C-216/82

The national authority's refusal, based on the Commission's decision, to 3. For the purposes of the admission of grant the applicant duty-free ad­ a scientific instrument or apparatus mission is in fact the only measure free of customs duties the question which is directly addressed to it, of whether the instrument in question which it has necessarily been informed and other similar instruments made in in good time and which the applicant the Community are equivalent must may challenge in the courts without not be decided solely on the basis of encountering any difficulty in dem­ the technical specifications which the onstrating its interest in bringing user described in his application as proceedings. According to a general being necessary for his research but principle of law which finds its primarily on the basis of an objective expression in Article 184 of the EEC assessment of their capacity to carry Treaty, in proceedings brought under out the experiments for which the national law against the rejection of user intended to use the imported his application the applicant must be instrument.

In Case 216 / 82

REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht [ Finance Court ] Hamburg for a preliminary ruling in the proceedings pending before that court between

UNIVERSITÄT HAMBURG [ University of Hamburg ]

UNIVERSITÄT HAMBURG v HAUPTZOLLAMT HAMBURG-KEHRWIEDER

and

JUDGMENT

Facts and Issues

The facts of the case, the course of I — Applicable rules the procedure and the observations sub­ mitted under Article 20 of the Protocol The main proceedings concern the grant on the Statute of the Court of Justice of of exemption from customs duties of a the European Economic Community certain scientific instrument imported may be summarized as follows: into the Community. The legal basis for

JUDGMENT OF 27. 9. 1983 — CASE 216/82

Article 1 of the Agreement, which entered into force in 1952, states that: "(a) they are intended for:

"The contracting States undertake not to apply customs duties or other charges Either public establishments prin­ on, or in connexion with, the impor­ cipally engaged in education or tation of: scientific research, including those departments of public estab­ lishments which are principally en­ gaged in education or scientific research;

(b) ... scientific . . . materials, listed in annexes . . . D . . .". Or private scientific or educational establishments authorized by the competent authorities of the Annex D to the Agreement included, Member States to receive such subject to certain reservations, "scientific articles duty-free;

UNIVERSITÄT HAMBURG v HAUPTZOLLAMT HAMBURG-KEHRWIEDER

and provided that: the reasons why an instrument or apparatus which is available in the (b) Instruments or apparatus of Community would not be suitable equivalent scientific value are not being manufactured in the Com­ for the particular research to be munity". undertaken.

Documentary evidence providing all "Equivalent scientific value" must be relevant information on the charac­ assessed in accordance with the second teristics and technical specifications of indent of Article 3 (3) of Regulation No the instrument or apparatus shall be 1798/75 furnished with the application."

(g) the name or business name and address of the Community firm or firms which have been approached II — Facts and procedure under with a view to the supply of an national law instrument or apparatus of a scientific value equivalent to that In August 1976 the plaintiff in the main for which duty-free admission is action, the University of Hamburg requested, the outcome of these (hereinafter referred to as "the approaches and where appropriate plaintiff"), imported into the Federal

JUDGMENT OF 27. 9. 1983 — CASE 216/82

Republic of Germany an electronic Community-made apparatus which they testing and measuring instrument orig­ considered to be of equivalent scientific inating in the USA called a Packard value as well as observations and 2425 Tri-Carb Spectrometer. comparisons between such apparatus and the instrument which the plaintiff had imported. In the customs declaration dated 15 August 1976 the plaintiff described the research project as follows: "Measure­ The summary of the minutes of the ment of radioactivity in the tissues and meeting of the Committee on Duty-Free body fluids of laboratory animals as part Arrangements, to which the Commission of experimental anatomical research to referred the matter, contains the localize and quantify chemical metabolic following information: processes in mammals".

UNIVERSITÄT HAMBURG v HAUPTZOLLAMT HAMBURG-KEHRWIEDER

JUDGMENT OF 27. 9. 1983 — CASE 216/82

" In the expert's report which I am asked value of Searle's SS-Isocap 300 when a to give 'on the question whether liquid test run was carried out at the beginning scintillation spectrometers of similar of 1975. The measuring tests conducted quality, in particular in terms of by Dr Eckstein produced an unac­ efficiency, manner of operation and ceptable number of unusable results and non-reproducible count statistics . . . applications, to the Packard 2425 Tri- Carb Spectrometer imported from the USA are manufactured in the European Community*, that question cannot be A sure and definitive assessment of the answered by a simple 'yes' or 'no' . scientific value of the instruments in question, the Packard 2425 Tri-Carb, the Searle Isocap 300 and the Philips PW The scientific value of a particular 4540, is possible only if the user radiation-measuring instrument (in this measures the typical samples, labelled Ή 14 case the liquid scintillation spectrometer) and C , arising in the given scientific depends on the performance data application he is pursuing, using optimal (specifications) of each type of instru­ energy channel settings on all instru­ ment and the particular application to ments, and if he calculates the normal which the instrument is put by the performance figures. This direct compari­ scientist using it. son will then reliably show whether the above-mentioned instruments have the same scientific value and can be used for ... Since 1954 the instruments made by the same purpose or not. Packard have set the standard for the performance attainable in the given state of technology and thus for the scientific Jï

