C-122/80

1. HAUPTZOLLAMT MÜNCHEN-MITTE [Principal Customs Office, Munich Central]

2. HAUPTZOLLAMT MÜNCHEN-WEST [Principal Customs Office, Munich West],

on the interpretation of Note 5 (B) to Chapter 85 of the Common Customs Tariff (Regulation (EEC) No 1/72 of the Council of 20 December 1971, on the Common Customs Tariff, Journal Officiel of 1 January 1972, L 1, p. 1),

T H E COURT (Third Chamber)

composed of: A. Touffait, President of Chamber, Lord Mackenzie Stuart and U. Everling, Judges,

Advocate General: F. Capotorti Registrar: J. A. Pompe, Deputy Registrar

The facts of the case, the procedure and completely coated with copper. Then the observations submitted under Article those areas which are not intended to 20 of the Protocol on the Statute of the operate as conductors are etched away Court of Justice of the EEC may be from the copper coating by photo- summarized as follows: chemical means so that the pattern of the conductor elements remains. Then the conductor elements are plated with tin. The individual components are soldered I — Facts and written procedure with their connecting wires into small holes provided for that purpose in the conductor elements. 1. The plaintiff in the main action, Analog Devices GmbH, regularly imports from non-member countries into In the case of one kind of module (the the Federal Republic of Germany DAC-10H type) plate is made of ceramic electronic circuits (modules) which are instead of plastic. Conductor elements intended to be incorporated in automatic and resistances are printed on this data-processing machines and other by thick-film technology. The plate electronic equipment. moreover is also fitted with individually- mounted active and passive elements which are soldered on to the conductor The particulars provided by the national elements. Modules of this type do not court indicate that these modules are contain any non-integrated semi- manufactured as follows: conductor elements or monolithic integrated circuits. Most of the modules consist of a plastic plate on one side of which are fitted individually-mounted diodes, transistors, All the modules are protected by a plastic resistors, capacitors and other active and housing from which only the terminal passive components, some of them being pins protrude. In the case of most of the monolithic integrated switching networks modules the inside of the housing is and/or a ceramic plate with a resistance filled up either with synthetic resin or network as well. The latter is printed with polyurethane foam through a hole on the ceramic plate by the so-called made in the lid. thick-film technology. The monolithic integrated circuits are inserted in plastic The insertion into the housing in those housings in the form of a parallelepiped. cases is effected by first pouring in some casting resin or polyurethane foam, then In order to connect the individual the printed circuit board is inserted with components with each other and with the connecting pins upwards and then the terminal pins of the module the the lid is put on and the empty space plastic plate is provided on one or both completely filled up through an opening sides with conductor elements. In order in the lid. The housing of some modules to produce the conductor pattern the belonging to a particular type (the ADC relevant surfaces of the plates are first 1109 type) are not however filled up.

According to the particulars furnished by "Diodes, transistors and similar semi- the plaintiff those modules where the conductor devices; electronic micro- housing is either not filled up or is filled circuits". up with polyurethane foam may in case of need be repaired by replacing the Regulation No 1/72 also amplified the damaged individual components. In notes at the beginning of Chapter 85 of general that, it is stated, then causes the the tariff. The new Note 5 reads as lid, and usually also the housing, to follows: break. The damaged component is then unsoldered and replaced by a new component. Finally the plate is put into a "For the purposes of heading No 85.21 new housing and if necessary recast with polyurethane foam in the requisite (A) . . . quantity. (B) 'Electronic micro-circuits' are to be taken to be: 2. The plaintiff in the main action imported modules of this type on several occasions during the years 1971 to 1973 (a) Micro-assemblies of the "fagot" and also imported on 2 August 1977 type module, moulded module, ADC 1109 modules the housing of micro-module and similar types, which was not filled up. When they were consisting of discrete, active or cleared for customs purposes the customs both active and passive minia- authorities classified them under various turized components which are tariff headings. A subsequent re-exam- combined and interconnected; ination led the customs authorities to classify the imports effected in 1971 (b) Monolithic integrated circuits in under tariff subheading 85.21 C of the which the circuit elements Common Customs Tariff in the version (diodes, transistors, resistors, ca- in force at the time and the imports pacitors, inter-connections, etc.) effected on and after 1 January 1972 "as are created in the mass (essen- electronic micro-circuits" under tariff tially) and on the surface of a subheading 85.21 D of the tariff in the semi-conductor material (doped version applicable as from that date. silicon, for example) and are inseparably associated; Tariff heading 85.21 C in the version of Regulation (EEC) No 1/71 of the (c) Hybrid integrated circuits in Council of 17 December 1970, (Journal which passive and active Officiel of 1 January 1971, 1/71, p. 1) in elements, some obtained by thin- force in 1971 referred to or thick-film technology (re- sistors, capacitors, inter-connec- "Transistors and similar mounted semi- tions, etc.), others by semi- conductor devices". conductor technology (diodes, transistors, monolithic integrated Regulation (EEC) No 1/72 of the circuits, etc.), are combined, to Council of 20 December 1971 (Journal all intents and purposes Officiel of 1 January 1972, L 1, p. 1), indivisibly, on a single insulating which entered into force on 1 January substrate (glass, ceramic, etc.).

