Opinion of Mr Advocate General Mancini delivered on 7 March 1985. # Land Niedersachsen v Hauptzollamt Friedrichshafen. # Reference for a preliminary ruling: Finanzgericht Baden-Württemberg - Germany. # Common Customs Tariff - Duty-free admission for scientific instruments and apparatus - Accessories. # Case 51/84.

1. 

Once again the Court is called upon to interpret 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).

In 1979 the Land Niedersachsen imported from the United States of America into the Federal Republic of Germany an ‘AS-50’ auto-sampler manufactured by the Perkin-Elmer Corporation for use at the Institut für tropischen und subtropischen Pflanzenbau [Tropical and Subtropical Plant Institute] in measurements carried out with an atomabsorption spectrophotometer. The spectrophotometer, an ‘AAS M 432’, was manufactured by Bodenseewerk Perkin-Elmer & Co. GmbH of Überlingen, a German subsidiary of the United States undertaking.

The case was examined by the Zolltechnische Prüfungs- und Lehranstalt [Customs Laboratory and Training College] in Berlin and subsequently the Hauptzollamt [Principal Customs Office] Friedrichshafen refused to grant an exemption from customs duty for the imported apparatus. It found, as is stated in the reasons for its decision, that the spectrophotometer was manufactured in the Community and that the auto-sampler could not be regarded as an independent scientific instrument. The importer then brought an action against that decision before the Finanzgericht [Finance Court] Baden-Württemberg. It maintained that the autosampler was an accessory of the spectrophotometer; the Hauptzollamt, however, contended that only products specially designed for the main apparatus could be regarded as accessories and that as such they could not be regarded as independent scientific instruments.

With those arguments before it the Finanzgericht commissioned an expert opinion from Professor H. Sternbach of the Max-Planck Institute for Experimental Medicine in order to establish the precise nature of the auto-sampler. He stated that the auto-sampler was in the mechanical and technical sense an accessory of the spectrophotometer, the scientific nature of which was not in doubt. A large number of measurements were taken with the spectrophotometer and the auto-sampler made it possible for the solutions to be measured to be put in consistently. It therefore performed a function which could not be carried out manually while ensuring the necessary reliability of the measurements. In other words, the spectrophotometer was capable of running without an auto-sampler, but the auto-sampler was necessary for it to perform the specific function for which it had been designed by the manufacturers.

By an order dated 7 February 1984 the national court stayed the proceedings and referred the following questions to this Court for a preliminary ruling under Article 177 of the EEC Treaty:

2. 

There can be no doubt that of all those questions it is Question 3 that is decisive: that is, the question whether Regulation No 1798/75 enables accessories to be imported duty free when the apparatus for which they are intended has not been imported. The answer to that question must logically precede the answers to the others, which concern the definition of an accessory for if Question 3 is answered in the negative, Questions 1, 2 and 4 become redundant or at least irrelevant to this case.

In fact Question 3 cannot be answered otherwise than in the negative. That conclusion is based on the Court's judgment of 15 November 1984 in Case 236/83 Universität Hamburg v Hauptzollamt München-West [1984] ECR 3849, in which an answer was given to precisely the same question. The Court, which had been asked to construe the phrase ‘scientific instruments and apparatus which qualify for duty-free admission’ (Article 3 (2) of Regulation No 1798/75) specifically with regard to the customs treatment of components intended for incorporation in a scientific installation constructed in the Community, answered that it ‘must be interpreted as meaning that components, spare parts and accessories may be imported free of duty provided that they are intended for scientific instruments or apparatus which are, or have been, admitted free of duty. Duty-free admission may not, however, be granted where the components are intended to be incorporated in a scientific installation constructed in the Community’ (paragraph 28 of the decision, emphasis added).

That judgment may appear illogical and even unjust because it favours those who import ‘complete’ scientific instruments and penalizes those who buy equipment on the Community market and import from outside the Community only those parts which are not otherwise available. The Court gives the following explanation for that decision: ‘where it appears that Community industry is capable of constructing a scientific unit of equipment in its entirety, except for certain ... parts, the duty-free admission of high-value components may, far from promoting technological progress in the Community, instead constitute an incentive to keep outside the Community certain scientifically and technically important production facilities. In those circumstances, the refusal to admit the components in question free of duty may therefore act as a useful incentive to secure the transfer of such production to the Community’ (paragraph 27 of the decision).

Thus we have logic and equity on one side and the general interest on the other. The dilemma is as old as the law itself and the Court has resolved it in favour of the interests of the Community, in this case its technological development. If the Community were a complete and firmly established edifice like the States which make it up I might have doubts as to that conclusion. However, as that is not the case — its interests have few allies and they are less powerful than the forces ranged on the other side — I wholeheartedly commend the position adopted by the Court.

3. 

For the reasons I have stated above, I propose that the Court should give the following answer to Question 3 submitted by the Finanzgericht Baden-Württemberg by order of 7 February 1984 in the proceedings between Land Niedersachsen and Hauptzollamt Friedrichshafen:

The phrase ‘scientific instruments and apparatus which qualify for duty-free admission’ (Article 3 (2) of Regulation No 1798/75) must be interpreted as meaning that accessories may be imported free of duty provided that they are intended for instruments or apparatus which are, or have been, admitted free of duty. Duty-free admission may not, however, be granted where the accessory in question is intended for an instrument or apparatus constructed in the Community.

Having regard to that answer, I propose that the Court should not rule upon the other questions submitted to it.