C-45/83

In Case 45/83

REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht München [Finance Court, Munich] for a preliminary ruling in the action pending before that court between I — Language of the Case: German.

JUDGMENT OF 26. 1. 1984 — CASE 45/83

LUDWIG-MAXIMILIANS-UNIVERSITÄT MÜNCHEN [Ludwig-Maximilian University of Munich]

and

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

Facts and Issues

The facts of the case, the course of the customs duty for glass flasks, imported procedure and the observations sub- by the applicant and intended for the mitted pursuant to Article 20 of the preservation and cultivation in a sterile Protocol on the Statute of the Court of medium of tissue cultures of human Justice of the EEC may be summarized cancer cells, which it is claimed should as follows: be classified as scientific instruments or apparatus. The legal basis for the import- ation of those instruments and apparatus is Regulation No 1798/75 of the Council I — Facts and procedure of 10 July 1975 on the importation free of Common Customs Tariff duties 1. Legal context of educational, scientific and cultural

The dispute in the main proceedings relates to the grant of an exemption from

LUDWIG-MAXIMILIANS-UNIVERSITÄT MÜNCHEN v HAUPľZOLLAMT MÜNCHEN-WEST

materials (Official Journal 1975, L 184, either for certain public establishments p. 1). and organizations or for certain other duly approved establishments and organizations, by virtue of Article 3 (1) of the regulation a third category of That regulation is intended to give effect scientific instruments and apparatus not in the Community to the Florence referred to in Articles 1 and 2 thereof Agreement which was drawn up under may be admitted free of customs duties the auspices of the United Nations provided that they are imported Educational, Scientific and Cultural exclusively for educational purposes or Organization. According to Article 1 of for pure scientific research. That that agreement, which entered into force provision concerns instruments and in 1952, apparatus which:

Consequently, in order to facilitate the "(b) Instruments or apparatus of equiv­ free exchange of ideas and scientific alent scientific value are not being research within the Community, the manufactured in the Community". Council adopted Regulation N o 1798/75 by virtue of which certain educational, scientific or cultural materials may be In order to qualify for duty-free import­ imported into the Community free of ation under Article 3 (1) of Regulation Common Customs Tariff duties. No 1798/75, the establishment or Whereas under Article 1 of Regulation organization for which the articles arc No 1798/75 certain of those materials intended must therefore establish that the are admitted free of Common Customs import in question relates to a scientific Tariff duties whatever their intended use instrument or apparatus intended exclus­ and under Article 2 of the same regu­ ively for educational purposes or for lation other materials must be intended pure scientific research.

JUDGMENT OF 26. 1. 1984 — CASE 45/83

According to the infor- claimed that the imported glass flasks mation furnished by the plaintiff, the should be regarded as "scientific· instru- flasks are made of flint glass, a material ments, apparatus or utensils" within the which even during long storage meaning of the German version of Regu- discharges no substances into the alkaline lation No 1798/75, since they should be medium. The flasks also have a flat base, considered to be research instruments which enables the cells to grow, and a or utensils. "Instrument" is defined in special lip, constructed specifically for specialized dictionaries as a means, tissue culture media and making it utensil or precision tool and con- possible to pour out the solutions sequently applies to the imported glass without their running down the side of flasks. Moreover, the goods in question the flask, which is very important on are utensils ("Geräte") within the account of the stringent requirements meaning of Regulation No 1798/75 regarding sterility. since that word is understood to refer to tools, items of equipment or articles for everyday use, machine, accessories and When applying for clearance to release utensils ("Utensilien"). the goods into free circulation, the plaintiff asked the customs office to grant exemption from customs duty for Before the national court the defendant

The Großer satisfied, however, the defendant served Duden foreign language dictionary also a notice of re-assessment dated 27 June describes an instrument as a "means, 1977, making a retroactive demand for utensil or precision tool (for technical or customs duty amounting to D M 357.20, scientific work)". together with the proportionate import turnover tax payable thereon, amounting to D M 39.20. The reason stated was that Consequently — again according to the the glass flasks in question did not have defendant — an instrument is a product the characteristics of instruments, having the characteristics of a tool with apparatus or utensils (the latter word — which a job or an activity may be "Geräte — appears in the German performed, during which the instrument