Its main submission is that the goods in Unlike the customs authorities the question were clearly neither integrated plaintiff in the main action considers that circuits nor micro-assemblies since they the goods in question should have been do not consist of discrete miniaturized classified, according to their intended components ("Einzelbauelemente") nor use, under headings: were they manufactured by the micro- module technology or the moulded module or "fagot" technology. Most of "85.14 Microphones and stands the modules in question involve in therefor; loud-speakers; audio- addition to other components monolithic integrated circuits, which, according to frequency electric amplifiers", the terminology of the Common Customs Tariff, are not part of discrete components. The various components "85.22 Electrical appliances and appar- used in the modules are not miniaturized atus, having individual functions, components either, because their degree not falling within any other of miniaturization is not such as was heading of this chapter: normal at that time with electrical A. . . . equipment requiring the maximum possible economy of space. The other B. . . . special feature that the circuits should be C. Other", inseparably associated is likewise not present in the case of those modules whose housing is not filled or only or filled with polyurethane foam. The components are inseparably associated only if the flow of electricity may be interrupted or a discrete component may "84.53 Automatic data-processing ma- be extracted from the system only at the chines and units thereof; cost of destroying the equipment or unit. magnetic or optical readers, That is not the case with the modules in machines for transcribing data on question since they may be split up. the data-media in coded form Furthermore the modules are not manu- and machines for processing such factured according to the so-called data, not elsewhere specified or moulded module technique — the only included", or, before 1 January one to be taken into consideration in this 1972, "Punched card ... case having regard to Note 5 (B) (a) to machines (perforators, verifiers, Chapter 85 of the Common Customs sorters, tabulators, multipliers Tariff. etc.)"

According to the customs authorities the April 1980 lodged at the Court Registry modules, the components of which are on 14 May 1980 referred the following fitted to a ceramic plate (DAC-1 OH question to the Court for a preliminary module), must be regarded from the ruling : standpoint of the customs tariff as hybrid integrated circuits within the meaning of "How are the expressions: Note 5 (B) (c) to Chapter 85 of the Common Customs Tariff. The other 1. 'Discrete miniaturized components' modules are micro-assemblies. A discrete (subparagraph (a) and (c)); component is every part which is individually tangible and constitutes an 2. 'Moulded module type', 'similar types' entity with connections which is to be and 'which are combined' (sub- regarded as indivisible both in describing paragraph (a)); and it and in marketing it. It may consist of one or more circuit elements, so that 3. 'In which . . . elements, some obtained monolithic integrated circuits also fall by . . . semi-conductor technology . . . within that category. Miniaturization are combined, to all intents and within the meaning of Note 5 (B) (a) to purposes indivisibly' (subparagraph Chapter 85 of the Common Customs (c)), Tariff pre-supposes a reduction in size of in Note 5 (B) to Chapter 5 of the the normal components up to the limit Common Customs Tariff to be prescribed by the output standards, the interpreted?" technological situation in or about 1970 being in this respect determinative. The moulded module technique is every 5. Pursuant to Article 20 of the processs which applies the moulding of Protocol on the Statute of the Court of discrete components into a block which Justice of the EEC, written observations is usually of synthetic resin, protecting were submitted by the Commission of the said components against the the European Communities, represented influence of the environment. The so- for that purpose by Manfred Beschel, called "simi-block" technique is only a acting as Agent, a member of the particular form of the moulded module Commission's Legal Department. technique. The Court, on hearing the report of the DAC-1 OH type modules are hybrid Judge-Rapporteur and the views of the integrated circuits, because their Advocate General, decided to open the conductor elements are produced on a oral procedure without any preparatory ceramic substrate by the thick-film inquiry and by an order dated 15 technology and are fitted with semi- October 1980 to assign the case to the conductor elements. The fact that all the Third Chamber as provided for by semi-conductor components are encapsu- Article 95 of the Rules of Procedure. lated and that their connecting wires are connected by soldering to the conductor elements does not preclude this class- ification. II — Written observations sub- mitted pursuant to Article 20 of the Protocol on the 4. The national court, considering that Statute of the Court of the determination of the case depended Justice of the EEC on the interpretation of Note 5 (B) to Chapter 85 of the Common Customs Tariff (in its version commencing with The Commission points out to begin with Regulation No 1/72), by an order of 10 that remarkable technical progress has