" 1 . Is a decision that the conditions laid down by Article 3 (1) (b) of Regu­ lation (EEC) No 1798/75 of the Assessment, scientific value Council of 10 July 1975 concerning the duty-free importation of a The comparison covered the Packard specific instrument or apparatus are 2425, the Philips PW 4540, the Berthold not fulfilled, which the Commission BF 5000, the Intertechnique SL 4000 and addresses to the Member States in the Searle Isocap 300 instruments. accordance with the first sentence of Article 4 ( 6 ) of Regulation (EEC) No 3195/75 of the Commission of I believe that the Isocap 300 is an 2 December 1975, of direct and instrument which was made in America individual concern to the person and not in the Member States of the who imported the instrument or Community. apparatus which is the subject of the decision, so that he may bring an The SL 4000 was on the market from action against the Commission and, 1977 but I cannot say whether it was if so, from what time and within already being marketed in 1975 or 1976 which period? (when the decision to purchase an instrument had to be taken). Investi­ gations have so far not indicated that this 2. May a person concerned by a instrument was already on the market. 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 proceed­ In a comparison of the instruments, ings against the Commission within taking into account user specifications, the two-month period laid down by the Packard 2425 was, in 1976, superior the third paragraph of Article 173 of to the others and therefore had greater the EEC Treaty or can the decision's scientific value. legality also be contested before a national court in an appeal against ĪJ the assessment to customs duty, so that the national court may, if necessary, submit the question of the In a report dated 7 June 1982 Mr Dau decision's validity to the Court of stated inter alia: Justice of the European Communi-

The Finanzgericht takes the view that, if the decision's validity may not be contested before the national court, that In its order for reference the Finanz­ court must dismiss the action for the gericht observes that Commission De­ annulment of an assessment to customs cision 78 / 851 / EEC is addressed to the duty provided that there is no evidence Member States. It adds, however, that it to suggest that the Commission's also directly concerns the person who decision was unlawfully adopted. If there imported the goods in question. Conse­ is evidence of illegality, however, the quently the Finanzgericht is inclined to national court may or, depending on the think that such a person must be entitled case, must request a preliminary ruling to institute proceedings under Article from the Court under Article 177 of 173. On the question of the period for the EEC Treaty. The Finanzgericht instituting proceedings, it adds that considers that it is itself prevented from Article 81 (1) of the Rules of Procedure declaring the Commission's decision to of the Court provides that the period is be unlawful or invalid. That decision is to run from the 15th day after the pub­ one for the Court, irrespective of the lication of the measure in the Official procedure followed. 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. 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, The Finanzgericht considers that de­ namely that considering user specifi­ cisions of the Commission may not be cations no instrument made in the Com­ challenged once the period for instituting munity is equivalent in value to the

Packard Model 2425. According to the Ill — Written observations 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 1. On the first and second questions 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 As regards the first question, the Danish whether the Community-made product is Government agrees that the plaintiff is of equivalent value if it does not provide directly concerned by the contested measurements as accurate as those decision since the Commission's adverse furnished by the imported apparatus. It decision allows the Member State no must be remembered that the instruments discretion; on the contrary, it requires it in question are acquired for carrying out to adopt a decision of specific purport highly specialized research projects. In with regard to the plaintiff. As it is clear the view of the Finanzgericht the rule from the background to the case that the laid down in Regulation No 1798/75 Commission's decision was adopted after that scientific equipment is in principle to the plaintiff had made a specific appli­ be exempted from customs duty would cation to the German authorities, the be reduced to a nullity if, in view of the Danish Government further considers Community's generally high technical that for that reason the plaintiff is standards, the clause protecting Com­ concerned individually. The fact that the munity interests were to be construed decision is addressed to all the Member too liberally in favour of Community States does not, however, detract from products of inferior performance. its individual character in relation to the plaintiff because, in the first place, the assessment to be undertaken changes as time goes by and, secondly, it must be made on the basis of the precise needs which the apparatus in question is In accordance with Article 20 of the expected to satisfy. A reservation is Protocol on the Statute of the Court of necessary, however, namely that the first Justice of the EEC, written observations question can be answered definitively were submitted by the Danish Govern­ only in proceedings brought before the ment, represented by L. Mikaelsen, Legal Court under Anicie 173 of the Treaty. 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. On the second question the Danish Government observes first of all that Article 177 of the Treaty confers jurisdiction on the Court to decide by way of a preliminary ruling whether or not measures of the Community Upon hearing the report of the Judge- institutions are valid and lays down no Rapporteur and the views of the restriction in this' respect. Article, 177 Advocate General the Court decided to assumes that the question of the validity open the oral procedure after asking the of measures of Community institutions Commission certain questions. may be raised at any time before a court

