61982J0300

COMMON CUSTOMS TARIFF - IMPORTATION FREE OF CUSTOMS DUTIES - SCIENTIFIC MATERIALS - SCIENTIFIC INSTRUMENT - CONCEPT - WIDE INTERPRETATION - MATERIAL CONSTITUTING AN INDISPENSABLE MEANS OF CARRYING OUT PARTICULAR SCIENTIFIC RESEARCH - OBJECT COVERED BY THE TERM ' ' SCIENTIFIC INSTRUMENT ' '

( REGULATION ( EEC ) NO 1798/75 OF THE COUNCIL , ART . 3 ( 1 ))

SINCE , ACCORDING TO THE FIRST RECITAL IN THE PREAMBLE TO REGULATION NO 1798/75 , IT IS NECESSARY TO ALLOW ' ' BY ALL POSSIBLE MEANS ' ' THE ADMISSION FREE OF CUSTOMS DUTIES OF EDUCATIONAL , SCIENTIFIC AND CULTURAL MATERIALS , THE TERM ' ' SCIENTIFIC INSTRUMENT ' ' IN ARTICLE 3 ( 1 ) OF THAT REGULATION CANNOT BE GIVEN A NARROW IN- TERPRETATION BUT MAY , ON THE CONTRARY , INCLUDE MATERIALS MANUFACTURED ON THE BASIS OF SCIENTIFIC DISCOVERIES AND USED NOT AS AN OBJECT BUT AS A MEANS OF SCIENTIFIC RESEARCH .

THE TERM ' ' SCIENTIFIC INSTRUMENT ' ' IN ARTICLE 3 OF THE AFOREMENTIONED REGULATION MUST THEREFORE BE INTERPRETED AS INCLUDING A MATERIAL MADE UP OF PLASTIC BLOCKS AND INTENDED FOR RADIOLOGICAL RESEARCH , INASMUCH AS THE MATERIAL FULFILS AN ESSENTIAL FUNCTION AS AN INDISPENSABLE MEANS OF OBTAINING CERTAIN RESULTS FROM LONG-TERM SCIENTIFIC RESEARCH .

IN CASE 300/82

REFERENCE TO THE COURT PURSUANT TO ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT ( FINANCE COURT ) DUSSELDORF , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

GESAMTHOCHSCHULE ( POLYTECHNIC/UNIVERSITY ) ESSEN

AND

HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) DUSSELDORF

ON THE INTERPRETATION 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 AND CULTURAL MATERIALS ( OFFICIAL JOURNAL 1975 , L 184 , P . 1 ), AS AMENDED BY REGULATION NO 1027/79 OF 8 MAY 1979 ( OFFICIAL JOURNAL 1979 , L 134 , P . 1 ),

1 BY ORDER OF 20 OCTOBER 1982 WHICH WAS RECEIVED AT THE COURT ON 3 DECEMBER 1982 , THE FINANZGERICHT ( FINANCE COURT ) DUSSELDORF REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 3 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 AND CULTURAL MATERIALS ( OFFICIAL JOURNAL 1975 , L 184 , P . 1 ), ADOPTED IN ORDER TO IMPLEMENT THE FLORENCE AGREEMENT ( UNITED NATIONS TREATY SERIES VOLUME 131 , 1952 , NO 1734 , PP . 26 ET SEQ .).

2 THE QUESTION AROSE IN THE COURSE OF AN ACTION BROUGHT BEFORE THE NATIONAL COURT BY THE GESAMTHOCHSCHULE ( POLYTECHNIC/UNIVERSITY ) ESSEN FOR THE ANNULMENT OF THE DECISION OF THE HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) DUSSELDORF REFUSING EXEMPTION FROM CUSTOMS DUTIES ON THE IMPORTATION OF PLASTIC BLOCKS KNOWN AS ' ' PHANTOM MATERIAL A-150 ' ' , ORIGINATING IN THE UNITED STATES OF AMERICA AND INTENDED BY THE GESAMTHOCHSCHULE TO SIMULATE HUMAN MUSCLE TISSUE TO ENABLE THE EFFECT OF RADIATION ON THE HUMAN ORGANISM TO BE MEASURED , ON THE GROUND THAT THE MATERIAL WAS NOT A SCIENTIFIC INSTRUMENT OR APPARATUS WITHIN THE MEANING OF REGULATION NO 1798/75 .