LUDWIG-MAXIMILIANS-UNIVERSITÄT MÜNCHEN v HAUPTZOLLAMT MÜNCHEN-WEST

not the case with glass flasks which serve In the statement of grounds of its order, in a merely passive manner for the the Finanzgericht points out that the growth and preservation of culture most important question is whether the media in sterile conditions. Neither are phrase "scientific instruments, appa- they utensils of the kind with which ratus" is merely a circumlocution for the Article 3 (1) of Regulation No 1798/75 broad concept of "article" or whether it is concerned but at the most are refers to a particular type of goods, equipment ("Gerätschaften") which is characterized by specific distinctive not covered by the provisions in features and characteristics. The latter question. Those provisions are not interpretation is supported by the fact intended to v grant outright exemption that the term "article" is employed in the from customs duty for "articles" but regulation not only in Article 3 (1) but only for scientific instruments, apparatus also elsewhere; moreover Article 3 (2) and utensils. Moreover, only scientific contains specific rules for components instruments or apparatus ("instruments et and accessories and the phrase appareils scientifiques") are mentioned in mentioned above corresponds to the the French and English versions of the terminology used in the Common article in question. In the German Customs Tariff which attributes a version, the word utensils ("Geräte") is narrower meaning to that phrase than to therefore only a linguistic expedient for "goods" or "articles". It is difficult to supplementing and rounding off the perceive, from the spirit and purpose of terms "Instrumente" and "Apparate". Regulation No 1798/75, any valid reason for making the grant of a customs concession for goods dependent on additional features over and above the requirement of particular suitability for scientific research implied by the By order of 8 March 1983 the Finanz- adjective "scientific". gericht München stayed the proceedings and decided to submit the following question to the Court for a preliminary ruling:

In the light of the terminology used in II — W r i t t e n o b s e r v a t i o n s sub- the Common Customs Tariff and on the m i t t e d to t h e C o u r t basis of the connection between the double term "instruments and apparatus" and the adjective "scientific", the principal feature to be taken into account as conferring upon goods the nature of The Commission emphasizes in the first apparatus or instruments is the existence place that in its opinion the German of a mechanism or other devices by version of Regulation No 1798/75 goes means of which a substance may be further than the other versions and worked on, processed or otherwise further than the English and French treated or whereby certain physical or versions in particular. The latter are of chemical states or phenomena (for particular importance because Regulation example temperature or vacuum) may No 1798/75 implements the Florence be produced and controlled or else Agreement of 21 May 1952 in the perceived and measured. Community and that agreement is drawn up in English and French. Whilst in all cases the German text refers to On the other hand, it cannot be "Wissenschaftliche Instrumente, Appa- regarded as sufficient that an item of rate und Geräte" (scientific instruments, goods serving only as a receptacle is, in apparatus, and utensils), the other the light of the objective to be attained versions mention only "instruments and and by virtue of the properties of the apparatus" ("instruments et appareils"). material of which it is made, capable of The Commission considers that the eliminating interference from ambient plaintiff in the main proceedings cannot factors whilst a substance is being treated therefore rely upon a single version of or a process is going on. Articles of that the regulation in question which is less kind can be classified as instruments or restrictive than the other language apparatus only if they are equipped with versions. And that version is not devices by means of which the nature confirmed either by the Florence and intensity of such interference can be Agreement or by the instructions given determined and controlled or measured. for the implementation thereof or by practice in the signatory States or by that of the Community itself. It should be In accordance with Article 20 of the added that in the meantime the German Protocol on the Statute of the Court of version has been brought into line with Justice of the EEC, written observations the other versions by article 140 (1) (d) were submitted by the Commission, of Regulation No 918/83 of the Council represented by Jörn Sack, a member of of 28 March 1983 setting up a Com- its Legal Department. munity system of reliefs from customs duty (Official Journal 1983, L 105, p. 1), by removal of the word "Geräte" Upon hearing the report of the Judge- (utensils) from the original text of the Rapporteur and the views of the regulation. Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

