51/84 · GlobalLawDB

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Judgment of the Court (Second Chamber)4 July 1984^noteIn Case 51/84REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht [Finance Court] Baden-Württemberg for a preliminary ruling in the action pending before that court betweenLand Niedersachsen [Land of Lower Saxony] (represented by Georg-August-Universität, Göttingen)andHauptzollamt [Principal Customs Office] FriedrichshafenTHE COURT (Second Chamber),composed of: O. Due, President of Chamber, P. Pescatore and K. Bahlmann, Judges,Advocate General: G. F. ManciniRegistrar: J. A. Pompe, Deputy Registrarafter considering the observations submitted on behalf of:— the Commission of the European Communities by Jörn Sack, a member of its Legal Department,after hearing the Opinion of the Advocate General delivered at the sitting on 7 March 1985,gives the following

Judgment

(The account of the facts and issues which is contained in the complete text of the judgment is not reproduced)

Decision

1By an order of 7 February 1984, which was received at the Court on 27 February 1984, the Finanzgericht Baden-Württemberg referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty four questions on the interpretation of Regulation (EEC) No 1798/75 of the Council of 10 July 1975 on the importation free of Common Customs Tariff duties of educational, scientific and cultural materials, which was adopted in implementation of the Florence Agreement on the Importation of Educational, Scientific and Cultural Materials (United Nations Treaty Series, Vol. 131, 1952, No 1734, pp. 26 et seq.).

2Those questions were raised in proceedings between the Land Niedersachsen, represented by Georg-August-Universität, Göttingen (the plaintiff in the main proceedings, hereinafter referred to as ‘the plaintiff’) against the refusal of the Hauptzollamt Friedrichshafen (the defendant in the main proceedings, hereinafter referred to as ‘the defendant’) to grant duty-free admission on the importation into the Federal Republic of Germany in 1979 of an automatic sampler described as an ‘AS — 50 (Auto Sampler)’ manufactured in the United States of America by the Perkin-Elmer Corporation. That instrument was to be used by the Institut für tropischen und subtropischen Pflanzenbau [Tropical and Subtropical Plant Institute] in measurements carried out with an atom-absorption spectrophotometer described as an ‘AAS M 432’ manufactured in the Federal Republic of Germany by Bodenseewerk Perkin-Elmer & Co. GmbH, Überlingen, a German subsidiary of the American undertaking.

3The defendant gave as the ground for its refusal to grant the imported instrument duty-free admission the fact that the spectrophotometer which was the main apparatus had not been imported and that the Auto Sampler could not be regarded as an independent scientific instrument or apparatus.

4The plaintiff brought an action against that decision before the Finanzgericht Baden-Württemberg, contending that the AS-50 Auto Sampler was an accessory of the AAS M 432 spectrophotometer within the meaning of Article 3 (2) of Regulation No 1798/75.

5The defendant, however, argued that only products specially designed for the main apparatus could be regarded as accessories within the meaning of that provision; as such they could not be regarded as independent scientific instruments within the meaning of Article 3 (1) of the regulation.

6With those arguments before it, the Finanzgericht commissioned an expert opinion from Professor H. Sternbach of the Max-Planck Institute for experimental medicine. He found that the instrument in question was in the mechanical and technical sense an accessory of the spectrophotometer which was recognized as being a scientific instrument. He also stated that a large number of measurements were taken with the spectrophotometer and that the Auto Sampler made it possible for the solutions to be measured to be put in consistently and accurately; that could not be ensured with the necessary reliability if done manually. Thus the spectrophotometer was capable of functioning even without the sampler but the sampler was necessary for it to perform the specific function for which it had been designed by the manufacturer.

7In order to enable it to resolve that dispute, the Finanzgericht, by order of 7 February 1984, has submitted the following questions to the Court:(1) What are “accessories” within the meaning of Article 3 (2) of the regulation?(a) Must products which were imported before 1 January 1980, in order to be accessories within the meaning of Article 3 (2) of the regulation, be specially designed for the main apparatus (see the definition given by Article 12 of Commission Regulation (EEC) No 2784/79 of 12 December 1979 laying down provisions for the implementation of Council Regulation (EEC) No 1798/75, a provision which did not enter into force until 1 January 1980; Official Journal, L 318, of 13 December 1979, p. 32) and, if so, what determines whether an accessory is “specially designed” for the main apparatus — objective and technical criteria, or the function envisaged for the accessory by the manufacturer, or the tasks for which it is actually to be used by the user?(b) Does the concept of accessory in relation to the main apparatus further presuppose its non-autonomous character and, if so, how is that character to be determined — by applying mechanical and technical criteria, or according to the function envisaged for the accessory by the manufacturer, or according to the tasks for which it is actually to be used by the user?(2) What does “required for the operation of” in Article 3 (2) of the regulation mean? Does it imply that, without the accessory, the main apparatus does not “run” in the mechanical and technical sense, or doesnot properly perform the function envisaged by the manufacturer or does not fulfil the tasks for which it is actually to be used by the user?(3) How is the phrase “which qualify for duty-free admission” in Article 3 (2) of the regulation to be understood? Does it imply that a main apparatus may be regarded as qualifying for duty-free admission when it has been manufactured within the customs territory and has therefore not been imported, but would, if imported, have been exempted from customs duty asa scientific apparatus under Article 3 (1) of the regulation, or does the duty-free status of the main apparatus presuppose that it was in fact imported free of duty under Article 3(1)? (4) What are “scientific instruments and apparatus” within the meaning of Article 3 (1) of the regulation? Do those terms require the apparatus to be an autonomous unit, and, if so, how is that characteristic to be determined — by applying mechanical and technical criteria, or according to the function envisaged for the apparatus by the manufacturer, or according to the tasks for which it is actually to be used by the user?’

