Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords
1 . COMMON CUSTOMS TARIFF - IMPORTATION FREE OF CUSTOMS DUTIES - OBJECTS OF SCIENTIFIC VALUE - COMMISSION DECISION REFUSING TO ALLOW THE IMPORTATION OF A SCIENTIFIC APPARATUS FREE OF CUSTOMS DUTIES - REVIEW BY THE COURT - LIMITS
( COMMISSION REGULATION NO 2784/79 , ART . 7 ( 6 ))
2 . COMMON CUSTOMS TARIFF - IMPORTATION FREE OF CUSTOMS DUTIES - OBJECTS OF SCIENTIFIC VALUE - WHETHER THE IMPORTED PRODUCT AND OTHER INSTRUMENTS MADE IN THE COMMUNITY ARE EQUIVALENT - ASSESSMENT - CRITERIA
( COUNCIL REGULATION NO 1798/75 , ART . 3 ( 3 ), AS AMENDED BY REGULATION NO 1027/79 )
3 . MEASURES ADOPTED BY THE INSTITUTIONS - STATEMENT OF REASONS - DUTY - SCOPE AND LIMITS - COMMISSION DECISION REFUSING TO ALLOW THE IMPORTATION OF A SCIENTIFIC APPARATUS FREE OF CUSTOMS DUTIES
( EEC TREATY , ART . 190 )
Summary
1 . IN AN AREA AS TECHNICAL AS THAT OF THE EQUIVALENCE OF A SCIENTIFIC APPARATUS MADE IN THE COMMUNITY AND AN IMPORTED APPARATUS THE COURT CANNOT , SAVE IN THE EVENT OF MANIFEST ERROR OF FACT OR LAW OR MISUSE OF POWER , FIND FAULT WITH THE CONTENTS OF A DECISION ADOPTED BY THE COMMISSION UNDER ARTICLE 7 ( 6 ) OF REGULATION NO 2784/79 IN CONFORMITY WITH THE OPINION OF THE COMMITTEE ON DUTY-FREE ARRANGEMENTS , REFUSING TO ALLOW THE IMPORTATION OF A SCIENTIFIC APPARATUS FREE OF CUSTOMS DUTIES .
2.FOR THE PURPOSE OF THE IMPORTATION FREE OF CUSTOMS DUTIES OF A SCIENTIFIC APPARATUS THE QUESTION WHETHER THE APPARATUS IN QUESTION AND SIMILAR APPARATUS MADE IN THE COMMUNITY ARE EQUIVALENT MUST NOT BE DECIDED SOLELY ON THE BASIS OF THE TECHNICAL SPECIFICATIONS WHICH THE USER DESCRIBED IN HIS APPLICATION AS BEING NECESSARY FOR HIS RESEARCH BUT PRIMARILY ON THE BASIS OF AN OBJECTIVE ASSESSMENT OF THEIR CAPACITY TO CARRY OUT THE EXPERIMENTS FOR WHICH THE USER INTENDED TO USE THE IMPORTED APPARATUS .
3.ALTHOUGH IT IS TRUE 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 .
HOWEVER LACONIC ITS STATEMENT OF REASONS MAY BE , A COMMISSION DECISION REFUSING TO ALLOW THE IMPORTATION OF A SCIENTIFIC APPARATUS FREE OF CUSTOMS DUTIES THEREFORE SATISFIES THE REQUIREMENTS LAID DOWN BY ARTICLE 190 OF THE TREATY IF IT IS ADDRESSED TO THE MEMBER STATES WHICH TOOK PART IN THE MEETINGS OF THE GROUP OF EXPERTS WITHIN THE FRAMEWORK OF THE COMMITTEE ON DUTY-FREE ARRANGEMENTS AND CONTAINS ELEMENTS WHICH ARE INDISPENSABLE FOR THE PURPOSE OF ENABLING THOSE CONCERNED BY IT TO DISCOVER ANY IRREGULARITIES WHICH MAY CAST DOUBT ON ITS VALIDITY .