been made in the sector of the electronic unchanging, permanent and unvarying goods in question in this case. It state of a product. It describes a emphasizes that it is the development of development process which is gradually semi-conductor technology, which has completed and the particular feature of led to the replacement of the electron which is that tubes are replaced by tube by the transistor, that is especially transistors. The degree of miniatur- relevant. After outlining the development ization achieved is irrelevant to the of this technique it stresses that the tariff answer to be given to the question classification of these products, whose whether or not it is possible to speak of properties and external features have a discrete miniaturized component. In been developed and modified just as order to determine whether, in some speedily, gives rise to certain problems. cases, the capacitors used in the con- These problems were especially difficult struction of a circuit may be regarded as at the end of the sixties when the discrete miniaturized components, it is Common Customs Tariff mentioned necessary to establish whether these under heading 85.21 simply "Transistors components have been devised in such a and similar mounted semi-conductor way as to achieve maximum economy of components" (until Regulation No space within the possible technological 1/71). The Customs Cooperation limits at the time of their manufacture. Council then set about finding an all- embracing solution to this problem. The wording which that Council adopted has been reproduced in the tariff as from 1 January 1972. According to the Commission it is also necessary to take The order making the reference also into consideration the Explanatory Notes raises the question whether the density in to the Customs Cooperation Council which the components are arranged is a Nomenclature, formerly called "the factor in the definition of the concept of Brussels Nomenclature", which are miniaturization. The national court is contemporaneous with the above- endeavouring to ascertain whether the mentioned amendment. concept "micro-circuit" which implies some reduction of the entire system, allowing space to be saved, presupposes · that the components must be assembled according to a specific density. The Explanatory Notes to the Nomenclature, to which reference has been made, (a) The first part of the question mention the "high density" in which the components are arranged as being a particular feature of electronic micro- circuits. Yet they give no indication of the quantity or number enabling this high density to be defined more exactly. There is a "high density" if the gauge (aa) The first part of the question corresponds to the normal gauge of concerns the interpretation of the modules of the same type manufactured expression "discrete miniaturized during the same period. According to the Commission the usual distance between components" or the equivalent used in the holes made in circuit boards was at Note 5 (B) (a) and (c). According to the the time of the imports in question about Commission the word "miniaturization" 5 mm, whereas nowadays the gauge is denotes a tendency to make components about 2.5 mm. of the smallest possible size and not the

(bb) The part of the question combined" found in Note 5 (B) (a) to concerned with the interpretation of Chapter 85 of the Common Customs the expressions "discrete component" Tariff. [Einzelbauelement"] within the meaning of Note 5 (B) (a) is intended to make it (aa) The purpose of casting electronic possible to establish whether the goods circuits into a block is above all to in question are in fact "discrete" protect the components of the circuit and components only or whether there are the conductors from the effects of the also integrated circuits (monolithic or environment. This operation usually hybrid). In fact, whereas discrete produces an inseparable physical entity, components are physical entities having namely a block into which the various one electrical function only (such as components are cast. According to the transistors, diodes, resistors), the Explanatory Notes to the Nomenclature particular feature of integrated the special feature of the moulded components is that, although they are module technology is the fact that "the also an entity from the physical point of components are encased in a block . . . view, they perform several electrical generally of artificial resin". It is above functions. all clear from the English version of Note 5 (B) (a) to Chapter 85 of the tariff, which simply mentions "moulded The problem of delimitation raised by modules" that the concept of "moulded the national court arises only as regards module technology" does not merely the German version of Note 5 (B) (a) cover the special process of the so-called which does not rule out the possibility of simi-block technology. The Commission an interpretation to the effect that only a takes the view that, in order to be able to physical entity is involved. Such an speak of moulded module technology, it interpretation must however be rejected. suffices if the components of the circuits On the one hand from the point of view are cast in accordance with some of systematic interpretation Note 5 (B) technological process. It is in the interest draws a a clear distinction between the of legal certainty and ease of verification integrated circuits in question (under that reference is made to the objective subparagraphs (b) and (c)) and non- characteristics and properties of the integrated circuits (referred to under product in question (judgment of 16 subparagraph (a)). On the other hand all December 1976 in Case 38/76, Industrie- the other language versions of Note 5 metall Luma GmbH v Hauptzollamt (B) (c) include the concept of a Duisburg [1976] ECR 2027). In the "discrete" component, which from the Commission's view any casting material linguistic point of view excludes which is used for the production of integrated circuits for the very good circuits in the form of blocks forming a reason that it is used as opposed to the physical entity, may fall within the concept of the integrated component. moulded module technology.

