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Cite as: [1987] EUECJ R-164/86

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61986J0164
Judgment of the Court (Second Chamber) of 10 December 1987.
Universität Bielefeld v Hauptzollamt Gießen.
Reference for a preliminary ruling: Hessisches Finanzgericht - Germany.
TDC - Exemption for scientific apparatus - Equivalent scientific value.
Case 164/86.
European Court reports 1987 Page 04973

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COMMON CUSTOMS TARIFF - EXEMPTION FROM IMPORT DUTY - SCIENTIFIC INSTRUMENTS AND APPARATUS - EQUIVALENCE OF IMPORTED APPARATUS AND OTHER APPARATUS MANUFACTURED IN THE COMMUNITY - APPRAISAL - CRITERIA
( REGULATION NO 1798/75 OF THE COUNCIL, ART . 3 ( 1 ) AND ( 3 ) )

FOR THE PURPOSE OF ALLOWING THE DUTY-FREE IMPORTATION OF A SCIENTIFIC APPARATUS, THE EQUIVALENCE OF THAT APPARATUS AND SIMILAR APPARATUS MANUFACTURED IN THE COMMUNITY MUST BE APPRAISED BY REFERENCE TO THE SITUATION OBTAINING WHEN THE ORDER FOR THE APPARATUS IS PLACED AND IT IS THEREFORE WRONG TO COMPARE AN EXISTING FOREIGN APPARATUS WITH HYPOTHETICAL VERSIONS OF COMMUNITY APPARATUS . THE COMPETENT AUTHORITIES ARE NEVERTHELESS AT LIBERTY TO VERIFY WHETHER THE COMMUNITY APPARATUS EXISTING WHEN THE ORDER IS PLACED CAN BE ADAPTED TO THE PROPOSED RESEARCH PROJECT WITHIN A PERIOD OF TIME COMPATIBLE WITH THE THIRD INDENT OF ARTICLE 3 ( 3 ) OF REGULATION NO 1798/75

IN CASE 164/86
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HESSISCHES FINANZGERICHT ( FINANCE COURT, HESSE ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
UNIVERSITAET BIELEFELD
AND
HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) GIESSEN,
ON THE VALIDITY OF COMMISSION DECISION 82/288/EEC OF 13 APRIL 1982 ESTABLISHING THAT THE APPARATUS DESCRIBED AS "QUANTA RAY-ND : YAG LABORATORY LASER SYSTEM, MODEL DCR-1A" MAY NOT BE IMPORTED FREE OF COMMON CUSTOMS TARIFF DUTIES ( OFFICIAL JOURNAL 1982, L 131, P . 27 ),
THE COURT ( SECOND CHAMBER )
COMPOSED OF : O . DUE, PRESIDENT OF CHAMBER, K . BAHLMANN AND T . F . O' HIGGINS, JUDGES,
ADVOCATE GENERAL : G . F . MANCINI
REGISTRAR : H . A . ROEHL, PRINCIPAL ADMINISTRATOR
AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF
UNIVERSITAET BIELEFELD, THE PLAINTIFF IN THE MAIN PROCEEDINGS, BY HANS-JOERGEN SIMM (" JUSTITIAR "),
THE COMMISSION OF THE EUROPEAN COMMUNITIES, BY ITS LEGAL ADVISER PETER KALBE,
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 9 JUNE 1987,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 8 OCTOBER 1987,
GIVES THE FOLLOWING
JUDGMENT