Parties
IN CASE 185/83
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TARIEFCOMMISSIE ( ADMINISTRATIVE COURT OF LAST INSTANCE IN REVENUE MATTERS ), AMSTERDAM , FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
INTERFACULTAIR INSTITUUT ELECTRONENMICROSCOPIE ( INTERFACULTY INSTITUTE FOR ELECTRON MICROSCOPY ) OF THE UNIVERSITY OF GRONINGEN
AND
INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN ( INSPECTOR OF CUSTOMS AND EXCISE ), GRONINGEN ,
Subject of the case
ON THE VALIDITY OF COMMISSION DECISION 81/843/EEC OF 8 OCTOBER 1981 ESTABLISHING THAT THE APPARATUS DESCRIBED AS ' ' JEOL ELECTRON MICROSCOPE , MODEL JEM-200 CX ' ' MAY NOT BE IMPORTED FREE OF COMMON CUSTOMS TARIFF DUTIES ( OFFICIAL JOURNAL 1981 , L 314 , P . 15 ),
Grounds
1 BY ORDER OF 31 DECEMBER 1982 , WHICH WAS RECEIVED AT THE COURT ON 31 AUGUST 1983 , THE TARIEFCOMMISSIE ( ADMINISTRATIVE COURT OF LAST INSTANCE IN REVENUE MATTERS ), AMSTERDAM , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION REGARDING THE VALIDITY OF COMMISSION DECISION 81/843/EEC OF 8 OCTOBER 1981 ESTABLISHING THAT THE APPARATUS DESCRIBED AS ' ' JEOL ELECTRON MICROSCOPE , MODEL JEM-200 CX ' ' MAY NOT BE IMPORTED FREE OF COMMON CUSTOMS TARIFF DUTIES ( OFFICIAL JOURNAL 1981 , L 314 , P . 15 ).
2 THAT QUESTION WAS RAISED IN AN ACTION BROUGHT BEFORE THE TARIEFCOMMISSIE BY THE INTERFACULTAIR INSTITUUT ELECTRONENMICROSCOPIE OF THE UNIVERSITY OF GRONINGEN ( HEREINAFTER REFERRED TO AS ' ' THE INSTITUTE ' ' ) FOR THE ANNULMENT OF THE DECISION OF THE INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN ( INSPECTOR OF CUSTOMS AND EXCISE ), GRONINGEN ( HEREINAFTER REFERRED TO AS ' ' THE INSPECTOR ' ' ), OF 26 NOVEMBER 1980 REFUSING TO GRANT EXEMPTION FROM CUSTOMS DUTIES FOR THE IMPORTATION FROM JAPAN OF THE ABOVE-MENTIONED APPARATUS TOGETHER WITH ITS ACCESSORIES , ON THE GROUND THAT APPARATUS OF EQUIVALENT SCIENTIFIC VALUE WAS MANUFACTURED IN THE COMMUNITY .
3 ACCORDING TO THE DOCUMENTS BEFORE THE COURT , ON 20 AUGUST 1980 THE INSTITUTE APPLIED TO IMPORT FREE OF CUSTOMS DUTIES AN ELECTRON MICROSCOPE MANUFACTURED BY THE JAPANESE FIRM JEOL LTD AND INTENDED , ACCORDING TO THE APPLICATION , FOR ' ' SCIENTIFIC RESEARCH ON METALS AND MATERIALS ' ' AND FOR ' ' INSTRUCTION OF STUDENTS READING APPLIED PHYSICS AND , SUBSIDIARILY , PURE PHYSICS ' ' .
4 IN ITS APPLICATION THE INSTITUTE ALSO STATED THAT COMPARATIVE STUDIES HAD BEEN CARRIED OUT IN THE RESEARCH LABORATORIES OF PHILIPS NEDERLAND BV IN EINDHOVEN AND OF JEOL LTD IN LONDON , WHICH HAD DEMONSTRATED THE ' ' CLEAR SUPERIORITY ' ' OF THE JEOL JEM-200 CX COMPARED WITH THE PHILIPS EM 400 . THAT SUPERIORITY WAS LARGELY DUE TO THE ACCELERATION CAPACITY , 200 KV IN THE CASE OF THE JEM-200 CX AS AGAINST 120 KV IN THE CASE OF THE EM 400 . PHILIPS HAD INFORMED IT THAT IT WAS UNABLE TO SUPPLY AN EM 400 PRODUCING 200 KV . AS A RESULT THE INSTITUTE CONSIDERED THAT FOR THE FIELD OF APPLICATION ENVISAGED THERE WAS ONLY ONE POSSIBLE CHOICE , THE JEM-200 CX .
5 IN REFUSING EXEMPTION THE INSPECTOR RELIED ON COMMISSION DECISION 80/772 OF 18 JULY 1980 ( OFFICIAL JOURNAL 1980 , L 221 , P . 20 ) ADOPTED AT THE REQUEST OF THE FRENCH GOVERNMENT IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 7 OF COMMISSION REGULATION NO 2784/79 OF 12 DECEMBER 1979 ( OFFICIAL JOURNAL 1979 , L 318 , P . 32 ). THAT REGULATION CONTAINS PROVISIONS FOR THE IMPLEMENTATION OF COUNCIL REGULATION 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 ), AMENDED BY REGULATION NO 1027/79 ( OFFICIAL JOURNAL 1979 , L 134 , P . 1 ).
