C-232/86
ECLI:EU:C:1987:434
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OPINION OF MR MANCINI — CASE 232/86
O P I N I O N O F M R ADVOCATE GENERAL MANCINI delivered o n 8 October 1987*
Mr President, an objection which was rejected, whereupon Members of the Court, it brought an action before the Finanz- gericht Berlin.
1. Once again the Court is called upon to interpret the Community legislation on the Before that court, it argued that the two exemption of scientific instruments and German instruments (designated by the apparatus from Common Customs Tariff code numbers IFS 110 and IFS 85) could duties. In proceedings brought by Nicolet not be regarded as equivalent to the United Instrument GmbH (hereinafter referred to States instrument because they were capable as 'Nicolet') against the Hauptzollamt of performances far superior, and hence (Principal Customs Office) Berlin-Packhof, disproportionate, to those required for the the Finanzgericht (Finance Court) Berlin Robert-Koch Institute's experiments. has requested a ruling on whether the Whereas those experiments required a exemption may be refused where an power of resolution of two to four units, the instrument capable of being used for a resolution offered by the much more particular research project is manufactured expensive IFS 110 and IFS 85 models was as in the Community but can achieve much as 0.2 to 0.5 units. For its part, the performances so far superior to the Hauptzollamt based its defence on the imponed instrument that it substantially wording of the Community legislation exceeds the project's objective requirements. according to which the fact that an instrument's performance is superior to research requirements is irrelevant in deter- mining equivalent scientific value. The facts are these. Nicolet imported from the United States of America a Fourier- Transform infra-red spectrometer system model MX-1 E with accessories in order to By an order of 27 June 1986, the Seventh re-sell it to the Robert Koch Institute of the Senate of the Finanzgericht stayed the Bundesgesundheitsamt (Federal Health proceedings and referred the following Board) in West Berlin, which was to use it question to the Court for a preliminary for research on bacteria. Nicolet requested ruling under Article 177 of the EEC Treaty: an exemption from import duty on the ground that instruments of equivalent scientific value were not manufactured in the Federal Republic of Germany or in 'Is an instrument "of equivalent scientific other Community countries. The Haupt- value" within the meaning of Regulation zollamt, however, refused the request and (EEC) No 1798/75 of the Council if, stated that at least two equivalent although it may be used in carrying out the instruments were available, both of which intended research, its performance is so were manufactured by Bruker Analytische disproportionate that on objective Meßtechnik GmbH. Against that decision consideration it cannot reasonably be (dated 23 February 1982), Nicolet lodged considered for use in such research? * Translated from the Italian.
NICOLET INSTRUMENT v HAUPTZOLLAMT BERLIN-PACKHOF
In these proceedings written observations 3. It is that last provision which is at the were submitted by Nicolet, the Netherlands heart of the present dispute. The Finanz- Government and the Commission of the gericht unequivocally comes to the European Communities. Only the conclusion that the principle of propor- Commission submitted argument at the tionality cannot be disregarded in deter- hearing. mining equivalent scientific value. Nicolet endorses that view and adds that to carry out research with inappropriate means — even if they are excessive — is to 2. As the Court knows, the criteria for do violence to the rules of economics and of determining whether scientific instruments scientific method. The Netherlands are equivalent were laid down by Regu- Government and the Commission, on the lation (EEC) No 1798/75 of the Council of other hand, take the view that the validity 10 July 1975 on the importation free of of that argument requires legislation to give Common Customs Tariff duties of educa- it effect. As matters stand at present, the tional, scientific and cultural materials relevant provision makes it impossible to (Official Journal 1975, L 184, p. 1). That take into account the 'superior regulation was later amended by Council performances' of which an instrument, Regulation No 1027/79 of 8 May 1979 whether it be of Community manufacture or (Official Journal 1979, L 134, p. 1) and imported, is considered capable; that in supplemented by Commission Regulation their view is sufficient to warrant an No 2784/79 of 12 December 1979, which affirmative answer to the Finanzgericht's entered into force on 1 January 1980 question. (Official Journal 1979, L 318, p. 32).
