Avis juridique important

Judgment of the Court of 21 November 1991. - Technische Universität München v Hauptzollamt München-Mitte. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Common Customs Tariff - Exemption for scientific instruments - Equivalent scientific value. - Case C-269/90. European Court reports 1991 Page I-05469 Swedish special edition Page I-00453 Finnish special edition Page I-00485

Summary Parties Grounds Decision on costs Operative part

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Common Customs Tariff - Exemption from import duties - Scientific instruments and apparatus - Commission decision - Power of appraisal subject to procedural guarantees for persons applying for an exemption - Review by the Court - Procedural guarantees not respected - Illegality

(Regulation (EEC) No 1798/75 of the Council; Commission Regulation No 2784/79, Art. 7; Commission Decision 83/348)

The decision which the Commission is required to adopt at the end of the procedure laid down in Article 7 of Regulation No 2784/79 implementing Regulation No 1798/75 on the importation free of Common Customs Tariff duties of educational, scientific and cultural materials entails complex technical evaluations. In order to be able to fulfil its tasks, the Commission must have a power of appraisal which makes respect for the rights guaranteed by the Community legal order in administrative procedures of fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case and the right of the person concerned to make his views known and to have an adequately reasoned decision. Only in this way can the Court verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present.

Decision 83/348 must be declared invalid because it was adopted without regard to the above principles which, in the instant case, would have required the group of experts, whose opinion the Commission followed, to have been appropriately composed, the applicant for exemption to have been given an opportunity to make its views known on the relevant circumstances and, where necessary, on the documents taken into account by the Commission and the statement of reasons for the decision finally adopted not to have merely reproduced the reasoning for a previous decision.

In Case C-269/90,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof (Federal Finance Court) for a preliminary ruling in the proceedings pending before that court between

Hauptzollamt Muenchen-Mitte

and

Technische Universitaet Muenchen

on the validity of Commission Decision 83/348/EEC of 5 July 1983 establishing that the apparatus described as "Jeol-Scanning Electron Microscope, model JSM-35 C" may not be imported free of Common Customs Tariff duties (Official Journal 1983 L 188, p. 22),

THE COURT,

composed of: O. Due, President, Sir Gordon Slynn, R. Joliet, F.A. Schockweiler and F. Grévisse (Presidents of Chambers), G.F. Mancini, C.N. Kakouris, J.C. Moitinho de Almeida, G.C. Rodríguez Iglesias, M. Díez de Velasco and M. Zuleeg, Judges,

Advocate General: F.G. Jacobs,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Technische Universitaet Muenchen, by Mr Wachinger, Leitender Regierungsdirektor,

- Commission of the European Communities, by J. Sack, Legal Adviser, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of the Commission at the hearing on 11 June 1991,

after hearing the Opinion of the Advocate General at the sitting on 11 July 1991,

gives the following

Judgment

2 The question was raised in the course of proceedings between the Technische Universitaet Muenchen and the Hauptzollamt Muenchen-Mitte.

3 The proceedings concern the grant of customs exemption, for a scientific instrument imported into the Community, under Article 3(1)(b) of Council Regulation (EEC) No 1798/75 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), as amended by Council Regulation (EEC) No 1027/79 of 8 May 1979 (Official Journal 1979 L 134, p. 1) in force since 1 January 1980.

4 Between 1 June 1979 and 23 March 1981 the Technische Universitaet Muenchen brought into free circulation a scanning electron microscope, model JSM-35 C, manufactured by Japan Elektron Optics Laboratory Ltd of Tokyo. The instrument was intended to be used in research work in its chemistry, biology and geology departments. It was to be used in investigating electro-chemical processes, geological, mineralogical and food chemistry problems, and research into plastics, photochemical emulsions and biological systems.

5 The Hauptzollamt initially admitted it free of customs duty. However, by notices of 14 and 15 April and 22 June 1982 it then demanded customs duties of DM 31 110 plus import turnover tax of DM 3 746.

6 Following the objection procedure commenced by the Technische Universitaet, the Hauptzollamt requested the intervention of the Commission pursuant to Article 7(2) of Commission Regulation (EEC) No 2784/79 of 12 December 1979 laying down provisions for the implementation of Council Regulation (EEC) No 1798/75 (Official Journal 1979 L 318, p. 32).

7 On 5 July 1983, the Commission adopted Decision 83/348, referred to above, according to which the electron microscope in question could not be imported free of Common Customs Tariff duties because apparatus of equivalent scientific value, capable of being used for the same purposes, was being manufactured in the Community, in particular, the PSEM 500 X instrument produced by Philips Nederland BV.

8 Following this decision by the Commission, the Hauptzollamt rejected the application for duty-free admission. The Technische Universitaet then began an action.

9 The Bundesfinanzhof, to which the case came at last instance, considers that it raises a question of the validity of Commission Decision 83/348, cited above. In its view, the Court of Justice has always held that it has only a limited power of review in relation to disputes concerning the duty-free importation of scientific apparatus. According to its case-law, given the technical nature of the questions which arise, the Court may only declare a decision of the Commission invalid where there has been a manifest error of appraisal or a misuse of power. The Bundesfinanzhof doubts whether that view can be maintained.

10 The Bundesfinanzhof considers that the fact-finding and the application of the legal criteria governing the grant of duty-free admission cannot escape judicial review. That requirement for legal protection is not affected by the fact that the comparative examination of the equivalence of scientific apparatus carried out by the competent customs authorities is mainly technical.

11 The Bundesfinanzhof therefore asks the Court whether Commission Decision 83/348 is valid.

12 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written and oral observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

15 The Court must therefore examine whether the disputed decision was adopted in accordance with the principles mentioned above.

17 According to the first recital of the preamble to Regulation No 1798/75, it is necessary to allow, by all possible means, the admission free of Common Customs Tariff duties of educational, scientific and cultural materials in order to facilitate the free exchange of ideas as well as the exercise of cultural activities and scientific research within the Community.

19 The grant of customs exemption for scientific apparatus imported into the Community can therefore only be refused, on the grounds that apparatus of equivalent scientific value exists in the Community, if the investigation carried out by the authorities responsible for applying Regulation No 1798/75 has established that fact for certain.

21 The Commission has admitted that it has always followed the opinions of the group of experts because it has no other sources of information concerning the apparatus being considered.

27 In the instant case, it must be stated that the Commission' s decision does not contain a sufficient statement of the scientific reasons capable of justifying the conclusion that the instrument manufactured in the Community is equivalent to the imported instrument. The disputed decision merely reproduces the wording of one of the Commission' s previous decisions, Decision 82/86/EEC of 23 December 1981 (Official Journal 1982 L 41, p. 33). It is therefore impossible for the person concerned to ascertain whether the decision is vitiated by an error of appraisal. The decision does not therefore satisfy the requirements laid down by Article 190 of the Treaty.

28 It follows from all the considerations set out above that the decision in question was adopted pursuant to an administrative procedure in which the obligation of the competent institution to examine carefully and impartially all the relevant aspects of the individual case before it, the right to be heard and the obligation to provide an adequate statement of reasons for the decision subsequently adopted were infringed.

Costs

On those grounds,

THE COURT,

in answer to the question submitted to it by the Bundesfinanzhof, by order of 17 July 1990, hereby rules:

Commission Decision 83/348/EEC of 5 July 1983 establishing that the apparatus described as "Jeol-Scanning Electron Microscope, model JSM-35 C" may not be imported free of Common Customs Tariff duties is invalid.