C-300/82

J U D G M E N T OF T H E C O U R T (SECOND CHAMBER) 10 N O V E M B E R 1983 »

Gesamthochschule Essen v Hauptzollamt Düsseldorf (reference for a preliminary ruling from the Finanzgericht Düsseldorf)

( C o m m o n C u s t o m s Tariff — Exemption of scientific instruments and apparatus — Scientific aids and w o r k i n g materials)

Case 300/82

Common Customs Tariff— Importation free of customs duties — Scientific materials — Scientific instrument — Concept — Wide interpretation — Material constituting an indispensable means of carrying out particular scientific research — Object covered by the term "scientific instrument" (Regulation (EEC) No 1798/75 of the Council, Art. 3 (1))

Since, according to the first recital in the The term "scientific instrument" in preamble to Regulation N o 1798/75, it Article 3 of the aforementioned regu- is necessary to allow "by all possible lation must therefore be interpreted as means" the admission free of customs including a material made up of plastic duties of educational, scientific and blocks and intended for radiological cultural materials, the term "scientific research, inasmuch as the material fulfils instrument" in Article 3 (1) of that regu- an essential function as an indispensable lation cannot be given a narrow in- means of obtaining certain results from terpretation but may, on the contrary, long-term scientific research. include materials manufactured on the basis of scientific discoveries and used not as an object but as a means of scientific research.

HAUPTZOLLAMT [Principal Customs Office] DÜSSELDORF

on the interpretation of Regulation (EEC) N o 1798/75 of the Council of 10 July 1975 on the importation free of Common Customs Tariff duties of educational, scientific and cultural materials (Official Journal 1975, L 184, p. 1), as amended by Regulation N o 1027/79 of 8 May 1979 (Official Journal 1979, L 134, p. 1),

T H E C O U R T (Second Chamber)

composed of: K. Bahlmann, President of Chamber, P. Pescatore and O. Due, Judges,

Advocate General: P. VerLoren van Themaat Registrar: H . A. Rühi, Principal Administrator

gives the following

Consequently, in order to facilitate the "(b) instruments or apparatus of equiv- free movement of ideas and to promote alent scientific value are not being scientific research within the Com- manufactured in the Community." munity, the Council adopted Regulation No 1798/75, which provides for the possibility of importing into the Com- munity certain educational, scientific and In order to obtain the duty-free cultural materials free of duty under the admission under Article 3 (1) of Regu- Common Customs Tariff. Whilst Article lation No 1798/75, the recipient estab- 1 of Regulation No 1798/75 provides lishment or organization must therefore that some of those materials are to be demonstrate that the scientific instrument admitted free of Common Customs or apparatus in question is intended Tariff duties whatever their intended use, exclusively for the purposes of education and whilst Article 2 thereof provides that or pure scientific research. other materials must be intended either for certain public establishments and organizations or for certain establish- Under Article 4 (1) of Regulation (EEC) ments or organizations which may be No 3195/75 of the Commission of 2 otherwise approved, according to Article December 1975 laying down provisions 3 (1) thereof, as amended by Article 1 of for the implementation of Council Regu- Regulation (EEC) No 1027/79, a third lation (EEC) No 1798/75 (Official category of scientific instruments and Journal 1975, L 316, p. 17), the apparatus not covered by Articles 1 and competent national authority is to give 2 may benefit from customs exemption a direct decision on applications for provided that they are imported exemption in all cases where the infor- exclusively for educational purposes or mation at its disposal enables it to assess for pure scientific research. That whether the imports covered by Regu- provision lays down that the instruments lation No 1798/75 have the charac- and apparatus in question are those teristics of scientific instruments or which: apparatus. If the competent national

