Avis juridique important

Judgment of the Court (First Chamber) of 2 February 1978. - Universiteitskliniek, Utrecht, v Inspecteur der Invoerrechten en Accijnzen, Utrecht. - Reference for a preliminary ruling: Tariefcommissie - Netherlands. - Scientific apparatus. - Case 72/77. European Court reports 1978 Page 00189 Greek special edition Page 00073 Portuguese special edition Page 00073

Summary Parties Subject of the case Grounds Decision on costs Operative part

COMMON CUSTOMS TARIFF - IMPORTATION FREE OF CUSTOMS DUTIES - SCIENTIFIC INSTRUMENT OR APPARATUS - DEFINITION - CRITERIA

( REGULATION NO 1798/75 OF THE COUNCIL , ARTICLE 3 )

THE WORDS ' SCIENTIFIC INSTRUMENT OR APPARATUS ' APPEARING IN ARTICLE 3 ( 1 ) OF REGULATION NO 1798/75 REFER TO AN INSTRUMENT OR APPARATUS POSSESSING OBJECTIVE CHARACTERISTICS WHICH MAKE IT PARTICULARLY SUITABLE FOR PURE SCIENTIFIC RESEARCH .

SINCE SUCH A PURPOSE MUST BE ASSESSED OBJECTIVELY , ON THE BASIS ONLY OF THOSE CHARACTERISTICS , THE FACT THAT THE INSTRUMENT OR APPARATUS IS USED , IN INDUSTRY OR ELSEWHERE , FOR COMMERCIAL PURPOSES DOES NOT OF ITSELF NECESSARILY EXCLUDE ITS BEING OF A SCIENTIFIC NATURE WITHIN THE MEANING OF REGULATION NO 1798/75 , AND HENCE ITS RIGHT TO EXEMPTION FROM CUSTOMS DUTIES UNDER THAT REGULATION , PROVIDED THAT THE OTHER REQUIREMENTS LAID DOWN FOR THOSE PURPOSES ARE ALSO SATISFIED .

IN CASE 72/77

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TARIEFCOMMISSIE ( FIRST CHAMBER ), AMSTERDAM , FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

UNIVERSITEITSKLINIEK , UTRECHT ,

AND

INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN , UTRECHT ,

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 ( OJ 1975 , L 184 ) AND OF IMPLEMENTING REGULATION NO 3195/75 OF THE COMMISSION OF 2 DECEMBER 1975 ( OJ 1975 , L 316 ),

1BY AN ORDER OF 2 MAY 1977 , WHICH WAS RECEIVED AT THE COURT ON 13 JUNE 1977 , THE TARIEFCOMMISSIE REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY QUESTIONS ON THE INTERPRETATION OF CERTAIN PROVISIONS 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 ( OJ 1975 , L 184 , P . 1 ) AND OF IMPLEMENTING REGULATION NO 3195/75 OF THE COMMISSION OF 2 DECEMBER 1975 ( OJ 1975 , L 316 , P . 17 ).

2THOSE QUESTIONS HAVE BEEN REFERRED IN THE CONTEXT OF A DISPUTE BETWEEN THE UNIVERSITEITSKLINIEK VOOR HART- EN VAATCHIRURGIE , UTRECHT , AND THE NETHERLANDS TAX AUTHORITIES OVER THE IMPORTATION INTO THE NETHERLANDS OF AN ACTA M VI ULTRAVIOLET SPECTROPHOTOMETER .

3THE IMPORTER APPLIED FOR EXEMPTION FROM IMPORT DUTIES ON THE GROUND THAT THE APPARATUS IN QUESTION WAS INTENDED FOR PURE SCIENTIFIC RESEARCH AND WAS NOT CAPABLE OF GENERAL USE , BUT THE TAX AUTHORITIES DISMISSED THAT APPLICATION , STATING THAT THE INSTRUMENT IN QUESTION CAN ALSO BE USED IN INDUSTRY AND IN LABORATORIES FOR PURPOSES OF QUALITY CONTROL AND THEREFORE , BECAUSE IT CAN BE USED IN SUCH WAYS , CANNOT BE REGARDED AS A SCIENTIFIC APPARATUS WITHIN THE MEANING OF THE PROVISIONS ON EXEMPTION FROM CUSTOMS DUTIES .

