law://eu/cjeu/1981/c-294-81/hd_1_1_4_2@2026-11-14First submission: failure to appreciate the concept “scientific instrument or apparatus”The applicant claims that the Commission, in merely asserting in its decision that it is concerned with computers, has failed to appreciate not only certain distinctive features which render Cyber computers particularly suitable for scientific use but also the flexible nature of the Florence Agreement and the Nairobi Protocol. The abovementioned Guide and the submissions of the Commission itself in Case 72/77 {Universiteitskliniek Utrecht, judgment of 2 February 1978 [1978] ECR 189) show clearly that the Agreement, and thus the Community rules relating to it, must be applied as liberally as possible. This contention is in no way contradicted by the fact that the Guide provides, by way of illustration, a list of scientific instruments which does not include computers, since that “list ... is not intended to be restrictive in any way”. The same applies to the explanatory notes in the working document of the Committee on Duty-Free Arrangements which merely rule out computers from normally being considered as scientific instruments or apparatus.Furthermore, the Commission has failed to take into account the judgment in Case 72/77, Universiteitskliniek Utrecht, mentioned above, in which the Court ruled that the words “scientific instruments or apparatus” within the meaning of Regulation No 1798/75 “refer to an instrument or apparatus possessing objective characteristics which make it particularly suitable for pure scientific research”. That judgment, together with the adoption of the Nairobi Protocol, was directly responsible for the recasting in 1979 of Article 3 of Regulation No 1798/75.The applicant points out with a number of examples that scientists engaged in advance research in nuclear physics and other fields use computers to perform complex mathematical operations or experiments, which may involve millions of steps. The volume and complexity of these operations make the use of a computer indispensable. Some branches of research became feasible only when computers were available. For example, mathematical “models” are used to simulate physical conditions which cannot be created experimentally. The scientist's computer must perform mathematical operations with extreme accuracy in the case of both very large and very small numbers, and the results must be available quickly enough to make the research worthwhile. Scientific research in certain fields is therefore inconceivable without the availability of suitable computers, which are thus to be regarded as instruments used by scientists in their research.Whether a computer is adapted particularly to scientific or to commercial needs is a function of the physical structure or “architecture” of the machine's “hardware”, and not of its “software”. Software “programmes” are the detailed instructions, inserted into the computer by the user, which communicate the specific steps by which the computer will effect the required computation by the user. Although certain software programmes are used by scientists, the insertion of a scientific software programme into a commercial computer cannot modify the physical attributes of the machine.The applicant further contends that there is a small, but distinct and wellrecognized, class of specialized computers designed for the scientific market. The physical features of the Cyber computers which render them particularly suitable for scientific application as opposed to commercial applications are the following:(a) ArchitectureThe central processor performs computational tasks at very high speeds. The central processor has no contact with external equipment. There are no “data channels” linking the central processor other than to the computer memory. The only function of the processor is to process data which are supplied directly from the memory. The Cyber processor is thus not designed to perform the shifting and comparison of data typically required of commercial computers.(b) Orientation to unusually long “words”Information is recorded in any computer in “bits”. Bits are grouped in clusters which constitute the smallest unit of information which the computer is capable of “addressing”.In Cyber computers, the smallest addressable unit of information is a “word” consisting of 60 bits. Words of this length, which are only to be found in scientific computers, are necessary for accurate and rapid recording and handling of the long or complex numbers of values encountered in scientific research. The Cyber computers can handle such numbers or values in a single operation.The basic word which the Cyber computer addresses contains 60 bits. When it operates in so-called “double precision”, 120 bits are available to record a single number or value. Thus, a number consisting of perhaps 200 digits could be recorded. Such a large number would be irrelevant in commercial use. In a commercially-orientated computer, the normal maximum number of bits available to record a single number is 32 or, in double precision, 64. A number requiring more bits cannot be accurately recorded or manipulated in a commercially-orientated computer. The availability in Cyber computers of “floating-point arithmetic”, when coupled with the unusually long word-length of Cyber computers, permits the performance of operations on very large and very small numbers consisting of many digits with many zeroes before or after the decimal point.The applicant stresses that these features are a function of the physical construction of the machine, which cannot be modified, and which are constant regardless of the type of software used.(c) Non-orientation to charactersCommercially-orientated computers usually record and address information in basic units of 8 bits known as “characters” or “bytes”. An 8-bit character can contain a simple number or. a letter or a punctuation mark. Ability to handle such easily recorded short units of information is important for the businessman, and such computers are said to be character-orientated. Cyber computers are orientated to addressing words and cannot, without special modification, address individual characters. This represents a serious hindrance to commercial users. In Cyber computers, characters consist of only 6 bits. Commercial computers with 8-bit characters can therefore handle up to four times as many representations (for example, letters, numbers, punctuation marks, or symbols) as Cyber computers. The commercial user needs a wider range of representations than the scientist.