1 BY AN ORDER DATED 13 JUNE 1986, WHICH WAS RECEIVED AT THE COURT ON 7 JULY 1986, THE HESSISCHES FINANZGERICHT REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION AS TO THE VALIDITY OF COMMISSION DECISION 82/288 OF 13 APRIL 1982 ESTABLISHING THAT THE APPARATUS DESCRIBED AS "QUANTA RAY-ND : YAG LABORATORY LASER SYSTEM, MODEL DCR-1A" MAY NOT BE IMPORTED FREE OF COMMON CUSTOMS TARIFF DUTIES ( OFFICIAL JOURNAL 1982, L 131, P . 27 ).
2 THE QUESTION WAS RAISED IN AN ACTION BROUGHT BY UNIVERSITAET BIELEFELD ( HEREINAFTER REFERRED TO AS "THE PLAINTIFF ") AGAINST THE REFUSAL BY THE GERMAN CUSTOMS AUTHORITIES TO PERMIT IMPORTATION FREE OF CUSTOMS DUTY IN DECEMBER 1979 OF A LASER SYSTEM FROM THE UNITED STATES OF AMERICA, WHICH THE PLAINTIFF INTENDED TO USE FOR RESEARCH CONCERNING SIMULTANEOUS ELECTRIC PHOTON SCATTERING ON FREE ATOMS, INVOLVING "ATOMIC EXCITATION PROCESSES IN INTENSE PHOTON FIELDS ".
3 ON 31 MARCH 1980 THE DEFENDANT IN THE MAIN PROCEEDINGS, HAUPTZOLLAMT GIESSEN, ISSUED A PROVISIONAL TAX ASSESSMENT ACCEDING TO THE PLAINTIFF' S APPLICATION FOR EXEMPTION . HOWEVER, WITH A VIEW TO VERIFYING THAT DECISION, THE FEDERAL REPUBLIC OF GERMANY REFERRED THE MATTER TO THE COMMISSION PURSUANT TO ARTICLE 7 OF COMMISSION REGULATION NO 2784/79 OF 12 DECEMBER 1979 LAYING DOWN PROVISIONS FOR THE IMPLEMENTATION OF COUNCIL REGULATION ( EEC ) NO 1798/75 ON THE IMPORTATION FREE OF COMMON CUSTOMS TARIFF DUTIES OF EDUCATIONAL, SCIENTIFIC AND CULTURAL MATERIALS ( OFFICIAL JOURNAL 1979, L 318, P . 32 ).
4 UPON COMPLETION OF THE PROCEDURE THUS INITIATED, THE COMMISSION STATED, IN THE CONTESTED DECISION OF 13 APRIL 1982, THAT THE CONDITIONS LAID DOWN IN ARTICLE 3 ( 1 ) ( B ) OF REGULATION NO 1798/75 ( OFFICIAL JOURNAL 1975, L 184, P . 1 ), AS AMENDED BY COUNCIL REGULATION NO 1027/79 OF 8 MAY 1979 ( OFFICIAL JOURNAL 1979, L 134, P . 1 ), WERE NOT FULFILLED, SINCE APPARATUS OF EQUIVALENT SCIENTIFIC VALUE, CAPABLE OF BEING USED FOR THE SAME PURPOSES, WERE "CURRENTLY BEING MANUFACTURED IN THE COMMUNITY ". THE COMMISSION REFERRED IN PARTICULAR TO THE "YG 482" APPARATUS MANUFACTURED BY THE FRENCH COMPANY QUANTEL AND THE "HY SERIES" APPARATUS MANUFACTURED BY THE UNITED KINGDOM COMPANY J . K . LASERS LTD .
5 ON 27 MAY 1982, THE HAUPTZOLLAMT GIESSEN SERVED AN AMENDED TAX ASSESSMENT REQUIRING THE PAYMENT OF A TOTAL AMOUNT OF DM 12 664.10 IN RESPECT OF COMMUNITY CUSTOMS DUTIES AND IMPORT TURNOVER TAX .
6 IN THE PROCEEDINGS BEFORE THE NATIONAL COURT, THE PLAINTIFF CLAIMED THAT THE COMMISSION' S DECISION WAS WITHOUT FOUNDATION . THE IMPORTED APPARATUS WAS NOT THE "DCR-1A" FROM THE COMPANY QUANTA RAY BUT THE "DCR-1AA 1320" MODEL, WHICH HAS A CONSIDERABLY SUPERIOR PERFORMANCE . NEITHER THE "YG 482" APPARATUS NOR THE "HY SERIES" APPARATUS WAS EQUIVALENT TO THE IMPORTED APPARATUS, PARTICULARLY AS REGARDS THE CREST VALUES WHICH WERE REQUIRED FOR THE RESEARCH PROJECT .
7 IN THOSE CIRCUMSTANCES, THE NATIONAL COURT REFERRED THE FOLLOWING QUESTION TO THE COURT OF JUSTICE :
"IS COMMISSION DECISION 82/288/EEC OF 13 APRIL 1982 CONCERNING THE 'QUANTA RAY ND : YAG LABORATORY LASER SYSTEM, MODEL DCR-1A' APPARATUS INVALID IN VIEW OF THE FACT THAT ALTHOUGH APPARATUS OF THAT KIND WERE, AS THE COMMISSION STATES, MANUFACTURED IN THE COMMUNITY, THEIR PERFORMANCE WAS INFERIOR TO THAT OF THE IMPORTED APPARATUS DESIGNATED DCR-1AA 1320, REGARD BEING HAD IN PARTICULAR TO THE SPECIAL PURPOSE THAT WAS CONTEMPLATED?"
