61981J0294

1 . ACTION FOR DECLARATION OF NULLITY - NATURAL AND LEGAL PERSONS - MEASURES OF DIRECT AND INDIVIDUAL CONCERN TO THEM - COMMISSION DECISION DECLARING THAT THE IMPORTATION OF ARTICLES MAY NOT TAKE PLACE FREE OF COMMON CUSTOMS TARIFF DUTIES - DECISION NOTIFIED TO THE MEMBER STATES - DECISION OF INDIVIDUAL CONCERN TO THE IMPORTER - CONDITIONS

( EEC TREATY , ART . 173 , SECOND PARA .)

2 . MEASURES ADOPTED BY THE INSTITUTIONS - STATEMENT OF REASONS - DUTY - OBJECT - SCOPE

( EEC TREATY , ART . 190 )

3 . ACTION FOR DECLARATION OF NULLITY - REVIEW BY THE COURT - LIMITS - COMMISSION DECISION DECLARING THAT THE IMPORTATION OF ARTICLES MAY NOT TAKE PLACE FREE OF COMMON CUSTOMS TARIFF DUTIES - ARTICLES OF A SCIENTIFIC NATURE - REVIEW OF THE APPLICATION OF THE CRITERIA USED BY THE COMMISSION

( EEC TREATY , ART . 173 )

4 . COMMON CUSTOMS TARIFF - IMPORTATION FREE OF CUSTOMS DUTIES - ARTICLES OF A SCIENTIFIC NATURE - APPRAISAL OF THE MAIN USE OF THE APPARATUS IN QUESTION - CRITERIA

( COMMISSION REGULATION NO 2784/79 , ART . 5 )

1 . A DECISION , NOTIFIED TO ALL THE MEMBER STATES , BY WHICH THE COMMISSION DECLARES THAT THE IMPORTATION OF APPARATUS CANNOT TAKE PLACE FREE OF COMMON CUSTOMS TARIFF DUTIES IS OF INDIVIDUAL CONCERN , WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY , TO THE SOLE IMPORTER FOR A MEMBER STATE , WHICH IS THE WHOLLY-OWNED SUBSIDIARY OF THE UNDERTAKING THAT MANUFACTURES THE APPARATUS IN QUESTION AND WHICH SUBMITTED THE APPLICATION FOR IMPORTATION FREE OF DUTY . IN THOSE CIRCUMSTANCES , TO INSIST THAT THE ACTION TO HAVE THE DECISION DECLARED VOID MUST BE BROUGHT BEFORE THE COURT , NOT BY THE SOLE IMPORTER ALONE , BUT BY THE PARENT COMPANY , OR THAT THE SOLE IMPORTER MUST ACT JOINTLY WITH THE OTHER SUBSIDIARIES WHICH ARE IMPORTERS IN THE COMMUNITY , WOULD CONSTITUTE AN EXCESSIVE DEGREE OF FORMALISM , SINCE THE DECISION AT ISSUE IS NOT CONCERNED SOLELY WITH THE IMPORTATION OF THE APPARATUS IN QUESTION BUT WITH THE IMPORTATION OF ALL APPARATUS OF THE SAME TYPE INTO THE WHOLE OF THE COMMUNITY .

2 . BY IMPOSING UPON THE COMMISSION THE OBLIGATION TO STATE THE REASONS FOR ITS DECISIONS ARTICLE 190 OF THE TREATY IS NOT TAKING MERE FORMAL CONSIDERATIONS INTO ACCOUNT BUT SEEKS TO GIVE AN OPPORTUNITY TO THE PARTIES OF DEFENDING THEIR RIGHTS , TO THE COURT OF EXERCISING ITS POWER OF REVIEW , AND TO THE MEMBER STATES TO WHICH ITS DECISIONS ARE ADDRESSED AND TO ALL INTERESTED NATIONALS OF ASCERTAINING THE CIRCUMSTANCES IN WHICH THE COMMISSION HAS APPLIED THE TREATY .

THUS IT IS NOT SUFFICIENT THAT THE MEMBER STATES , AS ADDRESSEES OF A DECISION DECLARING THAT THE IMPORTATION OF APPARATUS CANNOT TAKE PLACE FREE OF COMMON CUSTOMS TARIFF DUTIES , ARE AWARE OF THE REASONS FOR THAT DECISION AS A RESULT OF THEIR PARTICIPATION IN THE PRELIMINARY PROCEDURE AND THAT AN IMPORTER , THE PERSON DIRECTLY AND INDIVIDUALLY CONCERNED , IS ABLE TO DEDUCE THESE REASONS BY COMPARING THE DECISION IN QUESTION WITH SIMILAR , EARLIER DECISIONS .