6 IN THAT DECISION , WHICH CONCERNED THE USE OF THE JEM-200 CX APPARATUS FOR THE STUDY OF METALS AND ALLOYS , THE COMMISSION FOUND THAT APPARATUSES OF EQUIVALENT SCIENTIFIC VALUE , WHICH COULD BE USED FOR THE SAME PURPOSES , WERE CURRENTLY BEING MANUFACTURED IN THE COMMUNITY ; THAT WAS TRUE IN PARTICULAR OF THE APPARATUS EM 400 MANUFACTURED BY SA PHILIPS INDUSTRIELLE ET COMMERCIALE ( FRANCE ). IT THEREFORE FOUND THAT THE CONDITIONS REQUIRED FOR THE ADMISSION FREE OF COMMON CUSTOMS TARIFF DUTIES OF THE APPARATUS IN QUESTION WERE NOT FULFILLED .
7 AFTER AN ACTION HAD BEEN BROUGHT BEFORE THE TARIEFCOMMISSIE , HOWEVER , THE NETHERLANDS GOVERNMENT ASKED THE COMMISSION TO INITIATE ONCE MORE THE PROCEDURE PROVIDED FOR IN ARTICLE 7 OF REGULATION NO 2784/79 IN ORDER TO DETERMINE WHETHER OR NOT THE SAID APPARATUS , ' ' TO BE USED FOR MICROSTRUCTURAL RESEARCH OF THE TRANSFORMATION AND DEFORMATION OF METALLIC MATERIALS , SHOULD BE CONSIDERED TO BE A SCIENTIFIC APPARATUS AND , WHERE THE REPLY IS IN THE AFFIRMATIVE , WHETHER APPARATUS OF EQUIVALENT SCIENTIFIC VALUE IS CURRENTLY BEING MANUFACTURED IN THE COMMUNITY ' ' .
8 IN THE CONTESTED DECISION , ADOPTED IN REPLY TO THAT REQUEST , THE COMMISSION HELD THAT THE JEM-200 CX APPARATUS COULD NOT BE IMPORTED FREE OF COMMON CUSTOMS TARIFF DUTIES . THE LAST RECITAL IN THE PREAMBLE TO THE DECISION STATES THAT :
' ' ON THE BASIS OF INFORMATION RECEIVED FROM MEMBER STATES , APPARATUS OF SCIENTIFIC VALUE EQUIVALENT TO THE SAID APPARATUS , CAPABLE OF BEING USED FOR THE SAME PURPOSES , ARE CURRENTLY BEING MANUFACTURED IN THE COMMUNITY ; . . . THIS APPLIES , IN PARTICULAR , TO THE APPARATUS ' EM 400 ' , MANUFACTURED BY PHILIPS NEDERLAND BV , BOSCHDIJK 525 , NL-EINDHOVEN ' ' .
9 THE TARIEFCOMMISSIE TOOK THE VIEW THAT IT WAS BOUND BY THAT DECISION , AND THEREFORE REFERRED THE FOLLOWING QUESTION TO THE COURT :
' ' HAS THE COMMISSION IN ITS DECISION OF 8 OCTOBER 1981 ( 81/843/EEC ) CORRECTLY INTERPRETED AND APPLIED THE TERM ' OF EQUIVALENT SCIENTIFIC VALUE ' CONTAINED IN ARTICLE 3 OF REGULATION ( EEC ) NO 1798/75?
' '
10 IT APPEARS FROM THE CONTEXT OF THE QUESTION POSED THAT IT IN FACT CONCERNS NOT THE INTERPRETATION OF REGULATION NO 1798/75 BUT THE VALIDITY OF THE COMMISSION DECISION OF 8 OCTOBER 1981 .
11 IN THE STATEMENT OF REASONS FOR ITS ORDER , THE TARIEFCOMMISSIE EXPRESSED DOUBTS AS TO THE VALIDITY OF THE DECISION , REFERRING TO THE FACT THAT THE INSTITUTE DISPUTED THE EQUIVALENCE OF THE TWO APPARATUSES , SINCE THE RESEARCH THAT IT CARRIED OUT REQUIRED AN ELECTRON MICROSCOPE WITH AN ACCELERATION CAPACITY OF 200 KV , A CONDITION FULFILLED BY THE JEM-200 CX APPARATUS , WHEREAS THE EM 400 APPARATUS HAD A CAPACITY OF ONLY 120 KV . IT STATED , MOREOVER , THAT THE COMMISSION HAD FAILED TO GIVE ADEQUATE REASONS FOR ITS DECISION THAT THE TWO APPARATUSES WERE OF EQUIVALENT SCIENTIFIC VALUE AND COULD BE USED FOR THE SAME PURPOSES .