B — Facts and national procedure The defendant disputed before the national court that the material in question had the characteristics of a The plaintiff in the main action, the scientific instrument or apparatus within Gesamthochschule [Polytechnic/Uni- the meaning of Article 3 of Regulation versity] Essen (hereinafter referred to as No 1798/75, because it was nothing "the plaintiff') imported into the Federal other than the very object on which the Republic of Germany on 8 May 1978, at measurements were carried out. It Düsseldorf Airport, three cartons of therefore constituted, not the instrument goods, described as "goods made of used for research but the object of that plastic, for technical purposes: plastic research, and consequently failed to fulfil blocks" and known as "phantom the conditions prescribed for obtaining material A-150", originating in the the exemption sought, especially as the United States of America. When particular concept mentioned in Article 3 requesting that the goods be released for of the regulation must be interpreted in a free circulation, it asked the Customs narrow, technical sense which differed Office to grant them an exemption from from the sense to be given to the general customs duty. The Customs Office concept mentioned in Article 1. refused the request and charged pro- visional entry taxes amounting to DM By order of 1 December 1982, the 4 130.83 (DM 2 323.91 by way of Finanzgericht Düsseldorf stayed the customs duty and D M 1 806.92 by way proceedings and decided to refer the of import turnover tax). The plaintiff laid following preliminary question to the an objection to the levy of customs duty Court: before the Hauptzollamt [Principal Customs Office] Düsseldorf, which is the "In Regulation (EEC) No 1798/75 of defendant in the main action (hereinafter 10 July 1975, is the term 'scientific referred to as "the defendant") and, instrument' to be interpreted broadly so after the objection had been dismissed, as to include scientific aids and working brought an action against the defendant materials such as phantom material before the Finanzgericht [Finance Court] A-150, a substance made up of plastic Düsseldorf. blocks and intended for radiological research?" In the context of those proceedings, the plaintiff argued that the imported The order making the reference was material must be regarded as a "scientific lodged at the Court Registry on 3 instrument or apparatus" within the December 1982. meaning of Regulation No 1798/75, since it constituted a research instrument. In the grounds of its order the Finanz- It served to simulate human muscle tissue gericht suggested that the Court of and enabled the effect of radiation on Justice should give an affirmative answer the human organism to be measured. to the question raised. It points out that The material had been adopted as an the concept "scientific instrument or internationally approved reference sub- apparatus" is not defined in Regulation

No 1798/75 and also that its meaning is Upon hearing the report of the Judge- ambiguous in current usage. None the Rapporteur and the views of the less, the Finanzgericht takes the view Advocate General, the Court decided to that a broad interpretation of the open the oral procedure without any concept is warranted, in the light both of preparatory inquiry. the regulation's wording and of its objective as expressed in the recitals in the preamble, namely to "facilitate the free exchange of ideas as well as . . . By order of 18 May 1983, the Court scientific research within the Com- assigned the case to the Second munity", which demands common and Chamber. uniform standards for both reference criteria and research methods. The material is manufactured specially for research purposes and has no other intrinsic functions, with the result that it II — W r i t t e n o b s e r v a t i o n s constitutes not an object but a subject of research. The Finanzgericht also refers to the case-law of the Bundesfinanzhof [Federal Finance Court], which decided in favour of a broad interpretation of The plaintiff invites the Court to answer the concept "instrument", so that the the preliminary question in the affirm- descriptions of goods must be ative. Concerning the origins of the understood in their comprehensive and dispute, it explains in detail the charac- general sense, and not in a limited sense; teristics of the material in question and consequently, the concept "instrument" its use in the University Hospital of must be understood in its general sense, Essen. The substance is one which is as a "means" employed in order to specially designed for the quantity attain a given goal. Thus the Bundes- measurement of neutron rays used for finanzhof acknowledged that super- therapeutic purposes, and it serves to refined strontium titanate in monocrys- simulate human muscle tissue so that the talline form, enabling optical and effect of the neutron rays on the human electrical measurements to be carried out organism ("total energy dose DT") may for research and teaching purposes, fell be measured. The material is universally into the category of scientific instruments and uniformly accepted as a reference within the meaning of Article 3 of Regu- substance, it is used in all commercially lation N o 1798/75. available neutron-ionization chambers and it has been adopted for use in all neutron therapy centres in Europe and America with the result that no other material may be substituted for it. Thus it is manufactured solely for research purposes in relation to neutron dosimetry In accordance with Article 20 of the and cannot be put to any other use. In Protocol on the Statute of the Court of Essen it is being used by the medical Justice of the EEC, written observations radio-physics department to simulate and were submitted by the plaintiff, measure the distribution of neutron represented by Mr Wolff, the Director dosages in the human organism when of Administration of the University new techniques of radio-therapy which Hospital (Universitätsklinikum) of Essen, rely on an isocentric cyclotron (the latter and by the Commission, represented by being, incidentally, the only apparatus of J. Grunwald, a member of its Legal this kind in the Federal Republic of Department. Germany) are applied.

