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Cite as: [1984] EUECJ R-45/83

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61983J0045
Judgment of the Court (Second Chamber) of 26 January 1984.
Ludwig-Maximilians-Universität München v Hauptzollamt München-West.
Reference for a preliminary ruling: Finanzgericht München - Germany.
Common Customs Tariff - Exemption for scientific apparatus - Glass flasks.
Case 45/83.
European Court reports 1984 Page 00267

COMMON CUSTOMS TARIFF - IMPORTATION FREE OF CUSTOMS DUTIES - SCIENTIFIC INSTRUMENTS AND APPARATUS - CONCEPT - DEFINITION - CRITERIA - RECEPTACLES INTENDED FOR THE PRESERVATION OR CULTIVATION OF THE MATTER ON WHICH RESEARCH IS CONDUCTED - EXCLUSION
( REGULATION NO 1798/75 OF THE COUNCIL , ART . 3 ( 1 ))

THE EXEMPTION FROM CUSTOMS DUTY PROVIDED FOR IN ARTICLE 3 ( 1 ) OF REGULATION NO 1798/75 FOR SCIENTIFIC INSTRUMENTS AND APPARATUS 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 . 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 .

A FORTIORI , RECEPTACLES WHICH ARE USED ONLY TO PRESERVE , STORE OR CULTIVATE A SUBSTANCE ON WHICH RESEARCH IS CARRIED OUT CANNOT BE DESCRIBED AS SCIENTIFIC INSTRUMENTS OR APPARATUS .

IN CASE 45/83
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT MUNCHEN ( FINANCE COURT , MUNICH ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
LUDWIG-MAXIMILIANS-UNIVERSITAT MUNCHEN ( LUDWIG-MAXIMILIAN UNIVERSITY OF MUNICH )
AND
HAUPTZOLLAMT MUNCHEN-WEST ( PRINCIPAL CUSTOMS OFFICE , WEST MUNICH )

ON THE INTERPRETATION OF REGULATION NO 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 ),

1 BY AN ORDER OF 8 MARCH 1983 WHICH WAS RECEIVED AT THE COURT ON 24 MARCH 1983 , THE FINANZGERICHT MUNCHEN ( FINANCE COURT MUNICH ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 3 OF REGULATION NO 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 ), ADOPTED IN ORDER TO IMPLEMENT THE FLORENCE AGREEMENT ( UNITED NATIONS TREATY SERIES VOL . 131 , 1952 , NO 1734 , PP . 26 ET SEQ .).

2 THE QUESTION AROSE IN AN ACTION BROUGHT BEFORE THE NATIONAL COURT BY LUDWIG-MAXIMILIANS-UNIVERSITAT MUNCHEN ( LUDWIG-MAXIMILIAN UNIVERSITY OF MUNICH ) FOR THE ANNULMENT OF THE DECISION OF THE HAUPTZOLLAMT MUNCHEN-WEST ( PRINCIPAL CUSTOMS OFFICE , WEST MUNICH ) REFUSING TO GRANT AN EXEMPTION FROM CUSTOMS DUTIES ON THE IMPORTATION OF GLASS FLASKS , DESIGNED FOR THE PRESERVATION AND CULTIVATION OF TISSUE CULTURES OF HUMAN CANCER CELLS IN STERILE CONDITIONS , ON THE GROUND THAT THEY WERE NOT SCIENTIFIC INSTRUMENTS OR APPARATUS WITHIN THE MEANING OF THE ABOVE-MENTIONED REGULATION .

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 ( ' ' GERATE ' ' ) WITHIN THE MEANING OF THE REGULATION .

5 THE HAUPTZOLLAMT , ON THE OTHER HAND , CONTENDED THAT THE FLASKS WERE NOT INSTRUMENTS , ON THE GROUND THAT AN INSTRUMENT IN SOME WAY ACTIVELY AFFECTS THE ARTICLE OR MATERIAL TO BE TREATED WHEREAS THE GLASS FLASKS SERVE IN A MERELY PASSIVE MANNER , NOR WERE THEY UTENSILS , BUT WERE INSTEAD EQUIPMENT .