(d) Instruction setAny computer can perform a “set” or range of “instructions” or basic commands, and no other instructions. The instruction set of a Cyber computer is very different from that of commercially-orientated computers. The Cyber computers supplied to the Free Universities of Brussels can perform only 64 “instructions”; a commercial computer's instruction set can have up to 256 instructions. The majority of the available instructions in a Cyber computer deal with operations on values (that is, typical scientific computing steps) rather than the manipulation and comparison of characters within the computer. The converse is true for commercially-orientated computers. Cyber computers are extremely efficient in handling Fortran, the principal scientific programming language which is mainly concerned with mathematical operations, and are broadly incompatible with Cobol, the principal commercial programming language which is mainly concerned with the movement of data in text form. The converse is again true for commercially-orientated computers.(e) SpeedA Cyber computer performs scientific computing operations at very high speed. Its external rhythm or operating cycle is extremely fast; the central processor is insulated from the external equipment; and the instruction set of the computer is limited to the performance of arithmetical and logical operations on numbers or values recorded in very long words, each of which can contain a large or complex value. These features combine to permit rapid and accurate results in extremely complex mathematical operations. According to the applicant, speed is not a matter of mere convenience for the scientist: it can in fact determine whether a given piece of research is undertaken or not.By reason of these characters Cyber computers are eminently suited to the requirements of certain scientific fields where speed and precision are a precondition for the very commencement of research.The Commission concedes that hitherto it has not conferred scientific status on computers unless they are incorporated into equipment classified as a scientific instrument. It considers that it is incorrect to classify computers as instruments, since it is impossible to measure, reveal, transform or process any physical dimension or characteristic with a computer. However, it does not rule out the possibility, which is indicated in the explanatory notes of the Committee on Duty-Free Arrangements, of so classifying computers if there have been additions or substantial modifications which have the effect of rendering them specifically suitable for research or educational purposes. Hitherto this possibility has not been used and the Commission is unable to furnish more precise criteria in this respect.The Commission does not deny the contribution of computers to scientific research or, with regard to the particular characteristics of the Cyber computer, that it is an excellent multipurpose computer capable of carrying out complex calculations and thus well suited to scientific calculations. Nevertheless that computer is also well suited for use in other fields requiring complex, accurate and swift calculation.With regard to the characteristics listed by the applicant the Commission makes the following comments:(a) Word-orientated hardware and precisionAll advanced computers use this method of address, by words rather than characters. This method of address and the precision which it permits are therefore not specific to the Cyber computer, but on the contrary a common characteristic.(b) Floating-point arithmeticAt the present time nearly all computers are capable of floatingpoint arithmetic. This technique is so common that it is even incorporated into certain pocket calculators.(c) Instruction set and programmingAll computers operate as a result of their particular instruction set and programme. In the case of the Cyber computer it is true that it is basically better adapted to carrying out scientific calculations rather than administrative tasks. However the manufacturer has provided that the Cyber computer can be used with different programming languages — including Fortran (formula translation) which is adapted to scientific calculations and Cobol (common business oriented language) which is designed for commercial use. This shows that the Cyber computer, like all computers, is of universal application depending on the programming language used.”Second submission: failure to provide an adequate statement of the reasons on which the decision is basedThe applicant claims that the statement of reasons on which the decision is based does not meet the requirements of the Treaty with regard to the adequacy of the statement of the reasons for decisions. The Commission has merely asserted that the apparatus in question is a computer, adding a stereotyped text which is succinct and identical to a dozen other decisions. The previous decisions led the applicant to believe only that computers as such were not yet acknowledged as having scientific status; this has, however, not discharged the Commission from its duty of informing the applicant by means of the decision, the more so since the applicant maintains that its computers are different from those of the majority of other manufacturers. The Commission could, through its regulation or through the statement of reasons set out in a previous decision, have informed the parties concerned of the reason why it did not consider that computers were eligible for exemption from customs duty, defending its policy in the light of the letter and the spirit of the Agreement and of its Protocol and of Community legislation. In justifying its terse statement of reasons by the fact that the decision is addressed to the Member States which participated in the procedure and which are accordingly acquainted with the policy pursued by it, the Commission disregards the role of the applicant as a a party directly and individually concerned.The Commission concedes that the reasoning is brief but maintains that it is sufficient. The Member States, to which the decision is addressed, participated in the procedure and were fully informed of the reason for the Commission's attitude. With regard to the applicant it is clear from the application itself that the applicant was perfectly aware of the Commission's policy although it does not accept that its computers should be treated as ordinary computers.Third submission: procedural defectThe applicant claims that the procedure prescribed by Regulation No 2784/79 is entirely different from that which applies, for example, in competition matters, inasmuch as it does not allow any exchange of views, provide for the opportunity of being heard on any matters in dispute or even of furnishing additional information before the adoption of the decision.The Commission's reply to this is that all the procedural rules laid down in the regulations were complied with and that the applicant, which submitted an application for duty-free admission, lodged a voluminous file and thus had ample opportunity to make known its point of view.
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