C-43/87

Mr President, comments made by Nicolet in relation t o Members of the Court, Decision C(85) 1661/2 are formulated like submissions in a direct action. Nicolet alleges that the measure: (a) is retroactive in effect; (b) infringes essential procedural 1. In proceedings brought by Nicolet requirements; (c) does not contain an Instrument GmbH ('Nicolet') against the adequate statement of the reasons on which Hauptzollamt (Principal Customs Office) it is based; and (d) is manifestly incorrect Frankfurt am Main-Airport, the Seventh on matters of fact and law. Senate of the Hessische Finanzgericht (Finance Court, Hesse) has requested a preliminary ruling on the validity of Decision C(85) 1661/2 of 18 October 1985 In its first submission, Nicolet laments the in which the Commission of the European fact that the Commission should have given Communities determined that the apparatus in 1985 a decision on an import which took 'Nicolet Data Acquisition and Processing place five years earlier: it has thus adopted a System, model NIC-1180' may not be measure which, having retroactive effect, is imported free of Common Customs Tariff unlawful. That allegation is unfounded. T h e duties. reason for the long delay between the import and the disputed measure is attrib- utable to one specific cause and one only: the fresh examination which the That decision followed the Commission's Commission was required to carry out as a re-examination of that import in compliance result of the judgment of 7 March 1985. with the judgment of 7 March 1985 (Case 30/84 Nicolet [1985] ECR 771) in which the Court declared invalid the decision adopted by the Commission on 7 July 1980 The second submission is based on two in respect of the same computer. The Court arguments: infringement of Nicolet's right stated that the Commission had not to be heard and the secrecy of the examined 'the objective technical charac- procedure conducted by the Commission. In teristics of the apparatus in particular, it is claimed, the latter defect question . . . merely applied . . . general made it impossible to assess the extent to considerations applicable to all computers' which the experts consulted were qualified. (paragraph 15). The decision was also criticized for relying on an ancillary criterion, namely reference to the general uses in the Community of apparatus of the Both those arguments must be rejected. T h e same type' (paragraph 17). procedure followed by the Commission is governed by Regulation No 2290/83 of 29 July 1983 (Official Journal 1983, L 220, p. 20), the rules of which, as far as is relevant 2. Although the dispute is the subject of a here, are substantially the same as those laid reference for a preliminary ruling, the down in Regulation No 2784/79 (Official

Journal 1983, L 220, p. 20). When inter- consistently held that the review which it is preting the latter, the Court declared that entitled to carry out is limited to instances they provided neither for the participation of manifest error of fact or of law and of of the applicant for exemption in the exam- misuse of powers (most recently in its ination carried out by the Committee on judgment of 21 January 1987 in Case 13/84 Duty-Free Arrangements nor for any right Control Data Belgium v Commission [1987] to be heard before the Commission adopted ECR 275, paragraph 12). its decision (judgments of 25 October 1984 in Case 185/83 University of Groningen v Inspecteur der Invoerrechten en Accijnzen [1984] ECR 3623, paragraphs 20 and 2 1 ; and of 25 June 1986 in Case 283/85 Nkolet [1986] ECR 2049, paragraphs 14 and 15). In those respects, Decision C (85) 1661/2 does not display any defects liable to render it invalid. By contrast with the first decision, it does not deny in abstracto that computers are scientific in character but gives an 3. The other two submissions can be exhaustive exposition of the reasons (such as considered together. Nicolet states that the the absence of a high level of precision, reasons for which the Court declared invalid possession of structural characteristics the decision of 7 July 1980 apply also to be common to other apparatus and the present measure. Just as it did five years language used) for which the NIC-1180 earlier, the Commission confines itself to model is not 'mainly or exclusively suited to putting forward general considerations and scientific activities' (Article 3 (3) of Regu- does not mention any factor which lation N o 1798/75, Official Journal 1975, convincingly contradicts the expert's reports L 184, p. 1). From the statement of reasons produced in 1982 by Professor Bernhard it is also apparent that in carrying out their Schrader. The latter — we are investigation the Commission experts reminded — had stated that the examined — and treated as an integral part performances of which the apparatus was of the application for exemption — the capable were of too high a level to be used reports produced by Professor Schrader in for industrial and commercial purposes; it Case 30/84. was therefore specially suited to scientific research.

investigation is above all concerned with the particularly close examination which the 'scientific character'of the imported Commission was required to undertake in apparatus; and it is only if that characteristic compliance with the judgment of 7 March is found to be present that the Commission 1985. In other words, the Commission must verify whether comparable apparatuses concentrated on assessing the utilization produced within the Community are characteristics of the computer also by available on the market. However, the reference to similar apparatus in order to NIC-1180 model was not found to be verify whether it was intended to be used scientific in character and it was not for purposes not exclusively scientific. therefore necessary to make assessments of equivalence. In conclusion, Nicolet has not shown the Apart from what the agent of the existence of any manifest error of fact or of Commission told us at the hearing, the law in the Commission's assessment and has reference to apparatus 'of the same type' in not proved that its investigation was vitiated the decision seems rather indicative of a by misuse of powers.

4. In view of all the foregoing consideration I propose that the Court should reply as follows to the question submitted to it by the Seventh Senate of the Hessische Finanzgericht by order of 21 January 1987 in the proceedings pending before that court between Nicolet Instrument GmbH and Hauptzollamt Frankfurt am Main- Airport:

'Consideration of the question has disclosed no factor of such a kind as to affect the validity of Commission Decision C (85) 1661/2 of 18 October 1985.'