Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. The cases with which this opinion is concerned are two references to the Court for a preliminary ruling by the Hessisches Finanzgericht [Finance Court, Hesse] in actions pending before it between Nicolet Instrument GmbH and the Hauptzollamt [Principal Customs Office] Frankfurt am Main Airport. In particular the national court is seeking a ruling on the validity of two Commission decisions adopted on the basis of the rules relating to the importation of objects of an educational, scientific and cultural nature free of Common Customs Tariff duties. The two measures held that the Nicolet computers were not of a scientific nature and consequently could not be imported into the Community duty-free. The parties to the two main actions are identical and the observations which they have submitted to the Court are drafted in similar language. I can therefore consider the arguments put forward in a single context and in one opinion.

2. Let me first of all summarize the facts of Case 6/84. During the second half of 1980, Nicolet Instrument GmbH, whose registered office is at Offenbach am Main and which is the German subsidiary of an American undertaking of the same name, imported into the Federal Republic of Germany from the United States four computers described as ‘Nicolet Data Acquisition System, model MED-80. Two of the computers were intended for the Neurological Department of the University of Erlangen and the others were for the use of the Zoological Institute of the University of Bonn and the Hesse Sports Medical Centre. The importer requested the competent customs office (at Frankfurt airport) for exemption from duty. At first the customs authorities granted the request, albeit provisionally, but subsequently, after investigations by the Zolltechnische Prüfungs- und Lehranstalt [Customs Laboratory and Training College] in Berlin and Munich, it revoked its decision to grant exemption and by notices of amendment dated 8 and 30 September and 5 October 1981 they claimed payment from Nicolet of more than DM 29000 in customs duties. According to the grounds of its decision the apparatus did not have the objective characteristics making it specifically suited to scientific research.

3. In its written observations the Commission contended:

4. In its third submission, Nicolet maintains that the Commission decisions are based on a patent mistake in assessing the apparatus and a mistake of law, that is to say disregard of the rules which define the scientific nature of an instrument. In support of that claim Nicolet produces two expert opinions. As I have already said, that of Professor Peper states that the apparatus described as Nicolet Data Acquisition System, model MED-80 is conceived for use in research laboratories and although it could be used for other purposes it would be uneconomic to do so. According to Professor Schrader, the work which the apparatus described as Nicolet Data Acquisition and Processing System, model NIC-1180 is capable of performing is far too refined for it to be of any use for industrial and commercial purposes. It is therefore specially adapted for scientific research.

5. In the light of all those considerations I propose that the Court should answer the questions put by the Seventh Senate of the Hessisches Finanzgericht by orders of 13 December 1983 (Case 6/84) and 16 January 1984 (Case 30/84) as follows:

1 Translated from the Italian.