Universität Hamburg v Hauptzollamt Hamburg-Kehrwieder (216/82)

II —Facts and procedure under national law

In August 1976 the plaintiff in the main action, the University of Hamburg (hereinafter referred to as “the plaintiff”), imported into the Federal Republic of Germany an electronic testing and measuring instrument originating in the USA called a Packard 2425 Tri-Carb Spectrometer.In the customs declaration dated 15 August 1976 the plaintiff described the research project as follows: “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”.For the instrument's scientific, educational or training value the plaintiff gave the following description: “Detection to an accuracy of picomols of metabolic substances in the organism following the administration of radio-actively-labelled elements by determining and measuring the radioactive decay of the radioactive traces, photoelectric impulse multiplication of the radioactive decay phenomena.”The goods were initially cleared through customs and put into circulation free of customs duty but by a notice of corrected assessment of 16 August 1977 the competent customs office levied customs duty of DM5698.38 on the ground that apparatus of equivalent scientific value were manufactured in the Community.The plaintiff lodged an objection against that assessment founded on the expert evidence of Professor Garweg of the University of Hamburg. In his report dated 13 October 1977 Professor Garweg examined, in nine respects, the capabilities required of the apparatus in question.The customs authorities referred the question of exemption to the Commission which in its turn submitted it to the Member States. France and the Netherlands replied unfavourably and attached to their opinions literature on Community-made apparatus which they considered to be of equivalent scientific value as well as observations and comparisons between such apparatus and the instrument which the plaintiff had imported.The summary of the minutes of the meeting of the Committee on Duty-Free Arrangements, to which the Commission referred the matter, contains the following information:5. Case 015/78: Tri-Carb Liquid Scintillation Spectrometer, Model 2425.5.1. For the instrument in question in Case 015/78 Germany refused to grant exemption ... but the user appealed against that decision.5.2. The French delegation reports that the company Intertechnique ... makes equivalent apparatus. That delegation points out that Intertechnique has put forward unassailable arguments as to the equivalent value of its instruments.5.3. The Netherlands delegation reports that the following instruments of equivalent value exist: The Isocap 300 made by Searle and thePW 4540 made by Philips...5.4. The German delegation reports that the users contest the equivalent value of the Netherlands apparatus.5.5. Conclusion:Type of decision to be taken :— Recognition of scientific character;— Decision ... (no exemption from duty because of products made in the Community, especially the apparatus of Intertechnique).”Consequently, in its Decision 78/851 of 5 October 1978 (Official Journal 1978, L 293, p. 30) addressed to the Member States, the Commission declared that the conditions for admission free of customs duty of the imported goods were not fulfilled. The crucial recitals in the preamble to that decision state:“...by the Decision of 23 May 1977 the Commission excluded from the benefit of admission free of the Common Customs Tariff duties of the scientific apparatus described as ‘Packard 2425 Tri-Carb Spectrometer’ with teletype, because apparatus of equivalent scientific value and capable of being put to the same use was manufactured in the Community;...... the Government of the Federal Republic of Germany asked the Commission to invoke the procedure laid down in Article 4(3) to (7) of Regulation (EEC) No 3195/75 in order to determine whether apparatus of a scientific value equivalent to the apparatus described as ‘Packard 2425 Tri-Carb Spectrometer’ was currently and in accordance with the Decision of 23 May 1977 being manufactured in the Community, having regard to its particular uses based on the measuring of radioactivity in the tissues and liquids of the bodies of laboratory animals in the framework of experimental anatomical research;...on the basis of information received from Member States, apparatus of scientific value equivalent to the said apparatus capable of use for the same particular purpose is currently manufactured in the Community.”In the end the plaintiff's objection was dismissed as unfounded by a decision of 7 May 1979 of the Hauptzollamt Hamburg-Kehrwieder.The plaintiff then appealed from that decision to the Finanzgericht [Finance Court] Hamburg, contending that the Netherlands and French apparatus referred to in the verification procedure for the purposes of exemption, namely the Isocap 300 made by G. D. Searle Nederland, the PW 4540 made by Philips of Eindhoven and the SL 4000 made by Intertechnique of Plaisir (France), are not equivalent. The research programme could not be carried out with such instruments. The plaintiff doubted whether the Commission had taken sufficient account in its decision of all the research in progress. It pointed out that the decision contained only a general description of applications of the instrument and that the Commission had not given more detailed reasons.With reference to the Commission's decision the Hauptzollamt observed that, as the decision was addressed to all the Member States, it was also binding on the Administration, hence the Hauptzollamt had no power to verify whether it was well founded.The Finanzgericht requested opinions from two experts in order to compare the imported apparatus with the products made in the Community.In the first expert's report of 23 April 1980 Professor H. C. Heinrich of the University of Hamburg said :“In the expert's report which I am asked to give ‘on the question whether liquid scintillation spectrometers of similar quality, in particular in terms of efficiency, manner of operation and applications, to the Packard 2425 Tri-Carb Spectrometer imported from the USA are manufactured in the European Community’, that question cannot be answered by a simple ‘yes’ or ‘no’.The scientific value of a particular radiation-measuring instrument (in this case the liquid scintillation spectrometer) depends on the performance data (specifications) of each type of instrument and the particular application to which the instrument is put by the scientist using it.... Since 1954 the instruments made by Packard have set the standard for the performance attainable in the given state of technology and thus for the scientific value of this measuring principle.The many imitators making liquid scintillation spectrometers have not in general attained a comparable scientific value for their instruments since about 1960. That is why nearly all the scientists at Eppendorff University Hospital for example have opted independently of one another for the Packard Tri-CarbOne essential reason why the Isocap 300 and PW 4540 instruments were not bought or used was their lower