C-72/77

JUDGMENT OF THE COURT (FIRST CHAMBER) 2 FEBRUARY 1978 <apnote>1</apnote>

Universiteitskliniek, Utrecht v Inspecteur der Invoerrechten en Accijnzen, Utrecht (preliminary ruling requested by the Tariefcommissie, Amsterdam)

'Scientific apparatus'

Сме 72/77

Common Customs Tariff — Importation free of customs duties — Scientific instrument or apparatus — Definition — Criteria (Regulation No 1798/75 of the Council, Article 3)

The words 'sciendfic instrument or instrument or apparatus is used, in apparatus' appearing in Article 3 (1) of industry or elsewhere, for commercial Regulation No 1798/75 refer to an purposes does not of itself necessarily instrument or apparatus possessing exclude its being of a scientific nature objective characteristics which make it within the meaning of Regulation No particularly suitable for pure scientific 1798/75, and hence its right to research. exemption from customs dudes under Since such a purpose must be assessed that regulation, provided that the other objectively, on the basis only of those requirements laid down for those characteristics, the fact that the purposes are also satisfied.

JUDGMENT OF 2. 2. 1978 - CASE 72/77

on the interpretation of Regulation 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 (OJ 1975, L 184) and of implementing Regulation No 3195/75 of the Commission of 2 December 1975 (OJ 1975, L 316),

THE COURT (First Chamber)

composed of: G. Bosco, President of Chamber, A. M. Donner and A. O'Keeffe, Judges,

Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

UNIVERSITEITSKLINIEK v INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN

That court held that the — that, as the Tariefcommissie understands from expert evidence, issue was to be decided according to the provisions not of the Tariefbesluit 1960 no apparatus of equivalent scientific value is being manufactured in the but of Regulation No 1798/75 of the Community, which fact has not been Council of 10 July 1975 ‘on the impor tation free of Common Customs Tariff contested by the Inspector; duties of educational, scientific and — that therefore it remains to be cultural materials' (OJ 1976, L 184, p. decided whether the apparatus at 1), in particular Article 3 thereof, and of issue is a purely scientific apparatus implementing Regulation No 3195/75 or is open to more general use ; of the Commission of 2 December 1975

3. Article 3 (1) and (4), the second lation No 1798/75 of the Council of paragraph of Article 4 and Article 5 of the European Communities of 10 Regulation No 1798/75 of the Council July 1975 solely based on a provide as follows: subjective criterion in respect of the scientific use of scientific apparatus 'Article 3 if the question is raised of whether 1. Scientific instruments and apparatus there exists a right to exemption not included in Article 2 imported from Common Customs Tariff exclusively for educational purposes duties under that regulation? or for pure scientific research may be If that question is answered in the admitted free of Common Customs

JUDGMENT OF 2. 2. 1978 — CASE 72/77

(a) they are intended for: Article 3 (1) (b) and in the second — either public establishments subparagraph of Article 4. principally engaged in edu­ However, it must be established under cation or scientific research, the conditions laid down by including those departments implementing provisions adopted in of public establishments which accordance with the procedure referred are principally engaged in to in Article 9, that the gift of scientific education or scientific instruments or apparatus under research; consideration has not been prompted by — or private scientific or any commercial considerations on the educational establishments part of the donor’. authorized by the competent authorities of the Member 4. A copy of the order making the reference was received at the Court States to receive such articles duty-free Registry on 13 June 1977.

and provided: The Commission of the European Communities, represented by its Legal (b) instruments or apparatus of Adviser, Trevor Townsend, submitted equivalent scientific value are written observations in accordance with not being manufactured in the Article 20 of the Protocol on the Statute Community. of the Court of Justice of the EEC. Upon hearing the report of the Judge- Rapporteur and the views of the Advocate General, the Court decided to 4. Normal equipment shall in all cases open the oral procedure without any be excluded from duty-free ad­ mission unless it has certain char­ preparatory inquiry. acteristics not found in equipment By an order of 6 October 1977, the manufactured in the Community. Court decided to assign the case to the First Chamber in accordance with Article 4 Article 95 of the Rules of Procedure.

Thus under Article I of the Agreement, The Commission then goes on to the materials listed in Annexes A to £ examine the Community rules which are products of the contracting applicable in the present case. In this States are not subject to customs duties connexion, it points out that according and other charges on importation into a to the Common Customs Tariff certain contracting Sute. Annex D refers products falling within the ambit of the precisely to 'scientific instruments or Florence Agreement are exempt from apparatus'. payment of customs duties. For the rest, each Member Sute which is party to Since the time when the Agreement was concluded, there has been considerable the Agreement has applied the Agreement more or less at its discretion. technical progress in virtually all the Owing to the flexibility of the sectors covered by the Agreement. Agreement and in view of the fact that Although that development has not yet it contains no precise definition given rise to any problem, owing to the Agreement's flexibility, it was none the regarding several important sub­ divisions, in particular the concept of less specified that it was important that 'scientific apparatus', it appeared the Agreement should be applied as necessary to co-ordinate matters at liberally as possible. That recom­ Community level. mendation applies in particular to the scientific instruments and apparatus Thus on 10 July 1975 the Council referred to in Annex D. It was also adopted Regulation No 1798/75 ‘on the recommended that the concept of 'pure importation free of Common Customs scientific research' should be so Tariff duties of educational, scientific and cultural materials'. The Commission interpreted that only instruments or apparatus imported for commercial adopted provisions for the purposes should be unentitled to the implementation of that regulation in exemption. Moreover, it has become Regulation No 3195/75 of 2 December 1975. clear that many countries regard the provisions of the Agreement as The Commission analyses the various 'minimum' provisions and that articles contained in those regulations, consequently they frequently adopt a pointing out in particular that, while the more liberal attitude. Several countries Florence Agreement contains no do not stipulate any condition regarding definition of 'scientific instrument or the purpose for which scientific in­ apparatus', it also appeared impossible struments and apparatus are intended, to incorporate such a definition into the whereas other countries do not lay it Community regulations. It proved down as a condition that no equivalent unfeasible even to draw up a list of instrument is being manufactured in instruments and apparatus which could their territory. be imported free of duty, owing to the A Protocol on the Agreement was continual development in scientific techniques. drawn up and approved by the General Assembly of UNESCO at Nairobi in Under those circumstances, in Regu­ the autumn of 1976 precisely for the lation No 1798/75 the Council opted purpose of extending the ambit of the for a procedure for consultation within Agreement, taking account of the the framework of a special committee technical progress achieved since its (the Committee on Duty Free Ar-