components of which may be easily passive elements. The passive elements unsoldered and replaced by others. (resistors, capacitors etc.) are fitted on to the support by vacuum metal-plating by means of a special process, namely by However, it should be emphasized that thin or thick-film technology, which even in the case of modules manu- brings about a close association both factured in accordance with the moulded between the circuit components them- module technology or one of the other selves and between the circuit and the processes mentioned in Note 5 (B) (a) it support. That makes it necessary to use is possible to replace some of the glass, ceramic or a material having the components. Having regard to the cost same characteristics (for example quartz) of this operation and the risk of further as a carrier for the components. For this damage it is undertaken only in special reason Note 5 (B) (c) mentions an "insu- cases. In the Commission's view this type lating substrate". of module is covered by the expressions "similar types" and "which are combined" within the meaning of Note 5 As far as concerns the use of the other (B) (a). As far as concerns modules components (transistors, diodes, etc.) inserted in housings without being cast it Note 5 (B) (c) simply states generally is the method whereby they are inserted that they are "obtained . . . by semi- in the housing which determines whether conductor technology". The latter in such circumstances they may or may technology covers "discrete" components not be called "similar types". If the as well as monolithic integrated circuits incorporation in a housing leads to the both of them being mentioned creation of a permanent physical entity incidentally in order to state accurately made up of a housing and of circuit the definition of the concept "semi- components which can only be separated conductor technology" which is found in at extremely high cost it is then possible the actual note. By way of confirmation to speak of a "similar type" within the the second sentence of Note 5 (B) (c) meaning of Note 5 (B) (a). This is in expressly states that hybrid integrated particular the case where the opening of circuits may include "miniaturized the housing involves a risk of the actual discrete components". Even where circuit's being damaged or where the discrete components alone are used, it methods adopted to open the housing would be possible to speak of a hybrid and carry out the repairs are dis- integrated circuit, provided that the proportionate to the value of the circuit other conditions laid down by Note itself. 5 (B) (c) are fulfilled.

if no particular steps are taken, it is "1. The expression 'discrete components’ perfectly possible to separate these ('Einzelbauelemente’) within the components from the rest of the circuit meaning of Note 5 (B) (a) and (c) to (by unsoldering them) and to replace Chapter 85 of the Common Customs them with others. In such circumstances Tariff must be interpreted as there can be no question of a meaning that they refer only to combination "to all intents and purposes physical entities performing one indivisibly" within the meaning of Note basic electrical function (transistors, 5 (B) (c). Nevertheless if, after the diodes, resistors, etc.).

This argument is confirmed by the English 2. The expressions 'moulded module version of Note 5 (B) (c) ("to all intents type’ and 'which are combined' and purposes indivisibly"). It is for the within the meaning of Note 5 (B) (a) national court to establish in each case to Chapter 85 of the Common whether the circuit was in fact connected Customs Tariff must be interpreted to the housing in such a way that the as meaning that they denote any conditions laid down for customs classi- process whereby micro-circuits are fication permit classification as a hybrid incorporated in material which has integrated circuit. been cast so as to form a physical entity in the shape of a block.

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3. Note 5 (B) (c) to Chapter 85 of the the concepts of "discrete element" or Common Customs Tariff must be "discrete component" must be regarded interpreted as meaning that it also as contrasting with that of "integrated covers circuits comprising primarily components". Those concepts cover only or exclusively miniaturized discrete components consisting of a single components apart from components electronic circuit element, such as diodes, fixed by means of thin- or thick-film transistors, resistors or condensers, and technology. The active and passive not circuits such as monolithic integrated elements of a hybrid integrated circuits which fulfil several electrical circuit are 'combined to all intents functions. As regards the concept of and purposes indivisibly' within the "miniaturization", it presupposes that meaning of the provision in question each of the components utilized is if all the components used are actually, at least to some extent, smaller combined to form a physical entity than that normally manufactured at the and the construction of the system as time in question. The concept of a whole indicates that no inter- "moulded module technology", which is ference with this entity has been not a term of electronic jargon, relates to contemplated." the moulding of a separate block and not to encasement in a plastic housing which may be filled with a cast.