3 . ALTHOUGH , WITHIN THE FRAMEWORK OF AN ACTION TO HAVE DECLARED VOID A COMMISSION DECISION DECLARING THAT THE IMPORTATION OF APPARATUS CANNOT , BY REASON OF THE NON-SCIENTIFIC NATURE OF THE LATTER , TAKE PLACE FREE OF COMMON CUSTOMS TARIFF DUTIES , IT IS NOT FOR THE COURT TO FIND THAT THE APPARATUS IN QUESTION ARE OF A SCIENTIFIC NATURE , IT MUST ON THE OTHER HAND ASCERTAIN WHETHER THE CRITERIA APPLIED BY THE COMMISSION ARE IN ACCORDANCE WITH THE COMMUNITY RULES AND WHETHER IN APPLYING THOSE CRITERIA THE COMMISSION TOOK ACCOUNT OF THE OBJECTIVE CHARACTERISTICS OF THE PRODUCT REFERRED TO BY THE DECISION AT ISSUE .

4 . THE EXAMINATION , AS PRESCRIBED BY ARTICLE 5 OF REGULATION NO 2784/79 , OF THE GENERAL USES OF AN APPARATUS FOR WHICH AN APPLICATION FOR IMPORTATION FREE OF COMMON CUSTOM TARIFF DUTIES IS MADE , IN CASES WHERE IT IS NOT POSSIBLE TO ESTABLISH CLEARLY , ON THE BASIS OF THE OBJECTIVE TECHNICAL CHARACTERISTICS OF THE IMPORTED APPARATUS , WHETHER IT IS TO BE REGARDED AS A SCIENTIFIC INSTRUMENT OR APPARATUS , MUST COVER THE COMMUNITY AS A WHOLE AND NOT MERELY ONE MEMBER STATE . IN ADDITION , ACCORDING TO THAT ARTICLE , IT IS SUFFICIENT , IN ORDER TO ESTABLISH THE SCIENTIFIC NATURE OF THE EQUIPMENT , THAT THE EXAMINATION SHOULD SHOW ' ' THAT THE INSTRUMENT OR APPARATUS IN QUESTION IS USED MAINLY FOR SCIENTIFIC PURPOSES ' ' .

IN CASE 294/81

CONTROL DATA BELGIUM NV SA , A LIMITED LIABILITY COMPANY GOVERNED BY BELGIAN LAW HAVING ITS REGISTERED OFFICE AT 50 RUE DE LA FUSEE , 1130 BRUSSELS , REPRESENTED BY IAN S . FORRESTER , OF THE SCOTS BAR , INSTRUCTED BY OPPENHEIMER , WOLFF , FOSTER , SHEPARD & DONNELLY , ATTORNEYS-AT-LAW , MINNEAPOLIS AND ST PAUL , MINNESOTA , UNITED STATES OF AMERICA , AND OF BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JEAN-CLAUDE WOLTER , 2 RUE GOETHE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY RICHARD WAINWRIGHT , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR A DECLARATION THAT COMMISSION DECISION 81/692/EEC OF 10 AUGUST 1981 ( OFFICIAL JOURNAL 1981 , L 252 , P . 36 ) ESTABLISHING THAT THE APPARATUS DESCRIBED AS ' ' CONTROL DATA-CYBER 170-720 ; CYBER 170-750 ' ' MAY NOT BE IMPORTED FREE OF COMMON CUSTOMS TARIFF DUTIES IS VOID ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 23 NOVEMBER 1981 CONTROL DATA BELGIUM NV SA BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COMMISSION DECISION 81/692/EEC OF 10 AUGUST 1981 ESTABLISHING THAT THE APPARATUS ( COMPUTERS ) DESCRIBED AS ' ' CONTROL DATA CYBER 170-720 ; CYBER 170-750 ' ' MAY NOT BE IMPORTED FREE OF COMMON CUSTOMS TARIFF DUTIES ( OFFICIAL JOURNAL , L 252 , P . 36 ) IS VOID .

2 THAT DECISION WAS ADOPTED WITHIN THE FRAMEWORK OF REGULATION ( EEC ) NO 1798/75 OF THE COUNCIL OF 10 JULY 1975 ON THE IMPORTATION FREE OF COMMON CUSTOMS TARIFF DUTIES OF EDUCATIONAL , SCIENTIFIC OR CULTURAL MATERIALS ( OFFICIAL JOURNAL , L 184 , P . 1 ), AS AMENDED BY COUNCIL REGULATION ( EEC ) NO 1027/79 OF 8 MAY 1979 ( OFFICIAL JOURNAL , L 134 , P . 1 ), AND OF COMMISSION REGULATION NO 2784/79 OF 12 DECEMBER 1979 LAYING DOWN PROVISIONS FOR THE IMPLEMENTATION OF REGULATION NO 1798/75 ( OFFICIAL JOURNAL , L 318 , P . 32 ). THE PURPOSE OF THOSE REGULATIONS IS TO ENSURE THE IMPLEMENTATION BY THE COMMUNITY OF THE AGREEMENT ON THE IMPORTATION OF EDUCATIONAL , SCIENTIFIC AND CULTURAL MATERIALS DRAWN UP ON THE INITIATIVE OF THE UNITED NATIONS EDUCATIONAL , SCIENTIFIC AND CULTURAL ORGANIZATION ( UNESCO ) ADOPTED AT FLORENCE IN JULY 1950 ( UNITED NATIONS TREATY SERIES , VOL . 131 , P . 25 ), AS SUPPLEMENTED BY THE NAIROBI PROTOCOL , ADOPTED ON 26 NOVEMBER 1976 , AND APPROVED BY COUNCIL DECISION 79/505/EEC OF 8 MAY 1979 ( OFFICIAL JOURNAL , L 134 , P . 13 ).