is being manufactured in the territory applied for exemption is proposing to covered by the exemption, the same use it. The adoption of a different decisions show that such assessment is criterion of interpretation would lead to not carried out in the abstract but takes unacceptable results, even on the into account the actual use for which practical level: in particular it would the articles in respect of which threaten the uniform application of the exemption is applied for are intended. duty-free admission system provided for by Community law. In the light of these points, the None the less, the assessment of Commission endeavours to answer the objective characteristics must take into questions raised, which in its opinion account the purpose for which the are best dealt with together. instrument or apparatus in question is The Commission recalls that the suited by virtue of its objective charac­ arrangements introduced by Regulation teristics. However, that purpose must No 1798/75 ensure the implementation also be assessed on the basis of objective criteria. at Community level of certain provisions of the Florence Agreement Under those circumstances, it is on the duty-free importation of certain impossible for the classification of an educational, scientific and cultural instrument or apparatus to be materials. The objectives pursued by influenced by the 'mere' fact that similar that Agreement are reiterated in the first or identical instruments or apparatus are recital in the preamble to the said regu­ used in fields other than that of science. lation, and the second recital states that Thus the following should be regarded customs duty-free admission of the as scientific instruments or apparatus aforementioned materials must be within the meaning of Regulations Nos 'uniform throughout the Community'. 1798/75 and 3195/75:

Only 'scientific' instruments or ap­ paratus as defined above, as well as III — Oral procedure normal equipment possessing certain characteristics not found in equipment The Commission of the European manufactured in the Community, can Communities presented oral argument benefit from the duty-free admission at the hearing on 16 November 1977. arrangements introduced by Regulation No 1798/75. The composition of the Chamber was modified, and it was decided, after On the basis of these observations, the hearing the views of the parties to the Commission proposes that the questions main action, to re-open the oral referred should be answered as follows: procedure at the hearing on 25 January '1. Whether or not an instrument or 1978. apparatus is scientific within the meaning of Article 3 of Regulation The parties to the main action having (EEC) No 1798/75 of the Council stated that they adhered to their must be assessed on the basis of the submissions before the national court, objective characteristics of the said the Advocate General delivered his instrument or apparatus. opinion at that hearing.

Decision

1 By an order of 2 May 1977, which was received at the Court on 13 June 1977, the Tariefcommissie referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty questions on the interpretation of certain provisions of Regulation 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 (OJ 1975, L 184, p. 1) and of implementing Regulation No 3195/75 of the Commission of 2 December 1975 (OJ 1975, L 316, p. 17).

7 These questions should be examined together.

8 As stated in the first recital in the preamble to Regulation No 1798/75, that regulation is intended to 'facilitate the free exchange of ideas as well as the exercise of cultural activities and scientific research within the Community'.

9 In pursuit of such objective, that regulation ensures the implementation at Community level of the Florence Agreement, mentioned in the aforesaid recital, which was drawn up under the auspices of the United Nations Educational, Scientific and Cultural Organization (UNESCO) and entered into force on 21 May 1952.

UNIVERSITEITSKLINIEK v INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN

10 For those purposes, Article 3 (1) of the regulation provides that scientific instruments and apparatus not included in Article 2 and not listed in Annex II, 'imported exclusively for educational purposes or for pure scientific research may be admitted free of Common Customs Tariff duties', provided that they also fulfil the conditions laid down in subparagraphs (a) and (b) of Article 3 (1).

11 The first recital in the preamble to the regulation provides that the impor­ tation into a Member State free of Common Customs Tariff duties of educational, scientific and cultural materials is to be allowed 'by all possible means'.

JUDGMENT OF 2. 2. 1978 — CASE 72/77

Article 3 (1) of Regulation No 1798/75 refer to an instrument or apparatus possessing objective characteristics which make it particularly suitable for pure scientific research.

18 Since such а purpose must be assessed objectively, on the basis only of those characteristics, the fact that the instrument or apparatus is used, in industry or elsewhere, for commercial purposes does not of itself necessarily exclude its being of a scientific nature within the meaning of Regulation No 1798/75, and hence its right to exemption from customs duties under that regulation, provided that the other requirements laid down for those purposes are also satisfied.

Costs

19 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

го Since these proceedings are, in so far as the parties to the main action 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.

meaning of Regulation No 1798/75, and hence its right to exemption from customs duties under that regulation, provided that the other requirements laid down for those purposes are also satisfied.

Bosco Donner O'Keeffe

Delivered in open court in Luxembourg on 2 February 1978.

A. Van Houtte G. Bosco

Registrar President of the First Chamber

OPINION OF MR ADVOCATE GENERAL WARNER DELIVERED ON 25 JANUARY 1978