12 IN ITS WRITTEN OBSERVATIONS MADE TO THE COURT , THE INSTITUTE AGAIN DENIED THAT THE TWO APPARATUSES WERE OF EQUIVALENT SCIENTIFIC VALUE , AND REFERRED INTER ALIA TO THE ' ' JOINT SUBMISSIONS ON THE APPLICATION FOR EXEMPTION FROM IMPORT DUTIES ' ' DRAWN UP IN CONJUNCTION WITH THE CATHOLIC UNIVERSITY OF LEUVEN AND ATTACHED TO THE APPLICATION MADE TO THE NATIONAL COURT .
13 REFERENCE SHOULD FIRST OF ALL BE MADE TO THE COURT ' S RULING THAT PERSONS CONCERNED BY A DECISION TAKEN BY THE COMMISSION UNDER THE COMMUNITY REGULATIONS ON THIS MATTER ' ' MAY PLEAD THE ILLEGALITY OF THAT DECISION BEFORE THE NATIONAL COURT IN PROCEEDINGS AGAINST THE FIXING OF CUSTOMS DUTY AND THE QUESTION OF THE VALIDITY OF THE DECISION MAY THEREFORE BE REFERRED TO THE COURT IN PROCEEDINGS FOR A PRELIMINARY RULING ' ' ( JUDGMENT OF 28 . 9 . 1983 , CASE 216/82 UNIVERSITAT HAMBURG V HAUPTZOLLAMT HAMBURG-KEHRWIEDER ( 1983 ) ECR 2771 ).
14 IT WAS STATED IN THE SAME JUDGMENT HOWEVER , WITH REGARD TO THE EXAMINATION OF THE VALIDITY OF SUCH A DECISION , THAT THE COURT HAS ONLY A LIMITED POWER OF SUPERVISION SINCE , GIVEN ' ' THE TECHNICAL CHARACTER OF THAT EXAMINATION ( OF THE QUESTION WHETHER OR NOT THE APPARATUSES ARE EQUIVALENT ) THE COURT CANNOT , SAVE IN THE EVENT OF MANIFEST ERROR OF FACT OR LAW OR MISUSE OF POWER , FIND FAULT WITH THE CONTENTS OF A DECISION WHICH THE COMMISSION HAD ADOPTED IN CONFORMITY WITH THE COMMITTEE ' S OPINION ' ' .
15 AS A RESULT IT IS NOT FOR THE COURT TO RE-EXAMINE THE QUESTION WHETHER IN FACT THE APPARATUSES CONCERNED ARE OF EQUIVALENT SCIENTIFIC VALUE ; IT MAY ONLY EXAMINE THE QUESTION WHETHER THE CONTESTED DECISION IS VITIATED BY MANIFEST ERROR OF FACT OR LAW OR MISUSE OF POWER , COMMITTED IN THE IMPLEMENTATION OF THE PROCEDURE PROVIDED FOR IN ARTICLE 7 OF REGULATION NO 2784/79 , OR WITH REGARD TO THE SUBSTANCE OF THE CASE .
THE COURSE OF THE PROCEDURE PROVIDED FOR IN ARTICLE 7 OF REGULATION NO 2784/79
16 WITH REGARD TO THE PROCEDURE , ACCORDING TO ARTICLE 7 ( 1 ) OF REGULATION NO 2784/79 , IMPLEMENTING ARTICLES 4 AND 9 OF REGULATION NO 1798/75 , THE COMPETENT NATIONAL AUTHORITY MUST TAKE A DIRECT DECISION ON THE APPLICATION IN ALL CASES WHERE THE INFORMATION AT ITS DISPOSAL ENABLES IT TO ASSESS WHETHER OR NOT THERE EXIST INSTRUMENTS OR APPARATUSES OF EQUIVALENT SCIENTIFIC VALUE WHICH ARE CURRENTLY MANUFACTURED IN THE COMMUNITY . ONLY IF THE NATIONAL AUTHORITY CONSIDERS THAT IT IS NOT IN A POSITION ITSELF TO DEAL WITH THAT QUESTION , THEREFORE , IS IT OBLIGED TO REFER THE MATTER TO THE COMMISSION .