JUDGMENT OF 19. 11. 1981 — CASE 122/80

Decision

1 By order of 10 April 1980, received at the Court on 14 May 1980, the Finanzgericht München [Finance Court, Munich] referred to the Court under Article 177 of the EEC Treaty, a question for a preliminary ruling on the interpretation of Note 5 (B) to Chapter 85 of the Common Customs Tariff in the version adopted in Regulation (EEC) No 1/72 of the Council of 20 December 1971 amending Regulation (EEC) No 950/68 on the Common Customs Tariff (Journal Officiel 1972, L 1, p. 1).

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and passive miniaturized components which are combined and interconnected; (b) monolithic integrated circuits in which the circuit elements (diodes, transistors, resistors, capacitors, inter-connections, etc.) are created in the mass (essentially) and on the surface of a semi-conductor material (doped silicon, for example) and are inseparably associated; (c) hybrid integrated circuits in which passive and active elements, some obtained by thin- or thick film technology (resistors, capacitors, inter-connections, etc.), others by semi-conductor technology (diodes, transistors, monolithic integrated circuits, etc.), are combined, to all intents and purposes indivisibly, on a single insu- lating substrate (glass, ceramic, etc.). These circuits may also include miniaturized discrete components.

For the classification of the articles defined in this note, heading No 85.21 shall take precedence over any other heading in the tariff which might cover them by reference to, in particular, their function."

4 The Finanzgericht München took the view that the solution of the dispute in the main proceedings depended on the interpretation of the above-mentioned note and referred the following question to the Court for a preliminary ruling:

"How are the expressions: 1. 'Discrete miniaturized components' (subparagraphs (a) and (c)) ; 2. 'Moulded module type', 'similar types' and 'which are combined' (sub- paragraph (a)); and 3. 'In which . . . elements, some obtained by . . . semi-conductor technology . . . are combined, to all intents and purposes indivisibly' (subparagraph (c)),

7 The Commission, which had expressed the same opinion in its written obser- vations, contended at the hearing that the expression "discrete components" is to be interpreted as covering all the electronic elements constituting an indivisible physical unit and that it may also include monolithic and even hybrid integrated circuits.

8 To begin with, it must be observed that Note 5 (B) distinguishes between three types of electronic micro-circuits, namely micro-assemblies in sub- paragraph (a), monolithic integrated circuits in paragraph (b) and hybrid integrated circuits in subparagraph (c). From the layout of the notes, the inference may be drawn, in the absence of specific explanations to the contrary, that the authors of the note did not regard the micro-circuits of the types included in subparagraphs (b) and (c) as basic units for those of the type referred to in subparagraph (a).

9 Furthermore, it is necessary to draw attention to a difference in the wording between subparagraph (a) and subparagraph (c). In subparagraph (a), the basic units of micro-assemblies are designated by the expression "discrete components", whereas in subparagraph (c) the basic units of hybrid integrated circuits are designated by the expression "elements . . . obtained . . . by semi-conductor technology" and monolithic integrated circuits are

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expressly included amongst them. That shows that the Common Customs Tariff has drawn a distinction between the seemingly more restrictive concept of "discrete components" and the wider concept of "elements obtained by semi-conductor technology", since the former is reserved to basic units having only a single electrical function whereas the latter may include integrated circuits combining several of the functions of an electric circuit.

JUDGMENT OF 19. 11. 1981 — CASE 122/80

Community institutions to take account of it by amending the Common Customs Tariff. Failing such an amendment, the interpretation of the tariff cannot be adapted to changing processes.

1 3 The answer to the question raised must therefore be that the expression "discrete components" within the meaning of Note 5 (B) (a) must be interpreted as denoting physical units consisting of a single electric circuit element and having a single electrical function such as, for example, diodes, transistors or resistors.

T h e c o n c e p t of " m i n i a t u r i z a t i o n "

1 4 The question raised by the Finanzgericht München seeks to ascertain, secondly, what the term "miniaturized" within the meaning of paragraphs (a) and (c) of Note 5 (B) is to be understood as meaning.