of a Member State and a decision on The Commission considers that an that issue may be necessary to enable the express answer to the first two questions national court to give judgment. That would serve no purpose. In so far as they circumstance, as well as the fact that the concern the admissibility of the reference procedure laid down by Article 177 of those questions will be answered inci the Treaty is meant to meet the needs of dentally when the substance of the case national courts, was mentioned by the comes to be examined. In so far as the Court in its judgment of 12 October questions go beyond the present case, 1978 in Case 156/77 Commission v inasmuch as they apply to the question Belgium [1978] ECR 1881. On that of admissibility in abstracto, they do not ground alone the Danish Government need to be answered since they are not believes that it is possible to conclude necessary for the decision in the case in that the plaintiff may contest the validity point, as required by Article 177 of the of the decision in question.

The Commission Member States which took part in the believes, however, that, even if such an deliberations of the group of experts are action had been admissible at the time, able to judge whether the decision is the fact that no action was brought valid. The Danish Government therefore under Article 173 does not cast doubt on thinks that it is reasonable that the the admissibility of this request for a institution which applied to import goods preliminary ruling. To claim the contrary free of duty may await the decision of would be to treat Article 177 as the national authorities, which in this subordinate . to Article 173; such a instance was not adopted until several relationship would not only have no months after the expiry of the period for support in the language of those bringing an action for a declaration of provisions but would also compel the nullity before the Court. national court, before requesting a pre liminary ruling under Article 177, to examine in the main proceedings the preliminary question whether one of the parties to the dispute could or ought to have challenged the Community measure pursuant to the second paragraph of Article 173.

To form of a request for a preliminary avoid that "intermediate" procedure ruling.

under Anicie 177, the national court the Court has never entered upon such might consider submitting to the Court an examination in proceedings for a pre of Justice in the same reference under liminary ruling or even indicated that it Article 177 first the question of is necessary. admissibility and then, in the event of an affirmative answer to that question, the substantive issue. The result would still be the same, however, for the Court would again have to consider the 2.

founded. Secondly, if the question required and whether its performance is whether or not the validity of a measure comparable with that expected of an may be examined under Article 177 is appliance made in a non-member made dependent on whether an action country. for a declaration of nullity is possible, then proceedings under Article 177 must a fortiori be inadmissible if a measure is not open to challenge even under Article The plaintiff's criticism is in fact directed 173. Otherwise persons on whom Article solely at the performance of Com 173 expressly confers a right of action munity-made instruments which, ac would have that right for only two cording to the expert's report of 13 months whereas those persons who are October 1977 furnished by the plaintiff, not even entitled to bring proceedings are inferior in nine respects to that of the under Article 173 could refer the matter Packard. Thus the competing Com to the Court under Article 177 without munity instruments are criticized on the any time-limit. It therefore appears that a ground that they cannot provide services theory which attempts to link Articles comparable to those expected of the 173 and 177 in the way described leads instrument imported by the plaintiff.

JUDGMENT OF 27. 9. 1983 — CASE 216/82

Carb spectrometer are, so to speak, The Commission observes in addition inherent in the physical phenomena to be that, contrary to what Dr Dau supposes, studied. The Commission's decision, on namely that the Isocap 300 is made in the other hand, was taken having regard the USA, a competent expert of the to the use and the particular purpose former manufacturer, Searle, has intended in this case. All those taking confirmed that the instrument is made in part in the decision-making process were the Community (The Netherlands) as aware of the intended use of the well as in the United States. instrument and the plaintiffs objections to competing products made in the Community. For the reasons set out above the Commission proposes that the third question should be answered as follows :

The validity of the decision of 5 October The Advocate General delivered his 1978 is not therefore susceptible of any opinion at the sitting on 22 June 1983. legal objection.