Turning to the preliminary question, the Finally, the plaintiff refers to the current plaintiff points first to the wording of the use of the term "instrument", which has recitals in the preamble to Regulation been endowed with a very wide meaning No 1798/75, which proposes the by the relevant dictionaries (for example, application to "scientific . . . materials" "Meyers Enzyklopädisches Lexikon"), of an exemption from Common Customs inasmuch as "instrument" is defined as Tariff duties. As regards more par- "equipment, aid, implement or apparatus ticularly scientific instruments or enabling scientific work to be carried apparatus, the grant of the exemption out". It therefore raises the question why must be subject to the condition that the Council failed to define the meaning instruments of equivalent scientific value of the concepts in question used in the are not available within the Community. regulation if in fact they were intended to be understood as having a special meaning, different from that attributed to them in current usage. Thus the plaintiff casts doubt on the logic of giving to the concepts in question in the regulation a very narrow interpretation, the result of which is that normal The plaintiff begins by asking whether equipment having certain characteristics the concept "scientific instruments and may benefit from the exemption whereas apparatus" is completely identical in "scientific materials" not belonging to content with the general concept the category of "scientific instruments "scientific materials", or whether the and apparatus" in the more restricted former should not be understood in a sense may not do so. more limited sense, as covering merely a part of such materials. The first alter- native would mean that the concept "scientific instrument or apparatus" was necessarily very wide, whilst the second alternative would mean that, in the case of scientific instruments or apparatus alone, the exemption must be subject to their not being available within the Community. The plaintiff therefore concludes that the Court may find either that the concepts "scientific materials" and "scientific instruments and apparatus" are, as regards their content, wholly identical and wide-ranging or else that the concept "scientific instruments and apparatus" must be interpreted more The plaintiff then points out that under narrowly than "scientific materials", so Article 3 (4) of Regulation No 1798/75 that all "scientific materials" may benefit even normal equipment enjoys an from the exemption — even when they exemption provided that it has certain fall outside the category of "instru- characteristics not found in equipment ments" — by virtue of the recitals in the manufactured in the Community. The preamble to Regulation No 1798/75. plaintiff concludes that it is all the more However, the Court may also decide appropriate to grant the exemption to that the exemption must be granted, not scientific materials in the same circum- only to normal equipment displaying stances. "certain characteristics" not possessed by

The material may, moreover, be considered as a necessary accessory to a main instrument. Being part of a Those concepts, on the contrary, relate measuring process, it clearly constitutes a essentially to technical equipment which, product with which, and not on which, by reason of its structure and mode of research is conducted. Inasmuch as it operation, is suited for use in scientific may be considered a necessary accessory research, that is to say, objects which are of a main instrument exempted from made up from certain materials by means customs duty, it, too, is exempted from of a technical process and which, by duty. virtue of their function, in some way constitute "instruments" of research. Neither chemical elements nor chemical compounds such as the material in On the other hand, the Commission takes question meet those criteria. Although the view that the relevant provisions of such substances do have special chemical Regulation No 1798/75 cannot be and physical properties, it cannot be interpreted so widely as to enable a claimed that the various raw materials material such as that involved in this case are the result of technical construction, to benefit from exemption from customs or that the presence of such properties duty. The Commission refers to the fact may be regarded as the performance that the "educational, scientific and of a function. At the very least, a cultural" materials mentioned in the homogeneous chemical in its crude state earlier articles are defined in annexes in in the form of blocks may not be which the various items or categories of regarded as an instrument or apparatus items are listed together with an within the meaning of Article 3 (1) of indication of the Common Customs Regulation No 1798/75. Tariff headings and with a description of the articles, whereas in the case of items included under Article 3, which relates to scientific instruments and apparatus not mentioned in Article 2 imported Similarly, the Commission is of the exclusively for educational purposes or opinion that Article 3 (4) of the regu- for pure scientific research and satisfying lation is not applicable in this case since the conditions laid down in subpara- it covers normal equipment, which graphs (a) and (b) thereof, that system of necessarily presupposes the existence of listing does not apply. Article 3 (4) objects to be equipped, namely the instru- excludes from duty-free admission ments and apparatus referred to in "normal equipment . . . unless it has Article 3 (1) of the regulation. That certain characteristics not found in interpretation is borne out by Annex D equipment manufactured in the to the Nairobi Protocol to the Florence Community". Agreement, which lists, apart from the scientific instruments and apparatus