I should say at once that I find the first view According to the third indent of Article 3 preferable. I think that even as matters stand (3) of Regulation No 1798/75 (as it is possible to apply the Community legis- amended), equivalent scientific value is to lation without departing from the letter or be assessed 'by comparing the essen- the spirit of it and at the same time without tial technical characteristics of the conflicting with the requirements of instrument... in respect of which research or the budgets of scientific estab- application is made for the lishments. exemption... with those of the corre- sponding instrument... manufactured in the Community in order to determine whether I shall begin with an obvious point. No one the latter could be used for the same would argue that the mere superiority of the scientific purposes as those for which (the performance offered by an instrument is former) is intended and whether its sufficient to negate its equivalent scientific performance would be comparable'. Article value, even if it is the instrument manu- 5 (2) of Regulation No 2784/79 adds the factured in the Community which is proviso that 'in making the excessively powerful (the Court's judgment comparison . . . only such technical charac- of 25 October 1984 in Case 185/83 teristics as have a decisive influence on the University of Groningen v Inspecteur der outcome of the specific work planned may Invoerrechten en Accijnzen [1984] ECR be regarded as "essential" ' and that no 3623, at paragraph 33, deals with the account is to be taken of the fact that an opposite case). In any event that conclusion instrument is able to 'achieve performances is supported not only by the wording of superior to those which are necessary for a Article 5 (2) but by an unanswerable proper execution of (that) work'. argument a contrario: if the Community
OPINION OF MR MANCINI — CASE 232/86
apparatus were not covered by that adjectives, it seems to me, clearly imply that provision, 'essential' characteristics for the the two instruments must belong to the purposes of the comparison would also same category or analogous categories, that include characteristics not having 'a decisive is to say they must be such that a influence on the outcome' of the research, comparison between their respective charac- with the result that the number of cases of teristics does at least make some sense. instruments which are not of equivalent scientific value would be increased enor- mously.
The principle enunciated in Article 5 (2) must therefore be interpreted in the light of those criteria. In other words, the fact that That is not therefore the point which the the performances offered by one or other of Finanzgericht wishes to have settled. What the instruments may be superior is indeed it is in fact seeking to establish is whether irrelevant, but only in so far as one of the the rule that superior performances are instruments is merely more refined or more irrelevant is limited by the lack of compara- powerful than the other. But where the bility of instruments offering performances greater degree of refinement or power so disproportionate that their use cannot means that the instruments cannot be 'reasonably be considered'. In fact it seems compared or that one cannot be substituted to me that there is such a limit and that this for the other that fact cannot be said to be is borne out by at least two passages in the irrelevant. Where that is the case the very legislation. premises of the determination of equivalent value are lacking; indeed, the two instruments 'are not merely not equivalent but they cannot even be weighed against each other.
T h e first indication is provided by the first recital in the preamble to Regulation N o 1798/75, which states that the regulation is intended to 'facilitate . . . scientific research within the Community. The preference for Community products must therefore be I would add that the reading I am tempered by the interests of science, and it proposing is in keeping with the importance is evident that those interests are not which has always been attached to the properly protected where the refusal to criterion of proportionality in the Court's grant an exemption is based on the existence judgments. Moreover, it is the only interpre- of instruments which no researcher would tation which makes it possible to avoid conceive of using in order to carry out a paradoxical results whose absurdity is made particular project. The other indication is patent by leaving the sometimes bewildering contained in the third indent of Article 3 (3) sphere of legal concepts and drawing on of the regulation, where, as I have said, it is analogies taken from everyday life. For stated that the imported instrument is to be example what is to be made of the argument compared with the 'corresponding that a BMW 735 is 'equivalent' to a horse instrument' manufactured in the Community merely because both make it possible to in order to determine whether its cover the distance from one end of the 'performance would be comparable. Those Kurfürstendamm to the other?
NICOLET INSTRUMENT v HAUPTZOLLAMT BERLIN-PACKHOF
4. In the light of all the considerations I have set out I propose that the Court reply as follows to the question put by the Seventh Senate of the Finanzgericht Berlin by order of 27 June 1986 in the proceedings before that court between Nicolet Instrument GmbH and the Hauptzollamt Berlin-Packhof:
'Regulation No 1798/75 of the Council and Commission Regulation No 2784/79 are to be interpreted as meaning that for the purposes of the assessment referred to in the third indent of Article 3 (3) of Regulation No 1798/75 the mere superiority in performance of an instrument, including an instrument manufactured in the Community, in comparison with the specific work to be carried out, is irrelevant. However, an instrument cannot be regarded as being of equivalent scientific value if it appears on objective examination to be so disproportionate in regard to a specific research project as to rule out any reasonable possibility of its being used for that project.'