8In the grounds of its order for reference, the Finanzgericht states that the questions are submitted to a certain extent as a supplement to the order for reference of the Finanzgericht München of 6 October 1983 (Case 236/83 Universität Hamburgy Hauptzollamt München-West; see below), in view of the fact that the questions put by that court were largely concerned with the expression ‘unit of equipment’, which is not at issue in this case.

9The parties to the main proceedings have not submitted any observations to the Court. For its part, the Commission observes first that there is a close link between this case and Case 236/83, judgment in which was delivered on 15 November 1984 ([1984] ECR 3849). It also suggests that Question 3 should be answered in the affirmative, in which case an answer to the Finanzgericht's other questions would be unnecessary to the determination of the dispute.

10The Commission points out that Question 1 (a), namely whether an accessory must be ‘specially designed’ for the main apparatus, refers only to the comparatively specific definition of an accessory which became applicable on 1 January 1980 by virtue of Article 12 of Commission Regulation No 2784/79, which laid down provisions for the implementation of the basic regulation, Regulation No 1798/75 of the Council.However, as of the same date Article 3 of the basic regulation was itself amended by Council Regulation No 1027/79 of 8 May 1979 (Official Journal, L 134, p. 1), and the new versions in the Council and Commission regulations are closely connected. Whereas the original wording of Article 3 (2) of the basic regulation provided that the accessory must be ‘required for the operation’ of the scientific instrument or apparatus, under the new version it is enough for the accessory to be ‘specifically suitable’ for a main apparatus. Article 12 of Regulation No 2784/79 stipulates that the accessory must be ‘specially designed for use with a specific scientific instrument or apparatus for the purpose of improving its performance and scope’.

11The Commission takes the view that the original wording of Article 3 of Regulation No 1798/75 was too restrictive and sees no objection to taking the new version as a basis for the interpretation of the original wording as well although it did not enter into force until 1 January 1980. On that basis an accessory must be specially designed or adapted by the manufacturer for use with a specific instrument or apparatus in order to come within the terms of those provisions which, conversely, do not cover an accessory intended to be used or capable of being used with a large number of instruments. The more or less fortuitous fact that an accessor) may also be used independently or in an application different from that originally envisaged does not prevent those provisions from applying.

12Turning to Question 1 (b), the Commission argues in favour of a functional definition of ‘accessory’, consistent with the logic of its suggested answer to Question 1 (a), and against any differentiationbetween scientific instruments and apparatus, on the one hand, and accessories, on the other, on purely conceptual grounds or on the basis of technical characteristics. Accessories must accordingly be taken to mean materials whose design and method of operation show that they are intended by the manufacturer to improve the performance or the scope of a scientific instrument or apparatus.

13With regard to Question 2 the Commission refers to its suggested answer to Question 1 (a) and states that instead of being given an over-literal interpretation, which would be unsuitable, the original wording of Article 3 (2) of Regulation No 1798/75 should be read in the light of the wording as amended by Regulation No 1027/79.

14The Commission suggests that Question 3 be answered in the affirmative; it refers in this respect to the Court's judgment and its own arguments in Case 236/83. Regulation No 1027/79 clarified the wording of Article 3 (2) of Regulation No 1798/75, which was inconsistent in the various language versions, by specifying that an accessory is eligible for duty-free admission only if the main apparatus is itself imported and if its importation was carried out before or at the same time as that of the accessory. That interpretation is in accordance with the conditions laid down by the Florence Agreement of 1950 and the 1976 Nairobi Protocol to that Agreement, and there is no reason to introduce more favourable treatment for imports into the Community. Having regard to the heavy costs involved in the determination of the scientific character of an instrument or apparatus, it is evident that the Community legislation was not intended to lay down such a complex administrative procedure in order to exempt ordinary accessories from customs duties.