3 ARTICLE 3 OF THE ABOVE-MENTIONED REGULATION NO 1798/75 OF THE COUNCIL , AS AMENDED BY REGULATION NO 1027/79 , PROVIDES THAT SUBJECT TO CERTAIN CONDITIONS ' ' SCIENTIFIC INSTRUMENTS AND APPARATUS ' ' MAY BE ADMITTED FREE OF COMMON CUSTOMS TARIFF DUTIES PROVIDED THAT THEY ARE IMPORTED EXCLUSIVELY FOR NON-COMMERCIAL PURPOSES . ACCORDING TO ARTICLE 3 ( 3 ) THE WORDS QUOTED ABOVE MEAN ' ' ANY INSTRUMENT OR APPARATUS WHICH , BY REASON OF ITS OBJECTIVE TECHNICAL CHARACTERISTICS AND THE RESULTS WHICH IT MAKES IT POSSIBLE TO OBTAIN , IS MAINLY OR EXLUSIVELY SUITED TO SCIENTIFIC ACTIVITIES ' ' .

4 WHEN THE COMMISSION LAID DOWN PROVISIONS FOR THE IMPLEMENTATION OF COUNCIL REGULATION NO 1798/75 IN COMMISSION REGULATION NO 2784/79 , IT PROVIDED FURTHER CLARIFICATION OF THE CRITERIA SET OUT ABOVE . ACCORDING TO ARTICLE 5 OF THAT REGULATION ' ' THE ' OBJECTIVE TECHNICAL CHARACTERISTICS ' OF A SCIENTIFIC INSTRUMENT OR APPARATUS SHALL BE UNDERSTOOD TO MEAN THOSE CHARACTERISTICS RESULTING FROM THE CONSTRUCTION OF THAT INSTRUMENT OR APPARATUS OR FROM ADJUSTMENTS TO A STANDARD INSTRUMENT OR APPARATUS WHICH MAKE IT POSSIBLE TO OBTAIN HIGH-LEVEL PERFORMANCES ABOVE THOSE NORMALLY REQUIRED FOR INDUSTRIAL OR COMMERCIAL USE . ' ' WHERE IT IS NOT POSSIBLE TO ESTABLISH CLEARLY THE CHARACTER OF AN INSTRUMENT OR APPARATUS ON THE BASIS OF THESE OBJECTIVE TECHNICAL CHARACTERISTICS THE ARTICLE PROVIDES THAT AN EXAMINATION OF THE GENERAL USES IN THE COMMUNITY OF INSTRUMENTS OR APPARATUS OF THAT TYPE MUST BE CARRIED OUT . IF THAT EXAMINATION SHOWS THAT THE INSTRUMENT OR APPARATUS FOR WHICH DUTY-FREE ADMISSION IS REQUESTED IS USED MAINLY FOR SCIENTIFIC PURPOSES IT IS DEEMED TO BE OF A SCIENTIFIC NATURE .

5 ACCORDING TO ARTICLE 7 OF THE IMPLEMENTING REGULATION THE DECISION ON DUTY-FREE IMPORTATION IS TO BE TAKEN BY THE COMPETENT NATIONAL AUTHORITY IF THE INFORMATION AT ITS DISPOSAL ENABLES IT TO ASSESS WHETHER OR NOT THE INSTRUMENT OR APPARATUS IS SCIENTIFIC . IN THE ABSENCE OF SUCH DECISION THE APPLICATION FOR EXCEPTION IS TO BE FORWARDED TO THE COMMISSION WHICH MUST THEN SEEK THE VIEW OF THE MEMBER STATES AND , IN THE EVENT OF OBJECTION , REFER THE MATTER TO A GROUP OF EXPERTS COMPOSED OF REPRESENTATIVES OF THE MEMBER STATES WHO MEET WITHIN THE FRAMEWORK OF THE COMMITTEE ON DUTY-FREE ARRANGEMENTS IN ORDER TO EXAMINE THE APPLICATION . WHEN THAT EXAMINATION IS COMPLETED THE COMMISSION IS TO TAKE A DECISION WHICH MUST BE NOTIFIED TO ALL MEMBER STATES .

6 THE FILE ON THE CASE SHOWS THAT THE TWO FREE UNIVERSITIES OF BRUSSELS CONCLUDED A ' ' LEASING CONTRACT ' ' WITH THE APPLICANT CONCERNING THE ACQUISITION OF TWO COMPUTERS OF THE CYBER 170-720 AND CYBER 170-750 TYPES , BOTH MANUFACTURED IN THE UNITED STATES . IN ORDER TO IMPORT THE COMPUTERS FREE OF DUTY THE APPLICANT , ACTING IN THE NAME OF THE UNIVERSITIES , SUBMITTED AN APPROPRIATE APPLICATION DATED 6 AUGUST 1980 TO THE BELGIAN CUSTOMS AUTHORITIES . IT APPENDED TO ITS APPLICATION A VERY DETAILED FILE WHICH WAS FURTHER SUPPLEMENTED AFTER CONVERSATIONS WITH THE AUTHORITIES .

