C-303/87

OPINION OF MR DARMON — CASE 303/87

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 11 January 1989"'

Mr President, ratuses concerned are equivalent], the Court Members of the Court, cannot, save in the event of manifest error of fact or law or misuse of power, find fault with the contents of a decision which the Commission had adopted in conformity 1. The Finanzgericht Baden-Württemberg 2 with the committee's opinion ' ". has submitted a question concerning the validity of the Commission decision of 1 March 1985, as published in abbreviated form in the Official Journal of the European In the present case, it is apparent from the Communities, 1 which withheld exemption documents before the Court that the from customs duties for a simultaneous Commission decision is in conformity with spectrometer known as the 'Jarrel-Ash- the opinion of the Committee on Duty-Free Plasma-Atomcomp Direct Reading Spec­ Arrangements. trometer System (Model 1125 A)' imported from the United States by the University of Stuttgart; exemption was refused on the 4. The national court states in its order for ground that equivalent apparatuses existed reference that the expert appointed by it in the Community, in particular the 'PV concluded that the Community apparatuses 8210/PV 8490' manufactured by Philips were equivalent to the imported apparatus, (Belgium) and the 'JY 48' and the subject to two reservations: 'JY 70 P' manufactured by Jobin Yvon (France).

(i) the Community apparatus cannot detect potassium on the basis of the 766.4 nm 2. The plaintiff in the main proceedings band; makes two complaints: first, it alleges that the statement of the reasons on which the decision is based is inadequate and, secondly, it contends that the Community (ii) the French apparatus cannot detect apparatuses are not equivalent to the lithium or sodium. imported apparatus.

6. For my part, I note — as the represen­ tative of the Belgian Government 9. It seems to me that the allegation that emphasized at the hearing — that in fact the the statement of the grounds for the expert expressed reservations only about the decision is inadequate must also be rejected JY 70 P apparatus, indicating that the without much ado. question of its equivalence with the imported apparatus depended on whether another network could be delivered at the time of importation. The expert's report ordered by the national court does not place 10. The decision, as published in simplified any limitations on the equivalence of the form, 3refers to the 'existence of production Philips apparatus since it states (on p. 5) of other apparatus of equivalent scientific that the manufacturer's reply 'in that respect value in the Community at date of order' [that is to say with respect to the possibility and then gives the names of the Philips of adapting the apparatus] is correct and apparatus and the Jobin Yvon apparatus, clear'. The Commission and the Belgian together with the manufacturers' addresses. Government maintain in that connection The decision addressed to the Federal that with the help of the 'PV 8291/00' Republic of Germany gives no further accessory the Philips apparatus can measure details in that respect, even though it is potassium on the 766.4 nm wavelength. As drafted in a less laconic fashion. regards the French JY 70 P apparatus, the Commission, when questioned on that point at the hearing, stated that it was capable, at the time when the American apparatus was ordered, of detecting the three elements 11. Admittedly, the Commission's statement potassium, lithium and sodium using an of reasons is particularly 'compact'. But I additional item of equipment. would point out that in its judgment in University of Groningen 4 the Court held that a similarly succinct statement of reasons fulfilled the minimum requirements laid 7. In the absence of the University of down by Article 190 of the Treaty, in so far Stuttgart, the Court examined the matter in as the decision, which was addressed to the great detail at the hearing. In my opinion, Member States that took part in the nothing emerged to call in question the meetings of the group of experts and were clarifications furnished by the Commission. therefore sufficiently familiar with the In any event, I did not note anything which details of the case to assess its scope, might be indicative of a manifest error of contained the 'indispensable elements which appraisal or misuse of powers. permit the scientific establishment concerned to establish whether the decision is vitiated by a manifest error or by misuse of power'. 8. For the sake of completeness, it must be stated that if we assume — as the expert 3 — In accordance with Article 7(6) of Commission Regulation did — that the JY 48 I CP apparatus could No 2290/83 of 29 July 1983 (OJ L 220. 11 8 1983. p 20) not be considered for the intended task, the 4 — Supra, al paragraph 39, sec also the judgment of 26 June 1986 in Case 203/85 Nicolet Instrument v Hauptzollamt decision is not thereby rendered invalid Frankfurt am Mam-Flughafen [1986] ECR 2049. since the conclusion that the other two paragraph 11

16. I therefore propose that the Court hold that consideration of Decision 85 / C 57 / 03 of 1 March 1985 has disclosed no factor of such a kind as to affect its validity.

5 — Commission Regulation of 12 December 1979 (OJ L 318, 13.12.1979, p. 32), repealed and replaced by Regulation No 2290/83, cited in footnote 3.