1 BY AN ORDER OF 13 DECEMBER 1983 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 6 JANUARY 1984 , THE HESSISCHES FINANZGERICHT ( FINANCE COURT , HESSE ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION CONCERNING THE VALIDITY OF COMMISSION DECISION 82/549/EEC OF 27 JULY 1982 ESTABLISHING THAT THE APPARATUS DESCRIBED AS ' NICOLET DATA ACQUISITION SYSTEM , MODEL MED-80 ' MAY NOT BE IMPORTED FREE OF COMMON CUSTOMS TARIFF DUTIES ( OFFICIAL JOURNAL 1982 , L 237 , P . 41 ).
2 THE QUESTION WAS RAISED IN A DISPUTE BETWEEN NICOLET INSTRUMENT GMBH ( HEREINAFTER REFERRED TO AS ' NICOLET ' ), A GERMAN SUBSIDIARY OF A UNITED STATES MANUFACTURER , AND THE HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) FRANKFURT AM MAIN AIRPORT .
3 IT IS APPARENT FROM THE DOCUMENTS BEFORE THE COURT THAT IN 1980 NICOLET IMPORTED FROM THE UNITED STATES FOUR COMPUTER SYSTEMS CORRESPONDING TO THE ABOVE DESCRIPTION WHICH WERE INTENDED FOR THE NEUROLOGICAL DEPARTMENT OF THE UNIVERSITY OF ERLANGEN , THE ZOOLOGICAL INSTITUTE OF THE UNIVERSITY OF BONN AND THE HESSE SPORTS MEDICAL CENTRE . IN ACCORDANCE WITH THE NORMAL PRACTICE IN SUCH CASES , THE HAUPTZOLLAMT FRANKFURT AM MAIN AIRPORT PROVISIONALLY ADMITTED THE COMPUTERS FREE OF COMMON CUSTOMS TARIFF DUTIES .
4 HOWEVER , AFTER FURTHER INVESTIGATION THE HAUPTZOLLAMT CLAIMED , BY NOTICES OF ASSESSMENT DATED 8 SEPTEMBER , 30 SEPTEMBER AND 5 OCTOBER 1981 , PAYMENT OF A TOTAL OF DM 29 602.74 IN CUSTOMS DUTIES FOR THE IMPORTATION OF THE COMPUTERS IN QUESTION ON THE GROUND THAT , HAVING REGARD TO THEIR CHARACTERISTICS , THEY WERE NOT SPECIFICALLY SUITED TO SCIENTIFIC RESEARCH .
5 IN THE LIGHT OF THE OBJECTIONS RAISED BY NICOLET , THE FEDERAL REPUBLIC OF GERMANY REFERRED THE MATTER TO THE COMMISSION IN ACCORDANCE WITH THE PROCEDURE PROVIDED FOR BY 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 COUNCIL REGULATION ( EEC ) NO 1027/79 OF 8 MAY 1979 ( OFFICIAL JOURNAL 1979 , L 134 , P . 1 ) - AND BY REGULATION ( EEC ) NO 3195/75 OF THE COMMISSION OF 2 DECEMBER 1975 LAYING DOWN PROVISIONS FOR THE IMPLEMENTATION OF REGULATION NO 1798/75 OF THE COUNCIL ( OFFICIAL JOURNAL 1975 , L 316 , P . 17 ), AS AMENDED BY COMMISSION REGULATION ( EEC ) NO 2784/79 OF 12 DECEMBER 1979 ( OFFICIAL JOURNAL 1979 , L 318 , P . 32 ).
6 IT WAS ON THE BASIS OF COMMISSION DECISION 82/549/EEC , WHICH WAS ADOPTED ON THE GROUND THAT THE APPARATUS IN QUESTION COULD NOT BE REGARDED AS A SCIENTIFIC APPARATUS , THAT THE GERMAN AUTHORITIES REJECTED THE OBJECTION RAISED BY NICOLET , WHEREUPON THE LATTER BROUGHT AN ACTION CHALLENGING THEIR DECISION BEFORE THE HESSISCHES FINANZGERICHT . THAT COURT DECIDED TO REFER TO THE COURT OF JUSTICE THE FOLLOWING QUESTION FOR A PRELIMINARY RULING :
' IS COMMISSION DECISION 82/549/EEC OF 27 JULY 1982 IN RELATION TO THE APPARATUS DESCRIBED AS ' ' NICOLET DATA ACQUISITION SYSTEM , MODEL MED-80 ' ' VALID?