7 IN PURSUANCE OF ARTICLE 7 OF REGULATION NO 2784/79 THE BELGIAN AUTHORITIES TRANSMITTED THE APPLICATION , TOGETHER WITH THE FILE , TO THE COMMISSION . SINCE THREE MEMBER STATES CHALLENGED THE SCIENTIFIC NATURE OF THE TWO COMPUTERS THE COMMISSION REFERRED THE MATTER TO THE COMMITTEE ON DUTY-FREE ARRANGEMENTS AND , IN ACCORDANCE WITH THE OPINION OF THE LATTER , ADOPTED THE DECISION AT ISSUE .

8 THAT DECISION IS BASED ENTIRELY ON THE NON-SCIENTIFIC NATURE OF THE TWO COMPUTERS . THE DECISIVE RECITALS IN THE PREAMBLE TO THE DECISION ARE WORDED AS FOLLOWS :

' ' . . . THIS EXAMINATION SHOWED THAT THE APPARATUS IN QUESTION ARE COMPUTERS ,

. . . THEY DO NOT HAVE THE REQUISITE OBJECTIVE CHARACTERISTICS MAKING THEM SPECIFICALLY SUITED TO SCIENTIFIC RESEARCH ; . . . MOREOVER , APARATUS OF THE SAME KIND ARE PRINCIPALLY USED FOR NON-SCIENTIFIC ACTIVITIES ; . . . THEIR USE IN THE CASE IN QUESTION COULD NOT ALONE CONFER UPON THEM THE CHARACTER OF SCIENTIFIC APPARATUS ; . . . THEY THEREFORE CANNOT BE REGARDED AS SCIENTIFIC APARATUS ; . . . THE DUTY-FREE ADMISSION OF THE APPARATUS IN QUESTION IS THEREFORE NOT JUSTIFIED . ' '

THE ADMISSIBILITY OF THE APPLICATION

9 THE COMMISSION RAISES THE OBJECTION THAT THE APPLICATION IS INADMISSIBLE ON THE GROUND THAT THE DECISION WHICH IS ADDRESSED TO THE MEMBER STATES DOES NOT CONCERN THE APPLICANT INDIVIDUALLY WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY . IN THIS CONNECTION IT EMPHASIZES THE GENERAL NATURE OF THE DECISION . THE DECISION DOES NOT CONCERN ONLY THE IMPORTATION INTO BELGIUM OF THE TWO COMPUTERS IN QUESTION . IT CONCERNS THE IMPORTATION OF ALL COMPUTERS OF THE TWO TYPES ANYWHERE IN THE COMMUNTY . ACCORDINGLY ONLY THE MANUFACTURER OF THOSE COMPUTERS OR THE CONTROL DATA GROUP IN ITS CAPACITY AS SOLE IMPORTER IN THE COMMUNITY IS ENTITLED TO INSTITUTE PROCEEDINGS UNDER THE SECOND PARAGRAPH OF ARTICLE 173 . THAT REMEDY IS NOT AVAILABLE TO ANY INDIVIDUAL MEMBER OF THE GROUP .

10 THE OBJECTION CANNOT BE UPHELD . THE APPLICANT IS THE WHOLLY-OWNED SUBSIDIARY OF THE MANUFACTURING UNDERTAKING , CONTROL DATA CORPORATION OF MINNEAPOLIS . IT IS THE SOLE IMPORTER FOR BELGIUM AND ITSELF SUBMITTED THE APPLICATION WHICH LED TO THE DECISION AT ISSUE . IN THOSE CIRCUMSTANCES , TO INSIST THAT THE PARENT COMPANY MUST INSTITUTE THE PROCEEDINGS BEFORE THE COURT OR THAT THE APPLICANT MUST ACT JOINTLY WITH THE OTHER SUBSIDIARIES WHICH ARE IMPORTERS IN THE COMMUNITY WOULD CONSTITUTE AN EXCESSIVE DEGREE OF FORMALISM .

THE SUBSTANCE OF THE CASE

11 THE APPLICANT PUTS FORWARD , IN SUBSTANCE , TWO SUBMISSIONS :

( A ) INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT ;

( B)INFRINGEMENT OF THE COMMUNITY RULES DEFINING THE SCIENTIFIC NATURE OF AN INSTRUMENT OR APPARATUS .

