61987J0303

++++

Common Customs Tariff - Importation free of customs duties - Scientific instruments and apparatus - Equivalence of the imported apparatus and other apparatus manufactured in the Community - Assessment - Equivalence obtained by the attachment of an accessory

( Council Regulation No 918/83, Art . 54 )

Under the conditions for exemption from customs duties on scientific instruments and apparatus laid down in Regulation No 918/83, the fact that a scientific apparatus manufactured in the Community meets the requirements of a research project only if fitted with an accessory available on the market does not affect the assessment that the latter apparatus is equivalent to an imported apparatus .

In Case 303/87

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

Universitaet Stuttgart

and

Hauptzollamt ( Principal Customs Office ) Stuttgart-Ost

on the validity of Commission Decision 85/C 57/03 of 1 March 1985 finding that the apparatus known as "Jarrel-Ash-Plasma-Atomcomp Direct Reading Spectrometer System ( Model 1125 A )" may not be imported free of import duties,

THE COURT ( Fourth Chamber )

composed of T . Koopmans, President of Chamber, C . N . Kakouris and M . Díez de Velasco, Judges,

Advocate General : M . Darmon

Registrar : H . A . Ruehl, Principal Administrator

after considering the observations submitted on behalf of

the Government of the Kingdom of Belgium, represented by Koen Lenaerts, acting as Agent,

the Commission of the European Communities, represented by J . Sack, a member of its Legal Department, acting as Agent,

having regard to the Report for the Hearing and further to the hearing on 1 December 1988,

after hearing the Opinion of the Advocate General delivered at the sitting on 11 January 1989,

gives the following

Judgment

1 By order of 7 September 1987, which was received at the Court on 5 October 1987, the Finanzgericht ( Finance Court ) Baden-Wuerttemberg referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the validity of Commission Decision 85/C 57/03 of 1 March 1985 ( Official Journal 1985, C 57, p . 3 ) finding that the apparatus known as "Jarrel-Ash-Plasma-Atomcomp Direct Reading Spectrometer System ( Model 1125 A )" may not be imported free of import duties .

2 The question was raised in proceedings brought by the University of Stuttgart against Hauptzollamt Stuttgart-Ost, which, by decision of 26 April 1985, refused to admit the abovementioned spectrometer free of import duties .

3 The American apparatus, which the plaintiff in the main proceedings ordered on 13 January 1982 and imported from the United States into Germany on 19 April 1982, is intended, according to the application for customs clearance submitted by the University of Stuttgart on 16 March 1982, for use in the investigation of metal content in effluent and sewage sludge, in connection with research work on the development and testing of various processes for the treatment of effluent and sewage sludge .

4 In the course of the procedure concerning the application of the University of Stuttgart for exemption from customs duties in respect of the apparatus in question, the German authorities asked the Commission to indicate whether the spectrometer in question could be regarded as a scientific apparatus within the meaning of Article 3(1)(b ) 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 ), as amended with effect from 1 January 1980 by Council Regulation No 1027/79 of 8 May 1979 ( Official Journal 1979, L 134, p . 1 ).

5 The Commission referred the matter to the competent Committee on Duty-Free Arrangements and decided on 1 March 1985 that notwithstanding its scientific character the American apparatus could not be imported free of customs duties since apparatus of equivalent scientific value capable of being used for the same purposes were being manufactured in the Community, namely the "PV 8210/PV 8490" manufactured in Belgium by Philips Industrie SA and the "JY 48" and the "JY 70 P" manufactured in France by Jobin Yvon .

6 In proceedings instituted before the Finanzgericht against the refusal to grant customs exemption which was based on the abovementioned decision the plaintiff claims that the Commission decision is formally defective, inasmuch as it contains an inadequate statement of the reasons on which it was based, and is substantively incorrect . In support of the latter argument it claims that in view of their limited wavelength range the comparable Belgian and French apparatus inter alia do not allow simultaneous determination of potassium content on the 766.4 nm spectral line . That analysis, however, is essential to the University' s research project .

7 According to the view of an expert appointed in the main proceedings, the apparatus of European manufacture are equivalent to the American apparatus in question with the exception of certain differences in wavelength range . The apparatus manufactured in the Community detect potassium only on the 404.4 nm spectral analysis line . However, detection of that element on the basis of a broad spectral waveband is essential to the plaintiff' s research project .

8 Since it considered that there was some doubt as to the validity of the Commission decision, the Finanzgericht submitted the following question to the Court :

"Is Commission Decision 85/C 57/03 of 1 March 1985 ( Official Journal 1985, C 57, p . 3 ) invalid?"

9 Reference is made to the Report for the Hearing, as supplemented after the hearing, for a fuller account of the facts and the legal background to the case before the national court, the course of the procedure and the written observations and oral argument before the Court of Justice, which are mentioned or discussed only in so far as is necessary for the reasoning of the Court .

10 The Commission decision of 1 March 1985 which the Court is called on to consider was adopted on the basis of Council Regulation No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty ( Official Journal 1983, L 105, p . 1 ) and Commission Regulation No 2290/83 of 29 July 1983 laying down provisions for the implementation of Articles 50 to 59 of Council Regulation No 918/83 ( Official Journal 1983, L 220, p . 20 ).