'
7 IN THE WRITTEN OBSERVATIONS WHICH IT SUBMITTED TO THE COURT , THE COMMISSION EXPRESSED CERTAIN RESERVATIONS AS REGARDS THE ' ADMISSIBILITY ' OF THE REFERENCE FOR A PRELIMINARY RULING . HOWEVER , IT WITHDREW ITS OBJECTIONS DURING THE ORAL PROCEDURE . THE COURT THEREFORE CONSIDERS THAT IT IS UNNECESSARY TO EXAMINE THEM .
8 NICOLET CHALLENGES IN PARTICULAR THE COMMISSION ' S ASSESSMENT OF THE SCIENTIFIC CHARACTER OF THE APPARATUS IN QUESTION . SUCH APPARATUS IS SO HIGHLY SPECIALIZED AND SO COMPLEX THAT ONLY THE RESEARCHERS WHO USE IT CAN ASSESS ITS CHARACTERISTICS . THE PLAINTIFF SUBMITTED A REPORT PREPARED BY PROFESSOR PEPER OF SAARBRUCKEN UNIVERSITY WHO HAD EXAMINED AND TESTED THE MED-80 APPARATUS . IT IS APPARENT FROM THAT REPORT THAT THE APPARATUS IN QUESTION IS UNDOUBTEDLY INTENDED FOR SCIENTIFIC RESEARCH SINCE IT IS ' TYPICALLY CONSTRUCTED FOR THE RECEPTION AND PROCESSING OF BIOLOGICAL SIGNALS IN RESEARCH LABORATORIES ' AND SINCE THE USE OF THAT COMPUTER IN OTHER AREAS WOULD BE UNECONOMIC .
9 IT MUST BE REMEMBERED THAT ACCORDING TO ARTICLE 3 ( 1 ) AND ( 3 ) OF REGULATION NO 1798/75 OF THE COUNCIL , AS AMENDED BY COUNCIL REGULATION NO 1027/79 , SCIENTIFIC INSTRUMENTS AND APPARATUS IMPORTED EXCLUSIVELY FOR NON-COMMERCIAL PURPOSES MAY BE ADMITTED FREE OF COMMON CUSTOMS TARIFF DUTIES PROVIDED THAT , BY REASON OF THEIR OBJECTIVE TECHNICAL CHARACTERISTICS AND THE RESULTS WHICH THEY MAKE IT POSSIBLE TO OBTAIN , THEY ARE MAINLY OR EXCLUSIVELY SUITED TO SCIENTIFIC ACTIVITIES .
10 THOSE PROVISIONS HAVE BEEN SUPPLEMENTED BY ARTICLE 5 ( 1 ) OF COMMISSION REGULATION NO 2784/79 , IMPLEMENTING REGULATION NO 1798/85 , WHICH PROVIDES THAT ' 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 ' .
11 THE SECOND SUBPARAGRAPH OF ARTICLE 5 ( 1 ) OF THE SAME REGULATION PROVIDES THAT ' WHERE IT IS NOT POSSIBLE TO ESTABLISH CLEARLY ON THE BASIS OF ITS OBJECTIVE TECHNICAL CHARACTERISTICS WHETHER AN INSTRUMENT OR APPARATUS IS TO BE REGARDED AS A SCIENTIFIC INSTRUMENT OR APPARATUS , REFERENCE SHALL BE MADE TO THE GENERAL USES IN THE COMMUNITY OF INSTRUMENTS OR APPARATUS OF THE TYPE FOR WHICH DUTY-FREE ADMISSION IS REQUESTED ' .
12 IT IS APPARENT FROM THOSE PROVISIONS , TAKEN TOGETHER , THAT THE COMMISSION IS UNDER AN OBLIGATION TO SCRUTINIZE THE OBJECTIVE TECHNICAL CHARACTERISTICS OF THE APPARATUS IN QUESTION IN ORDER TO DETERMINE WHETHER OR NOT IT IS OF A SCIENTIFIC NATURE . ONLY IF IT PROVES IMPOSSIBLE TO DRAW UNEQUIVOCAL CONCLUSIONS FROM THAT EXAMINATION MUST REFERENCE BE MADE TO THE GENERAL USES IN THE COMMUNITY OF APPARATUS OF THE SAME TYPE .
13 IT IS CLEAR FROM THE PREAMBLE TO COMMISSION DECISION 82/549 THAT , HAVING ESTABLISHED THAT THE APPARATUS IN QUESTION CONSTITUTED A DATA ACQUISITION SYSTEM , THE COMMISSION CONSIDERED THAT IT DID NOT DISPLAY THE OBJECTIVE CHARACTERISTICS MAKING IT SPECIFICALLY SUITED TO SCIENTIFIC RESEARCH .