( A ) INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT

12 IN THE FIRST PLACE THE APPLICANT CLAIMS THAT THE REASONS ON WHICH THE DECISION IS BASED HAVE NOT BEEN ADEQUATELY STATED . THE RECITALS IN THE PREAMBLE WHICH HAVE BEEN CITED ABOVE MERELY CONTAIN , ACCORDING TO THE APPLICANT , A STEREOTYPED FORMULA EMPLOYED IN ALL THE DECISIONS CONCERNING COMPUTERS WHICH THE COMMISSION HAS ADOPTED SINCE THE ENTRY INTO FORCE OF THE REGULATIONS OF 1979 . THAT TERSE STATEMENT OF REASONS COMPLETELY DISREGARDS THE PARTICULAR CHARACTERISTICS OF THE COMPUTERS IN QUESTION IN RESPECT OF WHICH THE APPLICANT LODGED A COMPREHENSIVE FILE WHICH WAS LARGELY BASED ON TECHNICAL ANALYSES .

13 THE COMMISSION CONCEDES THAT THE STATEMENT OF REASONS ON WHICH THE DECISION IS BASED IS BRIEF BUT CONSIDERS THAT IT IS SUFFICIENT . THE ADDRESSEES OF THE DECISION , NAMELY THE MEMBER STATES , PARTICIPATED IN THE PROCEDURE AND WERE FULLY INFORMED OF THE REASON FOR THE COMMISSION ' S ATTITUDE . WITH REGARD TO THE APPLICANT , IT IS CLEAR FROM ITS OWN ARGUMENTS THAT IT IS PERFECTLY AWARE OF THE COMMISSION ' S POLICY ALTHOUGH IT DOES NOT ACCEPT THAT ITS COMPUTERS SHOULD BE TREATED AS ORDINARY COMPUTERS .

14 IN THIS CONNECTION IT SHOULD BE RECALLED , AS THE COURT HAS ALREADY EMPHASIZED ON NUMEROUS OCCASIONS , THAT BY IMPOSING UPON THE COMMISSION THE OBLIGATIONS TO STATE REASONS FOR ITS DECISION , ARTICLE 190 IS NOT TAKING MERE FORMAL CONSIDERATIONS INTO ACCOUNT BUT SEEKS TO GIVE AN OOPORTUNITY TO THE PARTIES OF DEFENDING THEIR RIGHTS , TO THE COURT OF EXERCISING ITS POWER OF REVIEW , AND TO MEMBER STATES AND TO ALL INTERESTED NATIONALS OF ASCERTAINING THE CIRCUMSTANCES IN WHICH THE COMMISSION HAS APPLIED THE TREATY .

15 THUS IT IS NOT SUFFICIENT THAT THE MEMBER STATES AS ADDRESSEES OF THE DECISION , ARE AWARE OF THE REASONS AS A RESULT OF THEIR PARTICIPATION IN THE PRELIMINARY PROCEDURE AND THAT THE APPLICANT THE PERSON DIRECTLY AND INDIVIDUALLY CONCERNED , IS ABLE TO DEDUCE THESE REASONS BY COMPARING THE DECISION IN QUESTION WITH SIMILAR EARLIER DECISIONS . IT IS FURTHER NECESSARY THAT THE APPLICANT SHOULD BE ENABLED IN PRACTICE TO DEFEND ITS RIGHTS AND THE COURT SHOULD BE ABLE EFFECTIVELY TO EXERCISE ITS POWER OF REVIEW ON THE BASIS OF THE STATEMENT OF REASONS . THE QUESTION WHETHER THE STATEMENT OF REASONS IS SUFFICIENT IN THESE RESPECTS MAY BEST BE EXAMINED IN THIS CASE IN CONJUNCTION WITH THE SUBMISSION CONSIDERED UNDER HEADING ( B ).

16 SECONDLY THE APPLICANT CLAIMS THAT HAVING REGARD ABOVE ALL TO THE STEREOTYPED STATEMENTS OF REASONS EMPLOYED BY THE COMMISSION THE LATTER ' S PROCEDURAL PRACTICE IN THIS AREA IS DISTINCTLY INADEQUATE IN SO FAR AS IT DOES NOT PERMIT EITHER AN EXCHANGE OF OPINIONS OR ALLOW THE PARTIES CONCERNED TO GIVE THEIR VIEWS ON ANY MATTERS AT ISSUE OR EVEN GIVE THEM THE OPPORTUNITY TO PROVIDE ADDITIONAL EXPLANATIONS BEFORE THE DECISION IS TAKEN .

17 THAT PART OF THE FIRST SUBMISSION CANNOT BE UPHELD . AS THE APPLICANT ITSELF ADMITS , THE COMMISSION FOLLOWED THE PROCEDURE LAID DOWN BY THE RELEVANT COMMUNITY RULES . IT IS ALSO NOT IN DISPUTE THAT THAT PROCEDURE ENABLED THE APPLICANT TO STATE IN FULL ITS ARGUMENT CONCERNING THE SCIENTIFIC NATURE OF THE COMPUTERS IN QUESTION IN THE FILE LODGED WITH THE BELGIAN AUTHORITIES AND THAT THE FILE WAS MADE AVAILABLE BOTH TO THE COMMITTEE ON DUTY-FREE ARRANGEMENTS AND TO THE COMMISSION .