11 In the grounds of its order for reference, the Finanzgericht states that the statement of the reasons on which the contested decision is based may be regarded as insufficient since the Commission' s finding that the apparatus manufactured in Belgium and France are equivalent to the apparatus imported from the United States is stated in only a few words .

12 The Belgian Government and the Commission consider that the decision of 1 March 1985 contains an adequate statement of reasons in so far as, in particular, it specifies the European apparatus with which the American apparatus was compared and states that the experts consulted took the view that all the apparatus were equivalent from the scientific point of view . Those statements, together with the information obtained in advance from manufacturers within the Community by the applicant for exemption in accordance with the obligation imposed by Article 6(2)(j ) of Regulation No 2290/83, makes it possible for the persons concerned to determine all the factors on the basis of which the Commission' s decision was adopted .

13 As the Court pointed out in its judgment of 25 October 1984 in Case 185/83 University of Groningen v Inspecteur der Invoerrechten en Accijnzen, Groningen (( 1984 )) ECR 3623, although it is true that the Court has consistently held that the statement of grounds required by Article 190 of the Treaty must disclose in a clear and unequivocal fashion the reasoning followed by the Community authority which adopted the measure in question in such a way as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights, and to enable the Court to exercise its supervisory jurisdiction, the authority is not required to give details of all relevant factual and legal aspects . The question whether the statement of the grounds for a decision meets those requirements must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question .

14 In the present case it must be observed that despite its laconic character the statement of the reasons for the decision of 1 March 1985 meets the requirements of Article 190 of the EEC Treaty since it contains the information necessary to assess the equivalence of the scientific apparatus in question .

15 With respect to the substance of the decision, the national court raises the question whether the European apparatus are equivalent to the imported spectrometer in regard to certain aspects of their technical capabilities . It is necessary first to consider the objections concerning the equivalence of the apparatus produced in Belgium .

16 It is apparent from the file on the case that the only criticism made of the Belgian apparatus concerns the detection of potassium . According to the expert' s report cited by the Finanzgericht, the Philips apparatus detects potassium not on the 766.4 nm spectral line, like the American apparatus, but on the 404.4 nm spectral line .

17 That statement is contested by the Belgian Government, which states that according to information provided by Philips Industrie in the main proceedings the PV 8210/PV 8490 detects potassium on the 766.4 nm spectral line .

18 For its part, the Commission maintains that the Philips apparatus is capable of complete detection of potassium, that is to say on the 766.4 nm spectral line, using a standard accessory from the same company known as the "PV 8291/00 ".

19 Since the scientific character of the apparatus in question has not been challenged, it is necessary to consider whether, as maintained by the plaintiff in the main proceedings, the Philips apparatus is incapable of detecting potassium on the 766.4 nm spectral line .

20 It must be borne in mind that for the purposes of such an examination of the substantive validity of the Commission decision the Court has only a limited power of review . As the Court emphasized in its judgment of 28 September 1983 in Case 216/82 Universitaet Hamburg v Hauptzollamt Hamburg-Kehrwieder (( 1983 )) ECR 2771, given the technical character of the examination to determine whether or not particular apparatus are equivalent, it cannot, save in the event of manifest error of fact or law or misuse of power, find fault with the substance of a decision adopted by the Commission in conformity with the opinion of the Committee on Duty-Free Arrangements .

21 The disagreement which appears to exist between the plaintiff in the main proceedings on the one hand and the Belgian Government and the Commission on the other regarding the performance of the Belgian apparatus compared with that of the apparatus imported from the United States relates only to the characteristics of those apparatus as they stand . That difference of view does not thus call in question the possibility that those apparatus may be adapted so as to be able to detect potassium on the 766.4 nm spectral line, using an accessory available from the same manufacturer, namely the "PV 8291/00" module .

22 Attention was drawn to that technical option by the Commission, which produced the sales brochure from Philips Industrie describing additional equipment facilitating extended detection of potassium . That possibility was reaffirmed by the Belgian Government and the Commission at the hearing, and was not challenged by the plaintiff in the main proceedings . That technical finding is in conformity with the expert' s report prepared in the main proceedings, which not only did not exclude but implicitly accepted the possibility of the Philips apparatus being modified in that way .

23 The fact that an accessory is needed for the extended detection of potassium does not affect the assessment of the equivalence of the apparatus in question, inasmuch as the purpose of the regulation is to avoid the importation of apparatus from non-member countries when apparatus manufactured in the Community offer equivalent technical possibilities .

24 Consequently, the Commission' s decision establishing the equivalence of the Belgian and American apparatus is not vitiated by any manifest error of assessment .

25 In view of that finding, an answer may be given to the national court without its being necessary to consider whether the French apparatus are also equivalent to the American apparatus in question .

26 It must therefore be stated in reply to the national court that consideration of the question submitted has disclosed no factor of such a kind as to affect the validity of Commission Decision 85/C 57/03 of 1 March 1985 .

Costs

27 The costs incurred by the Belgian Government and the Commission of the European Communities, which 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 ( Fourth Chamber ),

in answer to the question submitted to it by the Finanzgericht Baden-Wuerttemberg, by order of 7 September 1987, hereby rules :

Consideration of the question submitted has disclosed no factor of such a kind as to affect the validity of Commission Decision 85/C 57/03 of 1 March 1985 .