4IN ITS FIRST QUESTION THE TARIEFCOMMISSIE ASKS THE COURT TO STATE WHETHER THE PROVISIONS IN ARTICLE 3 OF REGULATION NO 1798/75 ARE SOLELY BASED ON A SUBJECTIVE CRITERION IN RESPECT OF THE SCIENTIFIC USE OF SCIENTIFIC APPARATUS .

5IF THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE , THE SAID COURT ASKS WHETHER THE MERE FACT THAT THE APPARATUS IS USED IN INDUSTRY OR ELSEWHERE FOR COMMERCIAL PURPOSES EXCLUDES A RIGHT TO EXEMPTION FROM CUSTOMS DUTIES .

6IF THIS SECOND QUESTION IS ANSWERED IN THE NEGATIVE , IT IS FINALLY ASKED WHETHER THERE EXIST DIFFERENT CRITERIA IN REGULATION NO 1798/75 OF THE COUNCIL AND IMPLEMENTING REGULATION NO 3195/75 OF THE COMMISSION ON THE BASIS OF WHICH THE RIGHT TO EXEMPTION FROM CUSTOMS DUTIES SHOULD BE EXAMINED .

7THESE QUESTIONS SHOULD BE EXAMINED TOGETHER .

8AS STATED IN THE FIRST RECITAL IN THE PREAMBLE TO REGULATION NO 1798/75 , THAT REGULATION IS INTENDED TO ' FACILITATE THE FREE EXCHANGE OF IDEAS AS WELL AS THE EXERCISE OF CULTURAL ACTIVITIES AND SCIENTIFIC RESEARCH WITHIN THE COMMUNITY ' .

9IN PURSUIT OF SUCH OBJECTIVE , THAT REGULATION ENSURES THE IMPLEMENTATION AT COMMUNITY LEVEL OF THE FLORENCE AGREEMENT , MENTIONED IN THE AFORESAID RECITAL , WHICH WAS DRAWN UP UNDER THE AUSPICES OF THE UNITED NATIONS EDUCATIONAL , SCIENTIFIC AND CULTURAL ORGANIZATION ( UNESCO ) AND ENTERED INTO FORCE ON 21 MAY 1952 .

10FOR THOSE PURPOSES , ARTICLE 3 ( 1 ) OF THE REGULATION PROVIDES THAT SCIENTIFIC INSTRUMENTS AND APPARATUS NOT INCLUDED IN ARTICLE 2 AND NOT LISTED IN ANNEX II , ' IMPORTED EXCLUSIVELY FOR EDUCATIONAL PURPOSES OR FOR PURE SCIENTIFIC RESEARCH MAY BE ADMITTED FREE OF COMMON CUSTOMS TARIFF DUTIES ' , PROVIDED THAT THEY ALSO FULFIL THE CONDITIONS LAID DOWN IN SUBPARAGRAPHS ( A ) AND ( B ) OF ARTICLE 3 ( 1 ).

11THE FIRST RECITAL IN THE PREAMBLE TO THE REGULATION PROVIDES THAT THE IMPORTATION INTO A MEMBER STATE FREE OF COMMON CUSTOMS TARIFF DUTIES OF EDUCATIONAL , SCIENTIFIC AND CULTURAL MATERIALS IS TO BE ALLOWED ' BY ALL POSSIBLE MEANS ' .

12FOR THE SAME PURPOSES , THE SECOND RECITAL IN THE PREAMBLE TO THE REGULATION AT ISSUE STATES THAT ' CUSTOMS DUTY-FREE ADMISSION OF EDUCATIONAL , SCIENTIFIC AND CULTURAL MATERIALS MUST BE UNIFORM THROUGHOUT THE COMMUNITY ' .

13HENCE IT FOLLOWS THAT THE ASSESSMENT OF WHETHER OR NOT AN INSTRUMENT OR APPARATUS CAPABLE OF BEING GRANTED EXEMPTION FROM CUSTOMS DUTIES IS OF A ' SCIENTIFIC ' NATURE WITHIN THE MEANING OF ARTICLE 3 ( 1 ) OF THE REGULATION MUST BE BASED UPON THE OBJECTIVE CHARACTERISTICS OF THAT INSTRUMENT OR APPARATUS .