3 THE PLAINTIFF IN THE MAIN ACTION CLAIMED BEFORE THE NATIONAL COURT THAT THE MATERIAL IN QUESTION OUGHT TO BE REGARDED AS A ' ' SCIENTIFIC INSTRUMENT OR APPARATUS ' ' WITHIN THE MEANING OF THE ABOVE-MENTIONED REGULATION , SINCE IT CONSTITUTED NOT THE OBJECT BUT THE INSTRUMENT OF RESEARCH , BEING USED FOR THE NEUTRON DOSIMETERS EMPLOYED IN BIOLOGY AND MEDICINE , AND ALSO BECAUSE IT WAS ONLY BY USING THE MATERIAL THAT IT WAS POSSIBLE TO ASSESS AND COMPARE , AT THE INTERNATIONAL LEVEL , THE RESULTS OBTAINED FROM RESEARCH .

4 ON THE REJECTION OF THAT ARGUMENT BY THE HAUPTZOLLAMT , THE FINANZGERICHT DUSSELDORF REFERRED TO THE COURT FOR A PRELIMINARY RULING THE FOLLOWING QUESTION :

' ' IN REGULATION ( EEC ) NO 1798/75 OF THE COUNCIL OF 10 JULY 1975 , IS THE TERM ' SCIENTIFIC INSTRUMENT ' TO BE INTERPRETED BROADLY SO AS TO INCLUDE SCIENTIFIC AIDS AND WORKING MATERIALS SUCH AS PHANTOM MATERIAL A-150 , A SUBSTANCE MADE UP OF PLASTIC BLOCKS AND INTENDED FOR RADIOLOGICAL RESEARCH?

' '

5 IT APPEARS FROM THE PAPERS BEFORE THE COURT THAT THE MATERIAL IN QUESTION HAS A SPECIAL COMPOSITION RESULTING FROM DISCOVERIES OF SCIENTIFIC RESEARCH AND IS MANUFACTURED BY ONLY ONE UNDERTAKING WHICH IS SITUATED OUTSIDE THE COMMUNITY . ON BEING EXPOSED TO RADIATION IT PRODUCES , OWING TO ITS COMPOSITION , REACTIONS SIMILAR TO THOSE OF HUMAN TISSUE . FOR THAT REASON IT IS USED IN SCIENTIFIC RESEARCH PROJECTS UNDERTAKEN IN THE INTERESTS OF HUMAN HEALTH AS A MEANS OF MEASURING THE EFFECT OF NEUTRON RAYS ON HUMAN TISSUE .

6 THE USE OF THE MATERIAL IN QUESTION ALSO SERVES TO FACILITATE THE ASSESSMENT AND COMPARISON , AT THE INTERNATIONAL LEVEL , OF THE RESULTS OF SCIENTIFIC RESEARCH PROJECTS IN THE FIELD OF NEUTRON DOSIMETRY .

7 CONSEQUENTLY , THE QUESTION REFERRED TO THE COURT ASKS WHETHER THE TERM ' ' SCIENTIFIC INSTRUMENT ' ' IN ARTICLE 3 OF REGULATION NO 1798/75 MUST BE INTERPRETED AS INCLUDING A MATERIAL SUCH AS THE ONE KNOWN AS PHANTOM MATERIAL A-150 , MADE UP OF PLASTIC BLOCKS AND INTENDED FOR RADIOLOGICAL RESEARCH , INASMUCH AS THAT MATERIAL FULFILS AN ESSENTIAL FUNCTION AS AN INDISPENSABLE MEANS OF OBTAINING CERTAIN RESULTS FROM LONG-TERM SCIENTIFIC RESEARCH .