17 ACCORDING TO ARTICLE 7 ( 3 ) THE COMMISSION MUST SEND A COPY OF THE APPLICATION TO THE MEMBER STATES TOGETHER WITH THE RELEVANT DOCUMENTATION ; ACCORDING TO ARTICLE 7 ( 5 ), IF A MEMBER STATE HAS SENT THE COMMISSION OBJECTIONS REGARDING THE DUTY-FREE IMPORTATION OF THE INSTRUMENT OR APPARATUS UNDER CONSIDERATION , THE COMMISSION MUST REFER THE MATTER TO A GROUP OF EXPERTS COMPOSED OF REPRESENTATIVES OF ALL THE MEMBER STATES , WHO MEET WITHIN THE FRAMEWORK OF THE COMMITTEE ON DUTY-FREE ARRANGEMENTS IN ORDER TO EXAMINE THE MATTER . UNDER ARTICLE 7 ( 6 ), THE COMMISSION MUST ADOPT A DECISION DECLARING WHETHER OR NOT THE INSTRUMENT OR APPARATUS IN QUESTION FULFILS THE CONDITIONS REQUIRED FOR DUTY-FREE ADMISSION , IN ACCORDANCE WITH THE RESULT OF THE EXAMINATION BY THE GROUP OF EXPERTS .
18 WITH REGARD TO THE IMPLEMENTATION OF THE PROCEDURE IN THIS CASE , IT APPEARS FROM THE FIRST AND SECOND RECITALS IN THE PREAMBLE TO THE DECISION AT ISSUE THAT THE COMMISSION INITIATED THE PROCEDURE AT THE REQUEST OF THE NETHERLANDS AND THAT A GROUP OF EXPERTS COMPOSED OF REPRESENTATIVES OF ALL THE MEMBER STATES MET ON 9 JULY 1981 WITHIN THE FRAMEWORK OF THE COMMITTEE ON DUTY-FREE ARRANGEMENTS TO EXAMINE THE MATTER .
19 BEFORE THE TARIEFCOMMISSIE , HOWEVER , THE INSTITUTE POINTED OUT THAT THE REASONS ON WHICH THE DECISION OF THE COMMISSION REFUSING ITS APPLICATION WAS BASED WERE NOT COMMUNICATED TO IT .
20 IT SHOULD BE NOTED THAT THE COMMISSION ' S IMPLEMENTING REGULATION NO 2784/79 PROVIDES NEITHER FOR THE PARTICIPATION OF THE APPLICANT FOR EXEMPTION IN THE EXAMINATION OF EQUIVALENCE CARRIED OUT BY THE COMMITTEE ON DUTY- FREE ARANGEMENTS , AN EXAMINATION WHICH IS BASICALLY ONLY AN EXCHANGE OF VIEWS BETWEEN THE EXPERTS OF THE MEMBER STATES , NOR FOR A RIGHT ON THE PART OF THE APPLICANT TO MAKE SUBMISSIONS BEFORE THE COMMISSION ADOPTS THE DECISION DECLARING WHETHER OR NOT THE INSTRUMENT OR APPARATUS FULFILS THE CONDITIONS REQUIRED FOR DUTY-FREE ADMISSION .
21 THAT DECISION IS ADDRESSED ONLY TO THE MEMBER STATES ; UNDER ARTICLE 191 OF THE TREATY IT IS NOTIFIED ONLY TO THE MEMBER STATES AND TAKES EFFECT UPON THAT NOTIFICATION . CONVERSELY IT IS NOT NOTIFIED TO THE APPLICANT FOR EXEMPTION AND IS NOT ONE OF THE MEASURES WHOSE PUBLICATION IS REQUIRED BY THE TREATY . EVEN IF IN PRACTICE THE DECISION IS IN FACT PUBLISHED IN THE OFFICIAL JOURNAL OF THE COMMUNITIES , ITS WORDING DOES NOT NECESSARILY ENABLE THE APPLICANT TO ASCERTAIN THAT IT WAS TAKEN WITH REFERENCE TO THE PROCEDURE INITIATED BY HIM .
22 CONSEQUENTLY , THE INSTITUTE DOES NOT HAVE THE RIGHT TO DEMAND INFORMATION FROM THE COMMISSION REGARDING THE BASIS FOR ITS DECISION .
23 AT THE HEARING THE INSTITUTE ALSO ARGUED THAT THE UNDERTAKING WHICH CARRIED OUT THE SUPPLEMENTARY STUDY CITED BY THE NETHERLANDS GOVERNMENT DURING THE MEETING OF THE GROUP OF EXPERTS , PHILIPS NEDERLAND BV , WAS NOT AN INDEPENDENT EXPERT SINCE IT MANUFACTURES THE APPARATUS WHOSE EQUIVALENCE TO THE IMPORTED APPARATUS WAS IN ISSUE .