The Commission maintains that the German word "Geräte" (utensils) is less restrictive than the words "instrument" and "apparatus". The word "Gerät" Consequently, the only support for the could be used to describe any article of a view put forward by the plaintiff in the particular form which fulfils a certain main proceedings is the assertion that it function in connection with the per- is in harmony with the spirit of that regu- formance of an activity and does not lation for it to be interpreted as broadly necessarily enable an activity to be as possible. However, the Commission performed or another article to be acted objects to that argument in so far as the upon, as is the case with instruments and intention of the legislature to impose apparatus. Thus, articles used for the certain restrictions is not in doubt, since preservation and storage of a substance those restrictions are clearly expressed in may be termed "Geräte" in German the text of the regulation. Nor are they because they fulfil certain functions but vitiated by arbitrariness, in so far as they do not enable an operation to be carried are in conformity with international out or an effect to be produced. practice in this field. Moreover, account must be taken of the fact that even if a liberal interpretation were in the interest of scientific research, the concern to protect manufacturers established in the Moreover, as regards the definition of Community would require the avoidance "instruments and apparatus", the of any excessive extension of customs Commission refers to the examples given exemptions. The legislature certainly in the Unesco official guide for the intended to confine itself to the import- operation of the Florence Agreement and ation of articles of particular importance, its Protocol, the common feature of a characteristic which instruments and which is that the articles described are apparatus display in general. The word

2 T h e question arose in an action b r o u g h t before the national court by Ludwig-Maximilians-Universität M ü n c h e n (Ludwig-Maximilian University of M u n i c h ) for the annulment of the decision of the H a u p t z o l l a m t M ü n c h e n - W e s t [Principal Customs Office, W e s t M u n i c h ) refusing to grant an exemption from customs duties o n the importation of glass flasks, designed for the preservation and cultivation of tissue cultures of h u m a n cancer cells in sterile conditions, o n the g r o u n d that they w e r e n o t scientific instruments or apparatus within the m e a n i n g of the above-mentioned r e g u - lation.

LUDWIG-MAXIMILIANS-UNIVERSITÄT MÜNCHEN v HAUPTZOLLAMT MÜNCHEN-WEST

3 It appears from the documents before the Court that the glass flasks at issue are made of flint glass, a material which even during long storage discharges no substances into the alkaline medium, and in addition have a flat base which enables the cells to grow and a special lip; they are bottles made specifically for research into tissue culture media which enable the solutions to be poured without their running down the side of the flask, thus meeting the strictest requirements regarding sterility.

4 The plaintiff in the main action claimed before the national court that the articles in question should be regarded as "scientific instruments or apparatus" within the meaning of the above-mentioned regulation, since the word "instrument" is defined in specialized dictionaries as a means, utensil or precision tool, and the glass flasks were utensils ("Geräte") within the meaning of the regulation.

s First, it should be stated that neither the Florence Agreement nor Regu- lations No 1798/75 contains a definition of the terms "instruments" an "apparatus" for the purposes of Article 3 (1) of the regulation. However, as the Court has already stated, it follows in particular from the first recital in the preamble to that regulation, which provides that it is necessary to allow, "by all possible means", the admission free of customs duties of educational, scientific and cultural materials, that the terms "instruments" and "apparatus" in Article 3 (1) of Regulation No 1798/75 cannot be given a narrow interpretation.

9 Nevertheless, the terms in question must be defined in such a way that the exemption from customs duties covers only items possessing objective characteristics which make them particularly suitable for pure scientific research (cf. judgment of 2 February 1978 in Case 72/77, Universiteitskliniek Utrechty Inspecteur der Invoerrechten en Accijnzen, [1978] ECR 189).

io Such suitability must therefore be inherent in the item for which exemption is requested. It follows that exemption from duty can be granted only in relation to items which, by virtue of their particular technical structure and functioning, themselves serve directly as a means of scientific research.

1 1 On the other hand, an item which is used not as a means but only as an object of scientific research cannot be described as a scientific instrument or apparatus; indeed, where research is carried out not by means of that item but on it, the item plays only a purely passive role in the research process.

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

On those grounds,

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

in answer to the question submitted to it by the Finanzgericht München by order of 8 March 1983, hereby rules:

The first sentence of Article 3 (1) of Regulation No 1798/75 must be interpreted as not including items such as receptacles which are intended

OPINION OF MR VERLOREN VAN THEMAAT — CASE 45/83

1 — Translated from the German.