8 IT SHOULD BE NOTED THAT NEITHER THE FLORENCE AGREEMENT NOR REGULATION NO 1798/75 CONTAINS A DEFINITION OF THE TERM ' ' SCIENTIFIC INSTRUMENT ' ' FOR THE PURPOSES OF ARTICLE 3 ( 1 ) OF THE SAID REGULATION . A DEFINITION MUST THEREFORE BE SOUGHT IN THE PURPOSE OF THAT PROVISION , CONSIDERED IN THE LIGHT OF ALL THE PROVISIONS OF , AND THE PREAMBLE TO , REGULATION NO 1798/75 .

9 SINCE , ACCORDING TO THE FIRST RECITAL IN THE PREAMBLE TO THAT REGULATION , IT IS NECESSARY TO ALLOW ' ' BY ALL POSSIBLE MEANS ' ' THE ADMISSION FREE OF CUSTOMS DUTIES OF EDUCATIONAL , SCIENTIFIC AND CULTURAL MATERIALS , THE TERM ' ' SCIENTIFIC INSTRUMENT ' ' IN ARTICLE 3 ( 1 ) OF REGULATION NO 1798/75 CANNOT BE GIVEN A NARROW INTERPRETATION .

10 THAT CONCLUSION IS CONFIRMED BY THE PREAMBLE TO THE FLORENCE AGREEMENT , WHICH IS BASED ON THE IDEA ' ' THAT THE FREE EXCHANGE OF IDEAS AND KNOWLEDGE AND , IN GENERAL , THE WIDEST POSSIBLE DISSEMINATION OF THE DIVERSE FORMS OF SELF-EXPRESSION USED BY CIVILIZATIONS ARE VITALLY IMPORTANT BOTH FOR INTELLECTUAL PROGRESS AND INTERNATIONAL UNDERSTANDING ' ' AND ' ' THAT THIS INTERCHANGE IS ACCOMPLISHED PRIMARILY BY MEANS OF BOOKS , PUBLICATIONS AND EDUCATIONAL , SCIENTIFIC AND CULTURAL MATERIALS ' ' .

11 IN THAT CONTEXT IT IS IMPOSSIBLE TO FIND SUPPORT FOR A NARROW INTERPRETATION IN THE FACT THAT ARTICLE 2 OF REGULATION NO 1798/75 REFERS GENERALLY TO SCIENTIFIC ' ' MATERIALS ' ' LISTED IN ANNEX II , WHEREAS ARTICLE 3 ( 1 ) RELATES TO ' ' SCIENTIFIC INSTRUMENTS AND APPARATUS ' ' NOT INCLUDED IN ARTICLE 2 .

12 ARTICLE 3 IN FACT CONTAINS TWO ADDITIONAL CRITERIA WHICH PERMIT A SUFFICIENTLY PRECISE DEFINITION TO BE GIVEN OF A SCIENTIFIC INSTRUMENT WHICH MAY BE ADMITTED FREE OF CUSTOMS DUTY , NAMELY THAT IT SHOULD BE INTENDED EXCLUSIVELY FOR SCIENTIFIC RESEARCH OR EDUCATION AND THAT IT IS NOT BEING MANUFACTURED IN THE COMMUNITY . IN VIEW OF THOSE TWO CONDITIONS FOR THE GRANT OF EXEMPTION , IT IS INAPPROPRIATE TO INTERPRET THE CONCEPT IN QUESTION IN A MANNER CONTRARY TO THE PURPOSE OF REGULATION NO 1798/75 AS SET OUT ABOVE .

13 MOREOVER , IT SHOULD BE NOTED THAT ARTICLE 3 OF REGULATION NO 1798/75 WAS AMENDED BY REGULATION NO 1027/79 ( OFFICIAL JOURNAL 1979 , L 134 , P . 1 ) AND THAT ARTICLE 3 ( 3 ) AS AMENDED GIVES A GENERAL DEFINITION OF THE TERM ' ' SCIENTIFIC INSTRUMENT OR APPARATUS ' ' , FOLLOWING IN PART THE EXAMPLE SET BY THE COURT IN ITS JUDGMENT OF 2 FEBRUARY 1978 IN CASE 72/77 , UNIVERSITEITSKLINIEK UTRECHT V INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN , ( 1978 ) ECR 189 .