24 IT SHOULD BE RECALLED THAT THE PROCEDURE PROVIDED FOR IN ARTICLE 7 ( 5 ) OF REGULATION NO 2784/79 REQUIRES THAT THE OBJECTIONS OF A MEMBER STATE REGARDING THE DUTY-FREE IMPORTATION OF THE INSTRUMENT OR APPARATUS UNDER CONSIDERATION MUST INCLUDE A STATEMENT OF THE GROUNDS FOR THE OBJECTION AND THAT THOSE GROUNDS MUST INDICATE THE EXACT TYPE OF THE INSTRUMENTS OR APPARATUSES MANUFACTURED IN THE COMMUNITY WHICH ARE REGARDED AS HAVING A SCIENTIFIC VALUE EQUAL TO THAT FOR WHICH DUTY-FREE ADMISSION IS REQUESTED , TOGETHER WITH THE NAME OR BUSINESS NAME AND ADDRESS OF THE COMMUNITY FIRM OR FIRMS WHO CAN SUPPLY THEM . IN THE LATTER CASE , THE MEMBER STATE CONCERNED MUST PROVIDE THE COMMISSION WITH TECHNICAL LITERATURE RELATING TO THE INSTRUMENTS OR APPARATUSES MANUFACTURED IN THE COMMUNITY .
25 THOSE PROVISIONS DO NOT , HOWEVER , REQUIRE THAT THE AUTHOR OF THAT LITERATURE BE AN ' ' INDEPENDENT EXPERT ' ' . THE MEMBER STATE CONCERNED IS ENTITLED TO SUBMIT TO THE COMMISSION SUCH LITERATURE AS IT MAY SEE FIT , AND IS NOT BOUND BY ANY SUPPLEMENTARY CONDITIONS REGARDING THE ORIGIN OR CONTENT OF THAT LITERATURE .
26 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE MANNER IN WHICH THE COMMISSION IMPLEMENTED THE PROCEDURE LAID DOWN BY THE PROVISIONS REFERRED TO WAS IN NO WAY IMPROPER .
THE APPLICATION OF THE SUBSTANTIVE CRITERIA
27 WITH REGARD TO THE SUBSTANCE OF THE MATTER , ARTICLE 3 ( 1 ) ( B ) OF REGULATION NO 1798/75 , AS AMENDED BY ARTICLE 1 ( 1 ) OF REGULATION NO 1027/79 , PROVIDES THAT SCIENTIFIC INSTRUMENTS AND APPARATUS NOT INCLUDED IN ARTICLE 2 AND IMPORTED EXCLUSIVELY FOR NON-COMMERCIAL PURPOSES MAY BE IMPORTED FREE OF COMMON CUSTOMS TARIFF DUTIES PROVIDED THAT ' ' INSTRUMENTS OR APPARATUS OF EQUIVALENT SCIENTIFIC VALUE ARE NOT BEING MANUFACTURED IN THE COMMUNITY ' ' . ACCORDING TO THE THIRD INDENT OF ARTICLE 3 ( 3 ) OF THE REGULATION , FOR THE PURPOSES OF THAT PROVISION ' ' EQUIVALENT SCIENTIFIC VALUE ' ' IS TO BE ASSESSED ' ' BY COMPARING THE ESSENTIAL TECHNICAL CHARACTERISTICS OF THE INSTRUMENT OR APPARATUS IN RESPECT OF WHICH APPLICATION IS MADE FOR THE EXEMPTION REFERRED TO IN ARTICLE 4 WITH THOSE OF THE CORRESPONDING INSTRUMENT OR APPARATUS MANUFACTURED IN THE COMMUNITY IN ORDER TO DERTERMINE WHETHER THE LATTER COULD BE USED FOR THE SAME SCIENTIFIC PURPOSES AS THOSE FOR WHICH THE INSTRUMENT OR APPARATUS THAT IS THE SUBJECT OF THE APPLICATION FOR EXEMPTION IS INTENDED AND WHETHER ITS PERFORMANCE WOULD BE COMPARABLE ' ' .
28 ACCORDING TO ARTICLE 5 ( 2 ) OF THE COMMISSION ' S IMPLEMENTING REGULATION NO 2784/79 , MOREOVER : ' ' IN MAKING THE COMPARISON PROVIDED FOR IN THE THIRD INDENT OF ARTICLE 3 ( 3 ) OF REGULATION ( EEC ) NO 1798/75 , ONLY SUCH TECHNICAL CHARACTERISTICS AS HAVE A DECISIVE INFLUENCE ON THE OUTCOME OF THE SPECIFIC WORK PLANNED MAY BE REGARDED AS ' ESSENTIAL ' . ' ' IN MAKING THAT COMPARISON NO ACCOUNT IS TO BE TAKEN OF , INTER ALIA , ' ' THE FACT THAT AN INSTRUMENT OR APPARATUS IS ABLE TO ACHIEVE PERFORMANCES SUPERIOR TO THOSE WHICH ARE NECESSARY FOR A PROPER EXECUTION OF THE SPECIFIC WORK TO BE CARRIED OUT ' ' .