6 CONSEQUENTLY , THE FINANZGERICHT MUNCHEN REFERRED TO THE COURT THE FOLLOWING QUESTION :
' ' HOW IS THE FIRST SENTENCE OF ARTICLE 3 ( 1 ) OF REGULATION ( EEC ) NO 1798/75 OF 10 JULY 1975 ( IN ITS ORIGINAL VERSION ) TO BE INTERPRETED AS REGARDS THE TERMS ' INSTRUMENTS ' AND ' APPARATUS ' ? DO THEY INCLUDE GOODS OF EVERY KIND OR ONLY THOSE ARTICLES HAVING A MECHANISM OR OTHER DEVICES BY MEANS OF WHICH A MATERIAL MAY BE WORKED ON , PROCESSED OR OTHERWISE TREATED , OR WHEREBY GIVEN PHYSICAL OR CHEMICAL CONDITIONS OR PHENOMENA ( FOR EXAMPLE , TEMPERATURE OR VACUUM ) MAY BE EITHER PRODUCED AND CONTROLLED OR PERCEIVED AND MEASURED? WHAT OTHER CRITERIA , IF ANY , SERVE TO DEFINE SUCH TERMS?
' '
7 IT IS CLEAR FROM THE PAPERS BEFORE THE COURT THAT THIS QUESTION ASKS IN SUBSTANCE WHETHER THE TERMS ' ' INSTRUMENTS ' ' AND ' ' APPARATUS ' ' IN THE FIRST SENTENCE OF ARTICLE 3 ( 1 ) OF REGULATION NO 1798/75 MUST BE INTERPRETED AS INCLUDING MATERIALS SUCH AS RECEPTACLES INTENDED FOR THE PRESERVATION , STORAGE OR CULTIVATION OF A SUBSTANCE ON WHICH RESEARCH IS CARRIED OUT AND WHICH PLAYS A MERELY PASSIVE ROLE IN THE SCIENTIFIC RESEARCH PROCESS .

8 FIRST , IT SHOULD BE STATED THAT NEITHER THE FLORENCE AGREEMENT NOR REGULATIONS 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 UTRECHT V INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN , ( 1978 ) ECR 189 ).

10 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 .

11 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 .

12 A FORTIORI , RECEPTACLES WHICH ARE USED ONLY TO PRESERVE AND STORE A SUBSTANCE ON WHICH RESEARCH IS CARRIED OUT CANNOT BE DESCRIBED AS SCIENTIFIC INSTRUMENTS OR APPARATUS . EVEN THE FACT THAT THEY ARE SUITABLE FOR THE PRESERVATION AND CULTIVATION OF TISSUE IN A STERILE MEDIUM CANNOT CONFER UPON THEM THE CHARACTER OF SCIENTIFIC INSTRUMENTS OR APPARATUS ; THAT CIRCUMSTANCE DOES NOT ALTER THE ESSENTIAL CHARACTERISTIC OF A RECEPTABLE , THAT IS TO SAY THE FACT THAT ITS USE IS PASSIVE .

13 AS REGARDS THE FACT THAT THE GERMAN VERSION OF ARTICLE 3 ( 1 ) OF REGULATION NO 1798/75 CONTAINS NOT ONLY THE WORDS ' ' INSTRUMENTS ' ' AND ' ' APPARATUS ' ' BUT ALSO THE WORD ' ' GERATE ' ' ( UTENSILS ), IT SHOULD BE NOTED THAT THAT CANNOT CONFER UPON THAT LINGUISTIC VERSION A WIDER MEANING THAT THAT IMPLIED BY THE OTHER VERSIONS WHICH DO NOT CONTAIN THAT WORD . THEREFORE NO SPECIAL SIGNIFICANCE SHOULD BE ATTRIBUTED TO THE WORD ' ' GERATE ' ' IN THE GERMAN TEXT .

14 THE ANSWER TO THE QUESTION ASKED BY THE FINANZGERICHT MUNCHEN SHOULD THEREFORE BE THAT 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 FOR THE PRESERVATION , STORAGE OR CULTIVATION OF A SUBSTANCE ON WHICH RESEARCH IS CARRIED OUT AND WHICH PLAY ONLY A PASSIVE ROLE IN THE SCIENTIFIC RESEARCH PROCESS .

COSTS
15 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 ,
THE COURT ( SECOND CHAMBER ),
IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE FINANZGERICHT MUNCHEN 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 FOR THE PRESERVATION , STORAGE OR CULTIVATION OF A SUBSTANCE ON WHICH RESEARCH IS CARRIED OUT AND WHICH PLAY ONLY A PASSIVE ROLE IN THE SCIENTIFIC RESEARCH PROCESS .