14 ARTICLE 3 ( 3 ) AS AMENDED IS NOT APPLICABLE IN THIS CASE , SINCE THE FACTS UPON WHICH THE DISPUTE IN THE MAIN ACTION ARE BASED OCCURRED BEFORE THE AMENDMENT OF REGULATION NO 1798/75 ; EVEN SO IT CANNOT JUSTIFY SUCH A NARROW INTERPRETATION .

15 NOR DOES THE ABOVE-MENTIONED JUDGMENT OF THE COURT PREVENT THE TERM ' ' SCIENTIFIC INSTRUMENT ' ' FROM BEING INTERPRETED WIDELY ENOUGH TO INCLUDE MATERIALS MANUFACTURED ON THE BASIS OF SCIENTIFIC DISCOVERIES AND USED NOT AS AN OBJECT BUT AS A MEANS OF SCIENTIFIC RESEARCH . THAT IS IN ANY EVENT TRUE IN THE CASE OF MATERIALS SUCH AS THOSE IN THIS CASE WHICH CANNOT EASILY BE REPLACED AND WHICH ARE THEREFORE USED FOR LONG-TERM SCIENTIFIC RESEARCH .

16 THESE FINDINGS ARE SUFFICIENT TO GIVE A REPLY TO THE NATIONAL COURT , WITHOUT ITS BEING NECESSARY TO PROVIDE HERE AN EXHAUSTIVE DEFINITION OF A SCIENTIFIC INSTRUMENT .

17 FINALLY , IN RELATION TO THE COMMISSION ' S OPINION THAT CHEMICAL SUBSTANCES CANNOT FALL WITHIN THE DEFINITION OF A SCIENTIFIC INSTRUMENT , IT SHOULD BE NOTED THAT THIS CASE IS NOT CONCERNED WITH ANY CHEMICAL SUBSTANCE BUT WITH A MATERIAL USED AS A TOOL IN A PARTICULAR SCIENTIFIC CONTEXT . FOR THE SAME REASON IT IS ALSO UNNECESSARY TO CONSIDER THE COMMISSION ' S ARGUMENT THAT CHEMICAL SUBSTANCES ARE COVERED FOR THE FIRST TIME IN THE MOST RECENT VERSION OF REGULATION NO 1798/75 , NAMELY IN ARTICLE 60 OF COUNCIL REGULATION NO 918/83 OF 28 MARCH 1983 ( OFFICIAL JOURNAL 1983 , L 105 , P . 1 ).

18 THE ANSWER TO THE QUESTION SUBMITTED TO THE COURT BY THE FINANZGERICHT DUSSELDORF SHOULD THEREFORE BE THAT THE TERM ' ' SCIENTIFIC INSTRUMENT ' ' IN ARTICLE 3 OF REGULATION NO 1798/75 MUST BE INTERPRETED AS INCLUDING A MATERIAL SUCH AS THE ONE KNOWN AS PHANTOM MATERIAL A-150 , MADE UP OF PLASTIC BLOCKS AND INTENDED FOR RADIOLOGICAL RESEARCH , INASMUCH AS THE MATERIAL FULFILS AN ESSENTIAL FUNCTION AS AN INDISPENSABLE MEANS OF OBTAINING CERTAIN RESULTS FROM LONG-TERM SCIENTIFIC RESEARCH .

COSTS

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

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE FINANZGERICHT DUSSELDORF BY ORDER OF 20 OCTOBER 1982 HEREBY RULES :

THE TERM ' ' SCIENTIFIC INSTRUMENT ' ' IN ARTICLE 3 OF REGULATION NO 1798/75 MUST BE INTERPRETED AS INCLUDING A MATERIAL SUCH AS THE ONE KNOWN AS PHANTOM MATERIAL A-150 , MADE UP OF PLASTIC BLOCKS AND INTENDED FOR RADIOLOGICAL RESEARCH , INASMUCH AS THE MATERIAL FULFILS AN ESSENTIAL FUNCTION AS AN INDISPENSABLE MEANS OF OBTAINING CERTAIN RESULTS FROM LONG-TERM SCIENTIFIC RESEARCH .