14THOSE CHARACTERISTICS MUST BE SUCH AS TO MAKE IT PARTICULARLY SUITABLE FOR PURE SCIENTIFIC RESEARCH .

15ALTHOUGH THE FIRST INDENT OF ARTICLE 3 ( 3 ) DEFINES THE CONCEPT OF PURE SCIENTIFIC RESEARCH AS ' RESEARCH CARRIED OUT FOR NON-COMMERCIAL PURPOSES ' , IT IS NONE THE LESS TRUE THAT THE INTENDED USE OF THE INSTRUMENT OR APPARATUS IN QUESTION MUST BE ASSESSED ON THE BASIS ONLY OF ITS OBJECTIVE CHARACTERISTICS AND NOT IN RELATION TO THE PARTICULAR END TO WHICH THE INSTITUTION OR ESTABLISHMENT WHICH APPLIED FOR EXEMPTION FROM CUSTOMS DUTY INTENDS TO USE IT .

16FOR THE PURPOSES OF SUCH ASSESSMENT , THE FACT THAT THE USE OF THE INSTRUMENT OR APPARATUS REQUIRES SPECIFIC SCIENTIFIC KNOWLEDGE CAN BE EVIDENCE OF ITS BEING OF A SCIENTIFIC NATURE WITHIN THE MEANING OF THE AFORESAID ARTICLE 3 ( 1 ).

17FOR THOSE REASONS THE APPROPRIATE ANSWER TO THE QUESTIONS REFERRED TO THE COURT IS THAT THE WORDS ' SCIENTIFIC INSTRUMENT OR APPARATUS ' APPEARING IN ARTICLE 3 ( 1 ) OF REGULATION NO 1798/75 REFER TO AN INSTRUMENT OR APPARATUS POSSESSING OBJECTIVE CHARACTERISTICS WHICH MAKE IT PARTICULARLY SUITABLE FOR PURE SCIENTIFIC RESEARCH .

18SINCE SUCH A PURPOSE MUST BE ASSESSED OBJECTIVELY , ON THE BASIS ONLY OF THOSE CHARACTERISTICS , THE FACT THAT THE INSTRUMENT OR APPARATUS IS USED , IN INDUSTRY OR ELSEWHERE , FOR COMMERCIAL PURPOSES DOES NOT OF ITSELF NECESSARILY EXCLUDE ITS BEING OF A SCIENTIFIC NATURE WITHIN THE MEANING OF REGULATION NO 1798/75 , AND HENCE ITS RIGHT TO EXEMPTION FROM CUSTOMS DUTIES UNDER THAT REGULATION , PROVIDED THAT THE OTHER REQUIREMENTS LAID DOWN FOR THOSE PURPOSES ARE ALSO SATISFIED .

COSTS

19THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

20SINCE THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION 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 ( FIRST CHAMBER )

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE TARIEFCOMMISSIE BY AN ORDER OF 2 MAY 1977 , HEREBY RULES :

1 . THE APPROPRIATE ANSWER TO THE QUESTIONS REFERRED TO THE COURT IS THAT THE WORDS ' SCIENTIFIC INSTRUMENT OR APPARATUS ' APPEARING IN ARTICLE 3 ( 1 ) OF REGULATION NO 1798/75 REFER TO AN INSTRUMENT OR APPARATUS POSSESSING OBJECTIVE CHARACTERISTICS WHICH MAKE IT PARTICULARLY SUITABLE FOR PURE SCIENTIFIC RESEARCH .

2 . SINCE SUCH A PURPOSE MUST BE ASSESSED OBJECTIVELY , ON THE BASIS ONLY OF THOSE CHARACTERISTICS , THE FACT THAT THE INSTRUMENT OR APPARATUS IS USED , IN INDUSTRY OR ELSEWHERE , FOR COMMERCIAL PURPOSES DOES NOT OF ITSELF NECESSARILY EXCLUDE ITS BEING OF A SCIENTIFIC NATURE WITHIN THE MEANING OF REGULATION NO 1798/75 , AND HENCE ITS RIGHT TO EXEMPTION FROM CUSTOMS DUTIES UNDER THAT REGULATION , PROVIDED THAT THE OTHER REQUIREMENTS LAID DOWN FOR THOSE PURPOSES ARE ALSO SATISFIED .