8 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS AND THE ADMINISTRATIVE PROCEDURE, THE RELEVANT COMMUNITY PROVISIONS AND THE OBSERVATIONS SUBMITTED TO THE COURT, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
9 IN ITS OBSERVATIONS TO THE COURT, THE COMMISSION STATES THAT THE STANDARD VERSIONS OF THE QUANTA RAY, QUANTEL AND J . K . LASERS APPARATUS WERE CAPABLE OF COMPARABLE PERFORMANCES . IN SO FAR AS THOSE VERSIONS DID NOT MEET THE PLAINTIFF' S REQUIREMENTS, IT WAS NECESSARY TO ESTABLISH WHETHER NOT ONLY THE FOREIGN APPARATUS BUT ALSO THE COMMUNITY APPARATUS EXISTING WHEN THE ORDER WAS PLACED COULD HAVE BEEN ADAPTED FOR THE PURPOSES OF THE RESEARCH PROJECT IN QUESTION WITHIN THE TIME-LIMITS LAID DOWN IN THE THIRD INDENT OF ARTICLE 3 ( 3 ) OF REGULATION NO 1798/75 . IN THE COMMISSION' S VIEW, THAT APPROACH IS NOT CONTRARY TO THE JUDGMENT OF 27 MARCH 1985 IN CASE 4/84 JOHANN-WOLFGANG-GOETHE-UNIVERSITAET (( 1985 )) ECR 991, IN WHICH THE COURT CONSIDERED THAT IT WAS INCORRECT TO COMPARE AN EXISTING FOREIGN APPARATUS WITH HYPOTHETICAL VERSIONS OF COMMUNITY APPARATUS .
10 THAT ASPECT OF THE COMMISSION' S VIEW MUST BE UPHELD . HOWEVER, IT DOES NOT APPEAR THAT THE COMMISSION TOOK THAT APPROACH WHEN ADOPTING THE CONTESTED DECISION . ALTHOUGH IT CONFIRMED, IN REPLY TO A QUESTION PUT BY THE COURT, THAT IT WAS AWARE AT THE MATERIAL TIME THAT THE APPLICATION FOR EXEMPTION RELATED TO A SPECIAL VERSION OF THE FOREIGN APPARATUS, THAT FACT IS NOT MENTIONED IN THE STATEMENT OF THE REASONS FOR THE DECISION WHICH WAS APPARENTLY BASED ONLY ON COMPARISON OF THE STANDARD VERSIONS OF THE THREE APPARATUS IN QUESTION .
11 MOREOVER, THE LETTERS FROM THE COMMUNITY MANUFACTURERS, QUANTEL AND J . K . LASER, WHICH THE FRENCH AND UNITED KINGDOM AUTHORITIES FORWARDED TO THE COMMISSION FOR THE PURPOSES OF THAT COMPARISON, DO NOT MAKE ANY MENTION OF ANY POSSIBILITY OF ADAPTING THE NORMAL MODELS OF THE COMMUNITY APPARATUS FOR THE RESEARCH PROJECT IN QUESTION, BUT MERELY STATE, IN GENERAL TERMS, THAT THE PERFORMANCES OF THE APPARATUS CONCERNED ARE SIMILAR .
12 SINCE THE COMMISSION HAS NOT DENIED BEFORE THE COURT THAT THE IMPORTED APPARATUS CAN ACHIEVE HIGHER CREST VALUES THAN THE NORMAL VERSIONS OF THE COMMUNITY APPARATUS AND THAT THOSE VALUES WERE NECESSARY FOR THE RESEARCH PROJECT IN QUESTION, IT MUST BE CONCLUDED THAT THE CONTESTED DECISION IS VITIATED BY MANIFEST ERRORS OF FACT AND IS THEREFORE INVALID .
13 THE REPLY TO THE QUESTION SUBMITTED BY THE HESSISCHES FINANZGERICHT MUST THEREFORE BE THAT COMMISSION DECISION 82/288/EEC OF 13 APRIL 1982 ESTABLISHING THAT THE APPARATUS DESCRIBED AS "QUANTA RAY-ND : YAG LABORATORY LASER SYSTEM, MODEL DCR-1A" MAY NOT BE IMPORTED FREE OF COMMON CUSTOMS TARIFF DUTIES IS INVALID .

COSTS
14 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . SINCE THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER ),
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE HESSISCHES FINANZGERICHT, BY ORDER OF 13 JUNE 1986,
HEREBY RULES :
COMMISSION DECISION 82/288/EEC OF 13 APRIL 1982 ESTABLISHING THAT THE APPARATUS DESCRIBED AS "QUANTA RAY-ND : YAG LABORATORY SYSTEM, MODEL DCR-1A" MAY NOT BE IMPORTED FREE OF COMMON CUSTOMS TARIFF DUTIES IS INVALID .