( B ) INFRINGEMENT OF THE COMMUNITY RULES DEFINING THE SCIENTIFIC NATURE OF AN INSTRUMENT OR APPARATUS

18 IN THIS CONNECTION THE APPLICANT MAINTAINS THAT THE COMMISSION HAS ENTIRELY DISREGARDED THE PARTICULAR CHARACTERISTICS OF THE TWO COMPUTERS WHICH WHOLLY JUSTIFY THEIR CLASSIFICATION AS SCIENTIFIC INSTRUMENTS OR APPARATUS FOR THE PURPOSES OF THE COMMUNITY RULES . IT THEREFORE ASKS THE COURT NOT ONLY TO DECLARE THE CONTESTED DECISION VOID BUT ALSO TO MAKE A FINDING ESTABLISHING THE SCIENTIFIC NATURE OF THE COMPUTERS IN QUESTION .

19 ALTHOUGH IT IS NOT FOR THE COURT TO MAKE SUCH A FINDING WITHIN THE FRAMEWORK OF AN APPLICATION FOR A DECLARATION THAT A MEASURE IS VOID IT MUST ON THE OTHER HAND ASCERTAIN WHETHER THE CRITERIA APPLIED BY THE COMMISSION ARE IN ACCORDANCE WITH THE COMMUNITY RULES AND WHETHER IN APPLYING THOSE CRITERIA THE COMMISSION TOOK ACCOUNT OF THE OBJECTIVE CHARACTERISTICS OF THE COMPUTERS REFERRED TO BY THE DECISION . IT IS THEREFORE NECESSARY TO EXAMINE BOTH THE CRITERIA EMANATING FROM THE DECISION ITSELF AND THOSE WHICH WERE STATED BY THE COMMISSION IN THE COURSE OF THE PROCEEDINGS BEFORE THE COURT .

20 THE DECISION FINDS THAT THE APPARATUS IN QUESTION ARE COMPUTERS AND STATES THAT THEY DO NOT HAVE THE REQUISITE OBJECTIVE CHARACTERISTICS MAKING THEM SPECIFICALLY SUITED TO SCIENTIFIC RESEARCH AND THAT APPARATUS OF THE SAME KIND ARE PRINCIPALLY USED FOR NON-SCIENTIFIC ACTIVITIES . THE DECISION DOES NOT MAKE CLEAR WHETHER THOSE STATEMENTS RELATE TO COMPUTERS IN GENERAL OR WHETHER THEY REFER SPECIFICALLY TO THE TWO TYPES OF COMPUTER IN QUESTION . IN THE COURSE OF THE PROCEDURE BEFORE THE COURT HOWEVER , THE COMMISSION CONTENDED THAT AT LEAST THE LAST OF THESE STATEMENTS CONCERNED COMPUTERS IN GENERAL AND THAT , IN ITS VIEW , NO COMPUTER MAY BE REGARDED AS BEING SCIENTIFIC IN NATURE UNLESS IT IS INCORPORATED IN EQUIPMENT WHICH , CONSIDERED AS A WHOLE , HAS THAT NATURE .

21 THE COMMISSION HAS STATED THAT A COMPUTER IS NOT A SCIENTIFIC ' ' INSTRUMENT ' ' BECAUSE IT IS IMPOSSIBLE TO MEASURE , REVEAL , TRANSFORM OR PROCESS ANY PHYSICAL DIMENSION OR CHARACTERISTIC WITH A COMPUTER . LIKEWISE IT MAY NOT BE CLASSIFIED AS A ' ' SCIENTIFIC ' ' INSTRUMENT OR APPARATUS BECAUSE CALCULATION AS SUCH DOES NOT CONSTITUTE A SCIENTIFIC ACTIVITY .

22 THE APPLICANT CONSIDERS THAT THESE DEFINITIONS HAVE BEEN RENDERED COMPLETELY OBSOLETE BY MODERN SCIENCE . IN A NUMBER OF FIELDS , IN PARTICULAR IN THEORETICAL PHYSICS AND CHEMISTRY , THE COMPUTER CONSTITUTES THE ONLY EFFECTIVE TOOL FOR THE SCIENTIST AND THE EXTREMELY COMPLICATED EQUATIONS WHICH ONLY A COMPUTER CAN SOLVE WITHIN A REASONABLE PERIOD FORM THE BASIS OF THE RESULTS OF RESEARCH .

23 THESE ARGUMENTS OF THE APPLICANT MUST BE UPHELD . THE LANGUAGE OF THE ABOVE-MENTIONED PROVISIONS OF THE COMMUNITY REGULATIONS PROVIDES NO SUPPORT FOR THE RESTRICTIVE INTERPRETATION PUT FORWARD BY THE COMMISSION . NEITHER THE ETYMOLOGY OF THE WORDS ' ' INSTRUMENT ' ' AND ' ' APPARATUS ' ' NOR THE USAGE OF THOSE WORDS IN EVERYDAY LANGUAGE JUSTIFIES THE NARROW DEFINITIONS ADOPTED BY THE COMMISSION .