UNIVERSITÄT HAMBURG v HAUPTZOLLAMT HAMBURG-KEHRWIEDER

Decision

1 By order of 20 July 1982, which was received at the Court on 20 August 1982, the Finanzgericht [Finance Court] Hamburg referred to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of, first, Articles 173 and 177 of the EEC Treaty and, secondly, Regulation (EEC) No 1798/75 of the Council of 10 July 1975 on the importation free of Common Customs Tariff duties of educational, scientific or cultural materials (Official Journal 1975, L 184, p. 1) and Regulation (EEC) No 3195/75 of the Commission of 2 December 1975 laying down provisions for the implementation of Regulation No 1798/75 (Official Journal 1975, L 316, p. 17).

2 Those questions were raised in an action brought by the University of Hamburg against the refusal of the German customs authorities to grant the exemption on the occasion of the importation of an electronic testing and measuring instrument called a Packard 2425 Tri-Carb Spectrometer which came from the United States of America and which the university intended to use for the "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".

3 According to the documents before the Court, the German authorities referred the university's application to the Commission in accordance with the provisions of the aforesaid regulations. In its Decision No 78/851 of 5 October 1978 (Official Journal 1978, L 293, p. 30) addressed to all the Member States the Commission declared that the conditions for admission free of customs duty set out in Article 3 (1) (b) of Regulation No 1798/75 were not fulfilled because apparatus of equivalent scientific value and capable of being put to the same particular use were manufactured in the Community. As a result of that decision on 7 May 1979 the German auth­ orities finally rejected the university's application.

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 because, 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?"

The first two questions

s By these questions the national court in substance seeks to ascertain whether, by not having brought proceedings under the second paragraph of Article 173 against a decision of the Commission of the type in question within the periods stipulated in the third paragraph of that article, the person or persons concerned by that decision are, according to Community law, precluded from relying upon the invalidity of that decision in proceedings before a national court. For the purpose of resolving that issue the procedure established by the aforesaid regulations should be considered.

UNIVERSITÄT HAMBURG v HAUPTZOLLAMT HAMBURG-KEHRWIEDER

6 Article 3 of Regulation No 3195/75 requires an application for duty-free admission to be submitted to the competent authority of the Member State in which the scientific establishment in question is situated. Article 4 requires that national authority to give a direct decision on applications in all cases where the information at its disposal enables it to decide whether or not there exist apparatus of equivalent scientific value which are currently manu­ factured in the Community. Only if the national authority considers that it is unable to decide that question for itself is it therefore bound to refer it to the Commission and Community law does not require the applicant to be informed of that reference.

JUDGMENT OF 27. 9. 1983 — CASE 216/82

difficulty in demonstrating its interest in bringing proceedings. According to a general principle of law which finds its expression in Article 184 of the EEC Treaty, in proceedings brought under national law against the rejection of his application the applicant must be able to plead the illegality of the Commission's decision on which the national decision adopted in his regard is based.

n That statement is sufficient to provide an answer capable of dispelling the doubts expressed by the national court without there being any need to consider the wider issue of the general relationship between Articles 173 and 177 of the Treaty or to give a separate answer to the first question.

i2 The answer to the first two questions of the Finanzgericht should therefore be that the person or persons concerned by a decision adopted by the Commission pursuant to Article 4 of Regulation No 3195/75 may plead the illegality of the decision before the national court in proceedings against the fixing of customs duty and that the question of the validity of the decision may therefore be referred to the Court in proceedings for a preliminary ruling.

The third question

i3 In this question the Finanzgericht asks whether Decision 78/851 is invalid on the ground that the performance of the similar apparatus manufactured in the Community is lower than that of the imported apparatus, having regard in particular to the user's specifications.

is A further point to be made is that the question whether the instruments in question are equivalent must not be decided solely on the basis of the technical specifications which the user described in his application as being necessary for his research but primarily on the basis of an objective assessment of their capacity to carry out the experiments for which the user intended to use the imported instrument. The experts' reports which the national court ordered in the present case are based, however, on the technical specifications stipulated by the university and they do not consider whether these are justified with reference to the intrinsic needs of the planned research; they contain the express reservation that it is not possible to arrive at a reliable judgment of the scientific value of the instruments in question except by using them for the scientific object in view and comparing their performance. It follows that those experts' reports are not sufficient to demonstrate the existence of a manifest error which would render the decision in question invalid.

16 Since there is no other evidence before the Court to prove the existence of such an error or a misuse of power, the answer to the third question must be that consideration by the Court has disclosed no factor of such a kind as to affect the validity of Commission Decision 78/851 of 5 October 1978.

Costs

i7 The costs incurred by the Danish Government and by the Commission of the European Communities, which 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.

Mertens de Wilmars Pescatore O'Keeffe Everling

Mackenzie Stuart Koopmans Due Bahlmann Galmot

Delivered in open court in Luxembourg on 27 September 1983.

For the Registrar

H . A. Rühi J. Mertens de "Wilmars President Principal Administrator