15In answer to Question 4, which relates to the relevant criteria for determining the independent nature of an instrument or apparatus for the purposes of Article 3(1) of Regulation No 1798/75, the Commission suggests that reference be made to the function envisaged for the item by the manufacturer, which may in many cases be inferred from its design and method of operation. It says that all the other possible criteria, whether conceptual or technical, would in practice not be very suitable for the purposes of definition. Accordingly, the Commission suggests that the answer to Question 4 should be that instruments or apparatus within the meaning of Article 3 (1) of Regulation No 1798/75 comprise technical devices which, having regard to their design and method of operation, are intended by the manufacturers to be used for scientific work as independent units.

16During the oral procedure the Commission modified somewhat its position on the answers to be given to Question 1 (b) and Question 4 in order to take account of the judgment of the Court in Case 236/83, cited above, which had been delivered in the meantime. It no longer maintains its original view that an article by its very nature always retains the character of a main instrument or apparatus or an accessory. It now says that an article may be either, depending on each individual case, according to whether it performs an ‘independent scientific function’ or a purely mechanical function which is merely to improve or facilitate the operation or efficiency of the main instrument or apparatus.

17The Commission has departed from its original proposal regarding the answer to Question 4 and now suggests that the answer should be that scientific instruments or apparatus comprise technical devices which satisfy all the requirements of Article 3 (1) and (3) of Regulation No 1798/75 and in particular perform an independent scientific function.

18The Court would observe first that Question 3 must be taken before the others because the answer to it must logically precede the answers to the other questions since, if the second branch of Question 3 is answered in the negative, Questions 1, 2 and 4 will no longer call for a reply.

Question 3

19In order to answer Question 3 it is necessary to recall that in its judgment of 15 November 1984 in Case 236/83, cited above, the Court ruled that the phrase ‘scientific instruments and apparatus which qualify for duty-free admission’ in Article 3 (2) of Regulation No 1798/75 ‘must be interpreted as meaning that components, spare parts and accessories may be imported free of duty provided that they are intended for scientific instruments or apparatus which are, or have been, admitted free of duty’. The Court added that: ‘Duty-free admission may not, however, be granted where the components are intended to be incorporated in a scientific installation constructed in the Community’.

20The Court based that interpretation in the first place on the fact that by virtue of Article 2 of Regulation No 1798/75 duty-free admission may be granted only to educational, scientific and cultural materials intended for certain research or teaching establishments. It took theview that the application of that provision raised difficulties where the imported components were intended not directly for the scientific or educational institution concerned but for the manufacture of scientific equipment which was to be delivered subsequently to the institution concerned.

21The Court stated in the second place that a scientific installation constructed in the Community fell outside the scope of customs law and could not therefore legally be classified as a scientific instrument or apparatus within the meaning of Regulation No 1798/75, particularly since duty-free admission could be granted only if it was established that instruments or apparatus of equivalent value were not being manufactured in the Community. It added that a principal installation constructed in the Community could not be classified as a scientific instrument or apparatus qualifying for duty-free admission exclusively by virtue of its connection with imported components or accessories.

22The Court therefore held that considerations relating to the scope of the scheme of Regulation No 1798/75 precluded the duty-free admission of components intended for incorporation in a scientific installation constructed in the Community.

23For all those reasons, it must be stated in reply to Question 3 submitted by the Finanzgericht Baden-Württemberg that the phrase ‘scientific instruments and apparatus which qualify for duty-free admission’ in Article 3 (2) of Regulation No 1798/75 must be interpreted as meaning that accessories may be imported free of duty provided that they are intended for instruments or apparatus which are, or have been, admitted free of duty. Duty-free admission may not, however, be grantedwhere the accessory in question is intended to be incorporated in an instrument or apparatus constructed in the Community.

Questions 1, 2 and 4

24Having regard to the answer to Question 3, it is unnecessary to rule upon the other questions submitted by the Finanzgericht or to adopt a position on the Commission's arguments in connection with them.

Costs

25The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,THE COURT (Second Chamber),in answer to the questions referred to it by the Finanzgericht Baden-Württemberg by order of 7 February 1984, hereby rules: The phrase ‘scientific instruments and apparatus which qualify for duty-free admission’ in Article 3 (2) of Regulation (EEC) No 1798/75 of the Council of 10 July 1975 must be interpreted as meaning that accessories may be imported free of duty provided that they are intended for instruments or apparatus which are, or have been, admitted free of duty. Duty-free admission may not, however, be granted where the accessory in question is intended to be incorporated in an instrument or apparatus constructed in the Community.

Delivered in open court in Luxembourg on 4 July 1985.