15 According to the plaintiff in the main action, the concept of miniaturization is characterized by the fact that each component utilized must actually be at least to some extent smaller than that normally manufactured at the time in question.

20 The Common Customs Tariff has refrained from fixing an absolute figure for either the size of discrete components or their group density. The concept of miniaturization constitutes a relative criterion which refers, at least indirectly, to the normal technical possibilities in existence in the electronics industry at the time of importation. The application of such a concept to a given case may thus depend on technical developments in that field. It is for the national court, where necessary with the assistance of an expert, to determine the state of technology at the time of importation so as to enable that criterion to be assessed.

21 However, contrary to the view expressed by the plaintiff in the main action, it does not follow that each of the components utilized in a module must actually be at least to some extent smaller than the average standard in production in the sector in question at a given moment. Such a requirement would unduly restrict the scope of the relevant provision in a sector in which a tendency towards miniaturization is particularly pronounced. For the purposes of the relevant provision, it is sufficient if the modules are conceived, as regards both the dimensions and the density of the components utilized, in accordance with the tendency to save space prevailing in the industrial sector concerned.

JUDGMENT OF 19. 11. 1981 — CASE 122/80

22 Accordingly, the reply to the question raised must be that the condition of “miniaturization” within the meaning of Note 5 (B) must be understood as meaning that, regard being had to the normal technical possibilities in existence in the electronics industry at the time of importation, the appearance of the modules reveals the manufacturer's effort to save space by utilizing components of small dimensions and by grouping them in a certain density.

any process which consists in incorporating the elements of the module in a cast in such a way as to create a physical entity in the form of a block.

27 According to the first sentence of paragraph F of the Explanatory Notes to the Nomenclature of the Customs Cooperation Council relating to heading 85.21, the expression “electronic micro-circuits” covers a group of electronic devices “which are regarded as single units”. That wording indicates that the modules in question must constitute a group the components of which are intended to be inseparable. Several processes utilized for the various types of modules referred to in Note 5 (B) (a) as “ ‘fagot’ module, moulded module” and “micro-module … types” are moreover characterized by the fact that the components of the modules can, in principle, no longer be separated. Accordingly, it is their indivisible character which must be taken into consideration both in the case of modules in the form of “moulded modules” and in the case of modules of “similar types” within the meaning of the note in question.

28 However, it is not possible to insist on this indivisible character from a strictly technical point of view since it is most frequently possible in theory to separate the components of the units thus constituted by costly means. For a module to be no longer regarded as an indivisible unit, it is sufficient if the separation of its components in particular for the purpose of repair is possible, regard being had to the normal technical possibilities in existence in the electronics industry, by means the cost of which is not disproportionate to the value of the module.

31 The hybrid integrated circuits referred to in subparagraph (c) of the note in question are characterized by the fact that some elements of such micro- circuits are obtained by thin- or thick-film technology whilst others are obtained by semi-conductor technology. The expression "elements obtained by semi-conductor technology" covers both discrete components in the sense referred to above and monolithic integrated circuits. The last sentence of subparagraph (c) of the note in question also explains that some hybrid integrated circuits may include miniaturized discrete components (active or passive or both) and permits their utilization without laying down any restrictions.

32 It follows that Note 5 (B) (c) covers modules containing all kinds of elements obtained by semi-conductor technology, including those which consist, apart from their components manufactured by thin- or thick-film technology, exclusively of discrete components in the sense described above.

33 It is apparent from the order making the reference that the question raised by the national court seeks to establish next what is to be understood by the combination "to all intents and purposes indivisibly" of the two types of element constituting a hybrid integrated circuit.

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Costs

36 The 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 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.

JUDGMENT OF 19. 11. 1981 — CASE 122/80

On those grounds,

THE COURT (Third Chamber)

in answer to the question submitted to it by the Finanzgericht München by order of 10 April 1980, hereby rules:

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various components of a hybrid integrated circuit must be combined in such a way that, regard being had to the normal technical possibilities in existence in the electronics industry at the time of importation, they cannot be separated, in particular for the purpose of repair, except by means the cost of which is disproportionate to the value of the module.

Touffait Mackenzie Stuart Everling

Delivered in open court in Luxembourg on 19 November 1981.

A. Van Houtte A. Touffait Registrar President of the Third Chamber

OPINION OF MR ADVOCATE GENERAL CAPOTORTI DELIVERED O N 8 OCTOBER 1981 1