themselves, only certain spare parts, "Regulation (EEC) No 1798/75 of the components and accessories, together Council of 10 July 1975 is not applicable with implements to be used for certain to phantom material A-150, made up of purposes. plastic blocks and intended for radio- logical research." The Commission also excludes the possibility of applying Article 3 (1) and (4) of Regulation N o 1798/75, by Ill — Oral procedure analogy, to homogeneous chemical sub- stances or compounds of the type at At the sitting on 30 June 1983, oral issue, on the grounds that exemption argument was presented and questions from Common Customs Tariff duty asked by the Court were answered by represents an exception in terms of Professor Jürgen Rassow, head of the the Community's system of customs Medical Radio-Physics Department of legislation and that, as a matter of Essen University Hospital, for the principle, provisions laying down plaintiff in the main action, and J. exceptions may not be applied by Grunwald, a member of the Com- analogy. Thus the Commission has mission's Legal Department, assisted by already decided, on the basis of a Dr Martin Oberhofer, Wissenschaftlicher unanimous opinion from the Committee Referent [scientific adviser], Euratom on Duty-Free Arrangements set up by Joint Research Centre at Ispra, and Mr Article 7 of the regulation, that even Naezer, as experts, for the Commission semi-finished products do not fall within of the European Communities. the ambit of that regulation. The Commission observed that Council The Commission observes that the Regulation No 918/83 of 28 March negative reply to the preliminary 1983 setting up a Community system of question which it proposes does not reliefs from customs duty (Official mean that it is unaware of the scientific Journal 1983, L 105, p. 1) contains a value of certain chemicals for research. It special provision for the admission of was, incidentally, for that reason that as biological or chemical substances free early as 1979 it submitted to the Council from import duties under certain a proposal for a regulation dealing with conditions, provided that they are the extension — subject to certain included in a list drawn up in accordance conditions — of the duty-free import with the procedure laid down in Article system to biological and chemical sub- 143 (2) and (3) of the regulation. That is stances. a new provision which is not required by the Florence Agreement. For the reasons given above, the Commission proposes that the following The Advocate General delivered his answer be given to the preliminary opinion at the sitting on 22 September question: 1983.

4 On the rejection of that argument by the Hauptzollamt, the Finanzgericht Düsseldorf referred to the Court for a preliminary ruling the following question:

"In Regulation (EEC) No 1798/75 of the Council of 10 July 1975, is the term 'scientific instrument' to be interpreted broadly so as to include scientific aids and working materials such as phantom material A-150, a substance made up of plastic blocks and intended for radiological research?"

5 It appears from the papers before the Court that the material in question has a special composition resulting from discoveries of scientific research and is manufactured by only one undertaking which is situated outside the

JUDGMENT OF 10. 11. 1983 — CASE 300/82

Community. On being exposed to radiation it produces, owing to its composition, reactions similar to those of human tissue. For that reason it is used in scientific research projects undertaken in the interests of human health as a means of measuring the effect of neutron rays on human tissue.

6 The use of the material in question also serves to facilitate the assessment and comparison, at the international level, of the results of scientific research projects in the field of neutron dosimetry.

n In that context it is impossible to find support for a narrow interpretation in the fact that Article 2 of Regulation N o 1798/75 refers generally to scientific "materials" listed in Annex II, whereas Article 3 (1) relates to "scientific instruments and apparatus" not included in Article 2.

i2 Article 3 in fact contains two additional criteria which permit a sufficiently precise definition to be given of a scientific instrument which may be admitted free of customs duty, namely that it should be intended exclusively for scientific research or education and that it is not being manufactured in the Community. In view of those two conditions for the grant of exemption, it is inappropriate to interpret the concept in question in a manner contrary to the purpose of Regulation No 1798/75 as set out above:

is Moreover, it should be noted that Article 3 of Regulation N o 1798/75 was amended by Regulation N o 1027/79 (Official Journal 1979, L 134, p. 1) and that Article 3 (3) as amended gives a general definition of the term "scientific instrument or apparatus", following in part the example set by the Court in its judgment of 2 February 1978 in Case 72/77, Universiteitskliniek Utrechty Inspecteur der Invoerrechten en Accijnzen, [1978] ECR 189.

M Artide 3 (3) as amended is not applicable in this case, since the facts upon which the dispute in the main action are based occurred before the amendment of Regulation No 1798/75; even so it cannot justify such a narrow interpretation.

is Nor does the above-mentioned judgment of the Court prevent the term "scientific instrument" from being interpreted widely enough to include materials manufactured on the basis of scientific discoveries and used not as

i9 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 proceedings before the national court, costs are a matter for that court.

GESAMTHOCHSCHULE ESSEN v HAUPTZOLLAMT DÜSSELDORF

On those grounds,

T H E C O U R T (Second Chamber)

in answer to the question submitted to it by the Finanzgericht Düsseldorf by order of 20 October 1982 hereby rules:

The term "scientific instrument" in Article 3 of Regulation No 1798/75 must be interpreted as including a material such as the one known as phantom material A-150, made up of plastic blocks and intended for radiological research, inasmuch as the material fulfils an essential function as an indispensable means of obtaining certain results from long-term scientific research.