scientific value and the bad reputation of the few instruments of these two types which were installed as regards attainable specifications and the absence of an efficient local service organization.Our institute was able to convince itself in concrete terms of the low scientific value of Searle's SS-Isocap 300 when a test run was carried out at the beginning of 1975. The measuring tests conducted by Dr Eckstein produced an unacceptable number of unusable results and non-reproducible count statistics ...A sure and definitive assessment of the scientific value of the instruments in question, the Packard 2425 Tri-Carb, the Searle Isocap 300 and the Philips PW 4540, is possible only if the user measures the typical samples, labelled ³H and ¹⁴C, arising in the given scientific application he is pursuing, using optimal energy channel settings on all instruments, and if he calculates the normal performance figures. This direct comparison will then reliably show whether the abovementioned instruments have the same scientific value and can be used for the same purpose or not....”In the second expert's report of 1 February 1982 (corrected on 4 February 1982) Mr Dau, of the Institut für Reine und Angewandte Kernphysik [Institute of Pure and Applied Nuclear Physics] made, amongst others, the following observations:“Comparability... A comparison of the scientific value of instruments can be made only in the light of the user's specifications. As a rule a sure assessment can be obtained only by using the instruments which are to be compared to carry out the same specific measurements and comparing their performance. However, this kind of experimental comparison does not take into account:(a) how an instrument is imported on the market;(b) the quality of maintenance and repair service; and(c) whether or not a number of instruments of the same type are already installed.Those aspects are often decisive in the purchase of apparatus....Assessment, scientific valueThe comparison covered the Packard 2425, the Philips PW 4540, the Berthold BF 5000, the Intertechnique SL 4000 and the Searle Isocap 300 instruments.I believe that the Isocap 300 is an instrument which was made in America and not in the Member States of the Community.The SL 4000 was on the market from 1977 but I cannot say whether it was already being marketed in 1975 or 1976 (when the decision to purchase an instrument had to be taken). Investigations have so far not indicated that this instrument was already on the market....In a comparison of the instruments, taking into account user specifications, the Packard 2425 was, in 1976, superior to the others and therefore had greater scientific value....”In a report dated 7 June 1982 Mr Dau stated inter alia:“AssessmentTaking into account user specifications the Packard 2425 was, in 1976, superior to the Isocap 300 and therefore had greater scientific value.”The Finanzgericht stayed the proceedings and submitted the following questions to the Court for a preliminary ruling: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 bacause, 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?”In its order for reference the Finanzgericht observes that Commission Decision 78/851/EEC is addressed to the Member States. It adds, however, that it also directly concerns the person who imported the goods in question. Consequently the Finanzgericht is inclined to think that such a person must be entitled to institute proceedings under Article 173. On the question of the period for instituting proceedings, it adds that Article 81 (1) of the Rules of Procedure of the Court provides that the period is to run from the 15th day after the publication of the measure in the Official Journal of the European Communities but it thinks it doubtful whether the period for instituting proceedings also applies to persons not expressly stated to be addressees of the Commission's decision.The Finanzgericht considers that decisions of the Commission may not be challenged once the period for instituting proceedings has expired. It would be different in the event of nullity, of which there is no evidence in this case. However, the fact that the Commission's decision was not expressly addressed to the plaintiff, which could not therefore obtain knowledge of it, tells against the view that the plaintiff must challenge that decision. The relationship between the procedure for instituting proceedings under Article 173 of the Treaty and the procedure for obtaining a preliminary ruling under Article 177 must be defined so as to preclude proceedings for a preliminary ruling if the relevant question could have been decided in proceedings under Article 173.The Finanzgericht takes the view that, if the decision's validity may not be contested before the national court, that court must dismiss the action for the annulment of an assessment to customs duty provided that there is no evidence to suggest that the Commission's decision was unlawfully adopted. If there is evidence of illegality, however, the national court may or, depending on the case, must request a preliminary ruling from the Court under Article 177 of the EEC Treaty. The Finanzgericht considers that it is itself prevented from declaring the Commission's decision to be unlawful or invalid. That decision is one for the Court, irrespective of the procedure followed.On the question of equivalent scientific value the Finanzgericht observes that the two experts, namely Mr Heinrich and Mr Dau, arrived at the conclusion, which differed from the Commission's, namely that considering user specifications no instrument made in the Community is equivalent in value to the Packard Model 2425. According to the Court's judgment of 2 February 1978 in Case 72/77 Universiteitskliniek Utrecht v Inspecteur de Invoerrechten en Accijnzen [1978] ECR 189, the scientific value of goods depends exclusively on their objective characteristics. There can be no doubt that scientific value has nothing to do with differences in price or mere convenience of design or ease of operation. But it appears doubtful whether the Community-made product is of equivalent value if it does not provide measurements as accurate as those furnished by the imported apparatus. It must be remembered that the instruments in question are acquired for carrying out highly specialized research projects. In the view of the Finanzgericht the rule laid down in Regulation No 1798/75 that scientific equipment is in principle to be exempted from customs duty would be reduced to a nullity if, in view of the Community's generally high technical standards, the clause protecting Community interests were to be construed too liberally in favour of Community products of inferior performance.In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by the Danish Government, represented by L. Mikaelsen, Legal Adviser at the Ministry of Foreign Affairs and by the Commission, represented by its Legal Adviser, A. Prozzillo, assisted by J. Grunwald, a member of its Legal Department.Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure after asking the Commission certain questions.