14 WHEN , IN THE COURSE OF THE PROCEEDINGS BEFORE THE COURT , THE COMMISSION WAS REQUESTED TO EXPLAIN ITS PRECISE REASONS FOR COMING TO THAT CONCLUSION , IT STATED IN PARTICULAR THAT A COMPUTER CAN BE REGARDED AS A SCIENTIFIC INSTRUMENT ONLY IF IT IS CONNECTED TO AN APPARATUS WHICH IS INTENDED FOR A SCIENTIFIC PURPOSE AND IS PROGRAMMED EXCLUSIVELY TO OPERATE THAT APPARATUS . IF THAT IS NOT THE CASE , A COMPUTER CANNOT , IN VIEW OF THE DIVERSITY OF ITS FUNCTIONS , BE REGARDED AS AN APPARATUS SPECIFICALLY SUITED TO SCIENTIFIC RESEARCH .
15 IT IS CLEAR FROM THOSE OBSERVATIONS THAT THE COMMISSION DID NOT EXAMINE THE OBJECTIVE TECHNICAL CHARACTERISTICS OF THE APPARATUS IN QUESTION AS REQUIRED BY THE RELEVANT COMMUNITY LEGISLATION AND MERELY APPLIED IN THIS CASE GENERAL CONSIDERATIONS APPLICABLE TO ALL COMPUTERS . ACCORDINGLY , BY ADOPTING A GENERAL APPROACH WHICH EXCLUDED A SCRUTINY OF THE OBJECTIVE CHARACTERISTICS OF THE APPARATUS IN QUESTION , THE COMMISSION HAS INFRINGED THE ABOVE-MENTIONED PROVISIONS OF ARTICLE 3 ( 1 ) AND ( 3 ) OF REGULATION NO 1798/75 , AS AMENDED .
16 IT IS ALSO CLEAR FROM THE WORDING OF DECISION 82/549 THAT IN SUPPORT OF ITS CONTENTION THAT THE APPARATUS IN QUESTION WAS NOT OF A SCIENTIFIC CHARACTER , THE COMMISSION RELIED ON A SECOND GROUND , TO THE EFFECT THAT APPARATUS OF THE SAME KIND IS USED PRINCIPALLY FOR NON-SCIENTIFIC ACTIVITIES .
17 THE AFORESAID PROVISIONS OF THE SECOND SUBPARAGRAPH OF ARTICLE 5 ( 1 ) OF COMMISSION REGULATION NO 2784/79 INDICATE CLEARLY THAT REFERENCE TO THE GENERAL USES IN THE COMMUNITY OF APPARATUS OF THE SAME TYPE IS AN ANCILLARY CRITERION WHICH MAY BE RELIED UPON BY THE COMMISSION ONLY WHERE IT PROVES IMPOSSIBLE TO DRAW AN UNEQUIVOCAL CONCLUSION FROM THE PRINCIPAL CRITERION , NAMELY EXAMINATION OF THE OBJECTIVE CHARACTERISTICS OF THE APPARATUS . SINCE THE COMMISSION DID NOT LAWFULLY APPLY THE PRINCIPAL CRITERION , IT COULD NOT BASE ITS DECISION ON THE SECOND GROUND , CONCERNING THE USE TO WHICH APPARATUS OF THE SAME TYPE IS PUT .
18 ACCORDINGLY , WITHOUT THERE BEING ANY NEED TO GIVE A RULING ON THE OTHER GROUNDS RELIED UPON BY THE APPLICANT TO CHALLENGE THE VALIDITY OF COMMISSION DECISION 82/549 , IT MUST BE HELD THAT THE DECISION IS NOT VALID AND THAT THE COMMISSION MUST RE-EXAMINE THE FILE WITH A VIEW TO MAKING A FRESH ASSESSMENT .
19 IN THE LIGHT OF THOSE CONSIDERATIONS , THE ANSWER TO THE QUESTION SUBMITTED BY THE NATIONAL COURT MUST BE THAT COMMISSION DECISION 82/549 OF 27 JULY 1982 IS NOT VALID .
COSTS
20 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 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 ( THIRD CHAMBER )
IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE HESSISCHES FINANZGERICHT BY AN ORDER OF 13 DECEMBER 1983 , HEREBY RULES :
COMMISSION DECISION 82/549/EEC OF 27 JULY 1982 IS NOT VALID .