24 THE COMMISSION FURTHER CONTENDS THAT , IF IT IS POSSIBLE TO CLASSIFY A COMPUTER AS A SCIENTIFIC APPARATUS THIS IS BECAUSE OF ITS APPLICATION SOFTWARE AND NOT OF ITS HARDWARE OR OF ITS SYSTEM SOFTWARE . IT DRAWS A COMPARISON WITH A ROCKET . AN EMPTY ROCKET CAN NEVER BE CONSIDERED A SCIENTIFIC APPARATUS . ONLY WHEN SCIENTIFIC INSTRUMENTS ARE PLACED IN THE ROCKET DOES ITS PURPOSE BECOME SCIENTIFIC . THE APPLICATION SOFTWARE IS INTERCHANGEABLE , LIKE THE INSTRUMENTS IN THE ROCKET . FOR THAT REASON , TOO , A COMPUTER AS SUCH CAN NEVER BE CLASSIFIED AS A SCIENTIFIC APPARATUS .

25 THE APPLICANT REPLIES THAT CYBER COMPUTERS ARE , FROM THE VERY NATURE OF THEIR HARDWARE , INTENDED FOR SCIENTIFIC USE . THEY ARE CONSTRUCTED IN ORDER TO SOLVE VERY COMPLEX MATHEMATICAL EQUATIONS WITH AN ACCURACY AND SPEED WHICH IS NOT REQUIRED BY A TYPICAL COMMERCIAL USER . ON THE OTHER HAND THE DESIGN OF SUCH COMPUTERS IS PARTICULARLY UNSUITED TO THE HANDLING OR COMPARISON OF A LARGE AMOUNT OF RECORDED INFORMATION , THAT IS TO SAY , TO THE WORK WHICH A COMMERCIAL USER MOST OFTEN REQUIRES . WITH REGARD TO THE APPLICATION SOFTWARE CYBER COMPUTERS ARE LARGELY COMPATIBLE WITH THE PRINCIPAL SCIENTIFIC PROGRAMMING LANGUAGE , FORTRAN . A PART OF EACH COMPUTER IS INDEED RESERVED EXCLUSIVELY FOR SUCH PROGRAMMES . ON THE OTHER HAND THE COMPUTERS ARE BROADLY INCOMPATIBLE WITH THE PRINCIPAL COMMERCIAL PROGRAMMING LANGUAGE , COBOL . FINALLY , THE CONSTRUCTION OF CYBER COMPUTERS IS SUCH THAT THE PROGRAMME CANNOT BE INTERRUPTED IN COURSE TO RECORD NEW INFORMATION , AN IMPORTANT FACILITY FOR THE COMMERCIAL USER . FOR ALL THESE REASONS THE APPLICANT DISPUTES THE VIEW THAT THE APPLICATION SOFTWARE ALONE RENDERS THESE COMPUTERS SUITABLE FOR SCIENTIFIC PURPOSES .

26 CONFRONTED WITH THESE CONFLICTING POINTS OF VIEW , THE COURT DOES NOT CONSIDER THAT IT CAN EXCLUDE THE POSSIBILITY THAT A CRITERION BASED ON THE DIFFERENCE BETWEEN THE HARDWARE AND THE SOFTWARE OF A COMPUTER MAY BE IN CONFORMITY WITH THE COMMUNITY RULES ON THE DUTY-FREE IMPORTATION OF SCIENTIFIC INSTRUMENTS AND APPARATUS . HOWEVER , IT HAS NOT BEEN ESTABLISHED EITHER IN THE STATEMENTS OF THE REASONS ON WHICH THE DECISION AT ISSUE IS BASED OR IN THE PROCEEDINGS BEFORE THE COURT THAT A PRECISE CRITERION OF THAT NATURE WAS IN FACT APPLIED BY THE COMMISSION FOR THE PURPOSE OF ADOPTING THE DECISION . NOR , FURTHERMORE , IS THERE ANYTHING TO SHOW THAT IF THE COMMISSION DID APPLY SUCH A CRITERION IT TOOK SUFFICIENT ACCOUNT OF THE OBJECTIVE CHARACTERISTICS OF THE TWO COMPUTERS , BOTH WITH REGARD TO THEIR HARDWARE AND TO THEIR SYSTEM SOFTWARE .

27 THE COMMISSION CLAIMS , IN THE EVENT OF THE COURT ' S HOLDING THAT A COMPUTER AS SUCH MAY BE CLASSIFIED AS A SCIENTIFIC INSTRUMENT OR APPARATUS , THAT THE SPECIFIC CHARACTERISTICS OF CYBER COMPUTERS ARE INSUFFICIENT FOR THAT PURPOSE . AS A GENERAL RULE COMPUTERS ARE MULTI-PURPOSE MACHINES . THEY ARE AS SUITABLE FOR BUSINESS USE AS FOR WORK OF A SCIENTIFIC NATURE AND IN PRACTICE THEY ARE CHIEFLY USED FOR BUSINESS PURPOSES . BY REASON OF THEIR CAPACITY ACCURATELY AND SWIFTLY TO EFFECT COMPLICATED COMPUTATIONS CYBER COMPUTERS ARE CERTAINLY VERY WELL SUITED TO SCIENTIFIC COMPUTING BUT THEY ARE EQUALLY SUITED TO COMMERCIAL PURPOSES , IN PARTICULAR IN THE SPHERE OF ADVANCED TECHNOLOGY . ALTHOUGH THEY ARE LESS SUITED TO COMMERCIAL WORK OF AN ADMINISTRATIVE NATURE THEY ARE STILL CAPABLE OF PERFORMING SUCH WORK AND THUS REMAIN MULTI-PURPOSE MACHINES .