29 AS THE COURT HAS PREVIOUSLY HELD , THE QUESTION WHETHER THE INSTRUMENTS IN QUESTION ARE EQUIVALENT MUST NOT BE DECIDED SOLELY ON THE BASIS OF THE TECHNICAL SPECIFICATIONS WHICH THE USER DESCRIBED IN HIS APPLICATION AS BEING NECESSARY FOR HIS RESEARCH BUT PRIMARILY ON THE BASIS OF AN OBJECTIVE ASSESSMENT OF THEIR CAPACITY TO CARRY OUT THE EXPERIMENTS FOR WHICH THE USER INTENDED TO USE THE IMPORTED INSTRUMENTS .
30 IN THAT REGARD THE DECISION IN QUESTION SIMPLY STATES THAT APPARATUSES OF SCIENTIFIC VALUE EQUIVALENT TO THAT OF THE JEM-200 CX , CAPABLE OF BEING USED FOR THE SAME PURPOSES , ARE CURRENTLY BEING MANUFACTURED IN THE COMMUNITY , AND GIVES THE NAME AND ADDRESS OF THE FIRM ABLE TO SUPPLY THEM .
31 IN ITS WRITTEN OBSERVATIONS , HOWEVER , THE COMMISSION INDICATED THAT IT WAS PRECISELY ON THE BASIS OF THE CRITERIA MENTIONED ABOVE THAT IT EXAMINED THE EQUIVALENCE OF THE TWO APPARATUSES IN QUESTION IN COLLABORATION WITH THE NATIONAL EXPERTS WHO MET WITHIN THE FRAMEWORK OF THE COMMITTEE ON DUTY-FREE ARRANGEMENTS DURING ITS 77TH MEETING AT BRUSSELS ON 9 AND 10 JULY 1981 . IN PARTICULAR THE COMPARISON CARRIED OUT FOR THE PURPOSE OF ASSESSING WHETHER OR NOT THE APPARATUSES WERE EQUIVALENT WAS NOT MADE IN THE ABSTRACT ON THE BASIS OF CERTAIN CHARACTERISTICS OF THE APPARATUSES IN QUESTION BUT PURELY WITH REGARD TO THE RESEARCH TO BE CARRIED OUT AND THE PARTICULAR PURPOSES FOR WHICH THE APPLICANT WISHED TO USE THE MICROSCOPE ; THE COMMISSION CONFIRMED THAT STATEMENT IN ITS REPLY TO THE QUESTION PUT TO IT BY THE COURT .
32 DURING THE PROCEEDINGS BEFORE THE COURT NO FACTOR OF SUCH A KIND AS TO CAST DOUBT UPON THE COMMISSION ' S STATEMENT HAS COME TO LIGHT . IN EXAMINING THE EQUIVALENCE OF THE TWO APPARATUSES IN QUESTION THE COMMISSION AND THE GROUP OF EXPERTS WERE ALSO RIGHT TO BASE THEMSELVES ON THE DEFINITION OF THE EXPERIMENTS GIVEN IN THE APPLICATION FOR DUTY-FREE ADMISSION , SINCE THE WORDING WHICH APPEARS IN THE FIRST RECITAL TO THE PREAMBLE TO THE DECISION IN QUESTION WAS ONLY A SLIGHTLY MORE PRECISE EXPRESSION OF THE SAME SCIENTIFIC PURPOSES . SINCE THE COMPARISON MUST BE BASED ON THE INFORMATION GIVEN IN THAT RESPECT BY THE APPLICANT AT THE TIME OF MAKING ITS APPLICATION , THE DIFFERENT DESCRIPTION OF THE RESEARCH PROJECT PRESENTED AT THE HEARING BY THE INSTITUTE CANNOT BE TAKEN INTO CONSIDERATION .
