Ludwig-Maximilians-Universität München v Hauptzollamt München-West (45/83)

II —Written observations submitted to the Court

The Commission emphasizes in the first place that in its opinion the German version of Regulation No 1798/75 goes further than the other versions and further than the English and French versions in particular. The latter are of particular importance because Regulation No 1798/75 implements the Florence Agreement of 21 May 1952 in the Community and that agreement is drawn up in English and French. Whilst in all cases the German text refers to “Wissenschaftliche Instrumente, Apparate und Geräte” (scientific instruments, apparatus, and utensils), the other versions mention only “instruments and apparatus” (“instruments et appareils”). The Commission considers that the plaintiff in the main proceedings cannot therefore rely upon a single version of the regulation in question which is less restrictive than the other language versions. And that version is not confirmed either by the Florence Agreement or by the instructions given for the implementation thereof or by practice in the signatory States or by that of the Community itself. It should be added that in the meantime the German version has been brought into line with the other versions by article 140 (1) (d) of Regulation No 918/83 of the Council of 28 March 1983 setting up a Community system of reliefs from customs duty (Official Journal 1983, L 105, p. 1), by removal of the word “Geräte” (utensils) from the original text of the regulation.In the opinion of the Commission there can be no doubt that the glass flasks the subject-matter of these proceedings cannot be regarded as instruments or apparatus. Quite apart from any dictionary definition, it is certain that only articles having a particular form enabling certain operations to be performed or certain effects on other articles to be produced can be classified as such. On the other hand, articles which serve simply for the preservation, storage or even the “cultivation” of a substance are not instruments and still less are they apparatus. The distinction between those terms and the “articles” mentioned in Articles 1 and 2 makes sense only if it is based on the functional meaning of those terms. That meaning cannot be based on the purpose of the goods, since all the goods covered by Regulation No 1798/75 have a common purpose.The Commission maintains that the German word “Geräte” (utensils) is less restrictive than the words “instrument” and “apparatus”. The word “Gerät” could be used to describe any article of a particular form which fulfils a certain function in connection with the performance of an activity and does not necessarily enable an activity to be performed or another article to be acted upon, as is the case with instruments and apparatus. Thus, articles used for the preservation and storage of a substance may be termed “Geräte” in German because they fulfil certain functions but do not enable an operation to be carried out or an effect to be produced.Moreover, as regards the definition of “instruments and apparatus”, the Commission refers to the examples given in the Unesco official guide for the operation of the Florence Agreement and its Protocol, the common feature of which is that the articles described are used for specific tasks, specific research or the production of specific effects, and are not therefore merely useful accessories for the performance of such activities.Furthermore, the Commission refers to the observations submitted by it in Cases 294/81 (judgment of 17 March 1983, Control Data Belgium [1983] ECR 911) and 300/82 (judgment of 9 November 1983, Gesamthochschule Essen [1983] ECR 3655). The essential feature to be noted in those cases is that the scientific use for which an article is intended is not sufficient, either in general or in specific cases, to provide a basis for the application of Article 3 of Regulation No 1798/75.Consequently, the only support for the view put forward by the plaintiff in the main proceedings is the assertion that it is in harmony with the spirit of that regulation for it to be interpreted as broadly as possible. However, the Commission objects to that argument in so far as the intention of the legislature to impose certain restrictions is not in doubt, since those restrictions are clearly expressed in the text of the regulation. Nor are they vitiated by arbitrariness, in so far as they are in conformity with international practice in this field. Moreover, account must be taken of the fact that even if a liberal interpretation were in the interest of scientific research, the concern to protect manufacturers established in the Community would require the avoidance of any excessive extension of customs exemptions. The legislature certainly intended to confine itself to the importation of articles of particular importance, a characteristic which instruments and apparatus display in general. The word “Geräte” could perfectly well embrace ordinary articles of very simple design. That view is moreover confirmed by Article 3 (4) of Regulation No 1798/75 which in any event excludes the application of paragraph (1) to “normal equipment”, even where such equipment comprises instruments or apparatus.For the above reasons, the Commission proposes that the question submitted for a preliminary ruling should be answered as follows:“The words ‘instruments and apparatus’ (in German: ‘Instrumente, Apparate und Geräte’) used in Regulation (EEC) No 1798/75 of the Council must be interpreted as meaning that only articles of a particular form enabling certain operations to be carried out or certain effects to be produced on other articles, and not those serving only for the preservation or cultivation of an inert or living material, may be regarded as such”.