28 IN THE COMMISSION ' S OPINION THAT APPRAISAL IS CONFIRMED BY THE FACT THAT THE COMPUTERS IMPORTED FOR THE FREE UNIVERSITIES OF BRUSSELS HAVE ALSO BEEN USED FOR ADMINISTRATIVE PURPOSES . FURTHERMORE , OF THE 13 CYBER COMPUTERS HITHERTO IMPORTED INTO FRANCE ONLY FOUR ARE USED MAINLY FOR RESEARCH , SIX ARE USED FOR TECHNICAL ADMINISTRATION AND FOR SCIENTIFIC CALCULATIONS WHILST THREE ARE USED FOR VARIOUS PURPOSES , INCLUDING ACCOUNTING , INVOICING AND SALARIES .

29 IN ORDER TO APPRAISE THESE ADDITIONAL ARGUMENTS OF THE COMMISSION THE RELEVANT COMMUNITY PROVISIONS CITED ABOVE SHOULD BE RECALLED . APART FROM THE DISTINCTION BETWEEN SCIENTIFIC RESEARCH AND WORK IN THE FIELD OF ADVANCED TECHNOLOGY , WHICH THE COMMISSION HAS INDICATED BUT HAS ENTIRELY FAILED TO CLARIFY , IT DOES NOT APPEAR THAT THOSE ARGUMENTS PRECLUDE THE RECOGNITION OF THE COMPUTERS IN QUESTION AS APPARATUS ' ' MAINLY . . . SUITED TO SCIENTIFIC ACTIVITIES ' ' ( ARTICLE 3 OF REGULATION NO 1798/75 ) OR ' ' WHICH MAKE IT POSSIBLE TO OBTAIN HIGH-LEVEL PERFORMANCES ABOVE THOSE NORMALLY REQUIRED FOR INDUSTRIAL OR COMMERCIAL USE ' ' ( ARTICLE 5 OF REGULATION NO 2784/79 ).

30 WITH REGARD TO THE EXAMINATION OF THE GENERAL USES OF AN APPARATUS OF THAT TYPE WHICH IS PRESCRIBED BY ARTICLE 5 OF REGULATION NO 2784/79 IN CASES WHERE IT IS NOT POSSIBLE TO ESTABLISH CLEARLY ON THE BASIS OF THE OBJECTIVE TECHNICAL CHARACTERISTICS OF THE IMPORTED APPARATUS WHETHER IT IS TO BE REGARDED AS A SCIENTIFIC INSTRUMENT OR APPARATUS , IT SHOULD BE RECALLED THAT THE EXAMINATION MUST COVER THE COMMUNITY AS A WHOLE AND NOT MERELY ONE MEMBER STATE . IN ADDITION , ACCORDING TO THE ARTICLE , IT IS SUFFICIENT , IN ORDER TO ESTABLISH THE SCIENTIFIC NATURE OF THE EQUIPMENT , THAT THE EXAMINATION SHOULD SHOW ' ' THAT THE INSTRUMENT OR APPARATUS IN QUESTION IS USED MAINLY FOR SCIENTIFIC PURPOSES ' ' .

31 IT MUST THEREFORE BE CONCLUDED THAT NEITHER THE STATEMENT OF THE REASONS ON WHICH THE DECISION AT ISSUE IN BASED NOR THE COMMISSION ' S ARGUMENTS BEFORE THE COURT HAVE MADE IT POSSIBLE FOR THE COURT TO FIND THAT WHEN THE COMMISSION ADOPTED THE DECISION IT APPLIED CLEAR CRITERIA WHICH WERE IN ACCORDANCE WITH THE COMMUNITY REGULATIONS AND THAT IN DOING SO IT HAD SUFFICIENT REGARD FOR THE PARTICULAR OBJECTIVE CHARACTERISTICS OF THE TWO COMPUTERS IN QUESTION .

32 FOR THAT REASON THE DECISION ADOPTED BY THE COMMISSION SHOULD BE DECLARED VOID AND THE MATTER SHOULD BE REFERRED BACK TO THE COMMISSION FOR RECONSIDERATION .

COSTS

33 ACCORDING TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DECLARES THAT COMMISSION DECISION 81/692/EEC OF 10 AUGUST 1981 ESTABLISHING THAT THE APPARATUS DESCRIBED AS ' ' CONTROL DATA-CYBER 170-720 ; CYBER 170-750 ' ' MAY NOT BE IMPORTED FREE OF COMMON CUSTOMS TARIFF DUTIES ( OFFICIAL JOURNAL , L 252 , P . 36 ) IS VOID ;

2.ORDERS THE COMMISSION TO PAY THE COSTS .