC OBJECT IN VIEW AND COMPARING THEIR PERFORMANCE . IT FOLLOWS THAT THOSE EXPERTS ' REPORTS ARE NOT SUFFICIENT TO DEMONSTRATE THE EXISTENCE OF A MANIFEST ERROR WHICH WOULD RENDER THE DECISION IN QUESTION INVALID .
16 SINCE THERE IS NO OTHER EVIDENCE BEFORE THE COURT TO PROVE THE EXISTENCE OF SUCH AN ERROR OR A MISUSE OF POWER , THE ANSWER TO THE THIRD QUESTION MUST BE THAT CONSIDERATION BY THE COURT HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF COMMISSION DECISION 78/851 OF 5 OCTOBER 1978 .