The dispute in the main proceedings relates to the grant of an exemption from customs duty for glass flasks, imported by the applicant and intended for the preservation and cultivation in a sterile medium of tissue cultures of human cancer cells, which it is claimed should be classified as scientific instruments or apparatus. The legal basis for the importation of those instruments and apparatus is Regulation 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).

That regulation is intended to give effect in the Community to the Florence Agreement which was drawn up under the auspices of the United Nations Educational, Scientific and Cultural Organization. According to Article 1 of that agreement, which entered into force in 1952,

Annex D to the agreement includes, subject to certain reservations, scientific instruments or apparatus intended exclusively for educational purposes or for pure scientific research.

Consequently, in order to facilitate the free exchange of ideas and scientific research within the Community, the Council adopted Regulation No 1798/75 by virtue of which certain educational, scientific or cultural materials may be imported into the Community free of Common Customs Tariff duties. Whereas under Article 1 of Regulation No 1798/75 certain of those materials are admitted free of Common Customs Tariff duties whatever their intended use and under Article 2 of the same regulation other materials must be intended ither for certain public establishments and organizations or for certain other duly approved establishments and organizations, by virtue of Article 3 (1) of the regulation a third category of scientific instruments and apparatus not referred to in Articles 1 and 2 thereof may be admitted free of customs duties provided that they are imported exclusively for educational purposes or for pure scientific research. That provision concerns instruments and apparatus which:

In order to qualify for duty-free importation under Article 3 (1) of Regulation No 1798/75, the establishment or organization for which the articles arc intended must therefore establish that the import in question relates to a scientific instrument or apparatus intended exclusively for educational purposes or for pure scientific research.

The plaintiff in the main proceedings, Ludwig-Maximilians-Universität München, imported glass flasks into the Federal Republic of Germany on 24 February 1977. According to the information furnished by the plaintiff, the flasks are made of flint glass, a material which even during long storage discharges no substances into the alkaline medium. The flasks also have a flat base, which enables the cells to grow, and a special lip, constructed specifically for tissue culture media and making it possible to pour out the solutions without their running down the side of the flask, which is very important on account of the stringent requirements regarding sterility.

When applying for clearance to release the goods into free circulation, the plaintiff asked the customs office to grant exemption from customs duty for them. The Hauptzollamt München-West initially exempted the goods from customs duty as research material, subject to subsequent verification. On the strength of an examination conducted by the Zolltechnische Prüfungs- und Lehranstalt (Customs Laboratory and Training College) in Munich as to whether the conditions in Regulation No 1798/75 for duty-free importation were satisfied, however, the defendant served a notice of reassessment dated 27 June 1977, making a retroactive demand for customs duty amounting to DM 357.20, together with the proportionate import turnover tax payable thereon, amounting to DM 39.20. The reason stated was that the glass flasks in question did not have the characteristics of instruments, apparatus or utensils (the latter word — “Gerate — appears in the German version of Regulation No 1798/75). The plaintiff lodged an objection with the Hauptzollamt München-West, the defendant in the main proceedings, against the imposition of customs duty and, after that objection was rejected, brought an action against the defendant before the Finanzgericht München.

In those proceedings, the plaintiff claimed that the imported glass flasks should be regarded as scientific instruments, apparatus or utensils within the meaning of the German version of Regulation No 1798/75, since they should be considered to be research instruments or utensils. Instrument is defined in specialized dictionaries as a means, utensil or precision tool and consequently applies to the imported glass flasks. Moreover, the goods in question are utensils (Geräte) within the meaning of Regulation No 1798/75 since that word is understood to refer to tools, items of equipment or articles for everyday use, machine, accessories and utensils (Utensilien).

Before the national court the defendant denied that the glass flasks in question were of the scientific nature referred to in Article 3 of Regulation No 1798/75. It referred to the Der Neue Herder dictionary which defines instruments as tools (Werkzeuge) serving technical, scientific or artistic purposes whereas tools are defined as working utensils (Arbeitsgeräte) by means of which an activity or job is performed. The Großer Duden foreign language dictionary also describes an instrument as a means, utensil or precision tool (for technical or scientific work).

Consequently — again according to the defendant — an instrument is a product having the characteristics of a tool with which a job or an activity may be performed, during which the instrument must in some way actively affect the article or material to be treated. Such is not the case with glass flasks which serve in a merely passive manner for the growth and preservation of culture media in sterile conditions. Neither are they utensils of the kind with which Article 3 (1) of Regulation No 1798/75 is concerned but at the most are equipment (Gerätschaften) which is not covered by the provisions in question. Those provisions are not intended to grant outright exemption from customs duty for articles but only for scientific instruments, apparatus and utensils. Moreover, only scientific instruments or apparatus (instruments et appareils scientifiques) are mentioned in the French and English versions of the article in question. In the German version, the word utensils (Geräte) is therefore only a linguistic expedient for supplementing and rounding off the terms Instrumente and Apparate.

By order of 8 March 1983 the Finanzgericht München stayed the proceedings and decided to submit the following question to the Court for a preliminary ruling:

In the statement of grounds of its order, the Finanzgericht points out that the most important question is whether the phrase scientific instruments, apparatus is merely a circumlocution for the broad concept of article or whether it refers to a particular type of goods, characterized by specific distinctive features and characteristics. The latter interpretation is supported by the fact that the term article is employed in the regulation not only in Article 3 (1) but also elsewhere; moreover Article 3 (2) contains specific rules for components and accessories and the phrase mentioned above corresponds to the terminology used in the Common Customs Tariff which attributes a narrower meaning to that phrase than to goods or articles. It is difficult to perceive, from the spirit and purpose of Regulation No 1798/75, any valid reason for making the grant of a customs concession for goods dependent on additional features over and above the requirement of particular suitability for scientific research implied by the adjective scientific.

If, in consequence, instruments or apparatus is to be taken to mean goods which are distinguished from other articles by their specific nature, the additional problem arises of definition of the particular criteria on which the distinction is to be based. In these circumstances, regard should be had to the fact that the English and French versions of Article 3 (1) of Regulation No 1798/75 refer only to instruments or apparatus and instruments et appareils respectively and that therefore no independent meaning is to be attributed to the extra word utensil (Gerät) which appears only in the German version of the regulation in question.

In the light of the terminology used in the Common Customs Tariff and on the basis of the connection between the double term instruments and apparatus and the adjective scientific, the principal feature to be taken into account as conferring upon goods the nature of apparatus or instruments is the existence of a mechanism or other devices by means of which a substance may be worked on, processed or otherwise treated or whereby certain physical or chemical states or phenomena (for example temperature or vacuum) may be produced and controlled or else perceived and measured.

On the other hand, it cannot be regarded as sufficient that an item of goods serving only as a receptacle is, in the light of the objective to be attained and by virtue of the properties of the material of which it is made, capable of eliminating interference from ambient factors whilst a substance is being treated or a process is going on. Articles of that kind can be classified as instruments or apparatus only if they are equipped with devices by means of which the nature and intensity of such interference can be determined and controlled or measured.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by the Commission, represented by Jörn Sack, a member of its Legal Department.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

By order of 5 October 1983, the Court assigned the case to the Second Chamber.