33 WITH REGARD TO THE INSTITUTE ' S SUBMISSION THAT COMPARATIVE TESTS OF THE TWO APPARATUSES IN QUESTION SHOWED THAT THE IMPORTED APPARATUS WAS SUPERIOR TO THAT MANUFACTURED IN THE COMMUNITY , IT IS NECESSARY TO REFER , AS THE COMMISSION RIGHTLY DID , TO THE PROVISIONS OF ARTICLE 5 ( 2 ) OF REGULATION NO 2784/79 , ACCORDING TO WHICH PERFORMANCES SUPERIOR TO THOSE WHICH ARE NECESSARY FOR THE PROPER EXECUTION OF THE SPECIFIC WORK TO BE CARRIED OUT ARE NOT TO BE TAKEN INTO ACCOUNT .
34 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT EXAMINATION OF THE FACTS PRESENTED TO THE COURT WITH REGARD TO THE EXAMINATION OF THE EQUIVALENCE OF THE TWO APPARATUSES IN QUESTION HAS DISCLOSED NO FACTOR ESTABLISHING THE EXISTENCE OF MANIFEST ERROR OR MISUSE OF POWER AFFECTING THE VALIDITY OF THE DECISION IN QUESTION .
THE FAILURE TO STATE ADEQUATE GROUNDS
35 THE TARIEFCOMMISSIE , AND THE INSTITUTE IN ITS OBSERVATIONS BEFORE THAT COURT , POINTED OUT THAT THE STATEMENT OF THE GROUNDS FOR THE DECISION IN QUESTION WAS INADEQUATE INASMUCH AS THE REASONS FOR THE COMMISSION ' S ASSESSMENT WERE NOT EXPLAINED IN GREATER DETAIL .
36 IN ITS OBSERVATIONS THE ITALIAN GOVERNMENT EMPHASIZED THE IMPORTANCE OF THE COMMISSION ' S DECISIONS FOR ALL THE MEMBER STATES ; THEY SERVE NOT ONLY TO RESOLVE SPECIFIC CASES BUT ALSO TO ENSURE UNIFORMITY OF TREATMENT IN ALL THE MEMBER STATES OF THE COMMUNITY . THEY SHOULD THEREFORE PROVIDE SUFFICIENT INFORMATION REGARDING THE REASONS FOR THE GRANT OR REFUSAL OF EXEMPTION .
37 IN THIS CASE THE DECISION SHOULD IN PARTICULAR HAVE INDICATED THAT THE DIFFERENCE BETWEEN THE TWO APPARATUSES WHICH WAS ALLEGED BY THE INSTITUTE EITHER DOES NOT EXIST OR IS WITHOUT IMPORTANCE FOR THE RESEARCH ACTIVITY ENVISAGED .
38 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 .
39 IN THIS CASE THE COURT FINDS THE STATEMENT OF GROUNDS FOR THE DECISION IN QUESTION SOMEWHAT LACONIC BUT CONSIDERS THAT IT NONETHELESS SATISFIES THE MINIMUM REQUIREMENT OF ARTICLE 190 OF THE TREATY TAKING INTO ACCOUNT THE FACT THAT THE DEICISION IS ADDRESSED TO THE MEMBER STATES WHICH TOOK PART IN THE MEETINGS OF THE GROUP OF EXPERTS AND ARE THEREFORE SUFFICIENTLY FAMILIAR WITH THE DETAILS OF THE CASE TO BE ABLE TO ASSESS THE SCOPE OF THE DECISION , AND THAT IT ALSO CONTAINS THE INDISPENSABLE ELEMENTS WHICH PERMIT THE SCIENTIFIC ESTABLISHMENT CONCERNED TO ESTABLISH WHETHER THE DECISION IS VITIATED BY A MANIFEST ERROR OR BY MISUSE OF POWER .
40 IF , MOREOVER , THE SCIENTIFIC ESTABLISHMENT CONCERNED DECIDES TO BRING THE MATTER BEFORE A NATIONAL COURT , THAT COURT MAY ALWAYS INQUIRE INTO THE POSSIBILITY OF MANIFEST ERROR OR OF MISUSE OF POWER AND , IF THAT INQUIRY SEEMS TO SUPPORT THE ARGUMENT OF THE SCIENTIFIC ESTABLISHMENT , REFER THE MATTER TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING .
41 IT FOLLOWS FROM THE FOREGOING THAT THE REPLY TO THE NATIONAL COURT MUST BE THAT CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF COMMISSION DECISION 81/843 OF 8 OCTOBER 1981 .
Decision on costs
COSTS
42 THE COSTS INCURRED BY THE ITALIAN AND THE NETHERLANDS GOVERNMENTS AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH 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 ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS ,
THE COURT ( SECOND CHAMBER )
IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE TARIEFCOMMISSIE BY ORDER OF 31 DECEMBER 1982 , HEREBY RULES :
CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF COMMISSION DECISION 81/843 OF 8 OCTOBER 1981 .
Full & Egal Universal Law Academy