(Community Customs Code Implementing measures Regulation (EEC) No 2454/93 Annex 11 Non-preferential origin of goods Television receivers Concept of substantial processing or working Added value test Validity and interpretation EEC-Turkey Association Agreement and Decision No 1/95 of the Association Council Interpretation)
- The reference for a preliminary ruling concerns the validity of the provisions in column 3 under heading 8528 of the Combined Nomenclature, referred to in Annex 11 to Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1; 'the contested provisions of Annex 11 to Regulation No 2454/93').
- The reference also concerns the interpretation of those provisions.
- It further concerns the interpretation of Article 47 of the Additional Protocol, signed on 23 November 1970 in Brussels and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1973 C 133, p. 17; 'the Additional Protocol'), annexed to the Agreement establishing an Association between the European Economic Community and Turkey signed at Ankara on 12 September 1963 by the Republic of Turkey, on the one part, and by the Member States of the EEC and the Community, on the other part, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 113, p. 1; 'the EEC-Turkey Association Agreement').
- The reference finally concerns the interpretation of Articles 44 to 47 of Decision No 1/95 of the EEC-Turkey Association Council of 22 December 1995, which laid down the conditions for the entry into force of the final phase of the Customs Union (OJ 1996 L 35, p. 1; 'Decision No 1/95').
- This reference has been submitted in the context of proceedings between Asda Stores Ltd ('Asda') and the Commissioners of Her Majesty's Revenue and Customs (the United Kingdom Customs authorities; 'HMRC') concerning anti-dumping duties and value added tax ('VAT') on importation applying to colour television receivers ('CTVs') which are assembled in Turkey and imported into the United Kingdom.
Legal context
The EEC'Turkey Association Agreement
- Article 2(1) of the EEC-Turkey Association Agreement establishes that the aim of the Agreement is to promote the continuous and balanced strengthening of trade and economic relations between the Parties, while taking full account of the need to ensure the accelerated development of the Turkish economy and to improve the level of employment and the living conditions of the Turkish people. Article 2(3) provides that that Association shall comprise a preparatory stage, a transitional stage and a final stage.
- Article 3(1) of the EEC-Turkey Association Agreement provides:
'During the preparatory stage Turkey shall, with aid from the Community, strengthen its economy so as to enable it to fulfil the obligations which will devolve upon it during the transitional and final stages.
The detailed rules for this preparatory stage, in particular those for aid from the Community, are set out in the Provisional Protocol and in the Financial Protocol to this Agreement.'
- Article 6 of the EEC-Turkey Association Agreement reads as follows:
'To ensure the implementation and the progressive development of the Association, the Contracting Parties shall meet in a Council of Association which shall act within the powers conferred upon it by this Agreement.'
- Article 30 of the EEC-Turkey Association Agreement provides:
'The Protocols annexed to this Agreement by common accord of the Contracting Parties shall form an integral part thereof.'
- Under Article 47 of the Additional Protocol:
'1. If, during the period of twenty-two years, the Council of Association, on application by a Contracting Party, finds that dumping is being practised in trade between the Community and [the Republic of] Turkey, it shall address recommendations to the person or persons with whom such practices originate for the purpose of putting an end to them.
2. The injured Party may, after notifying the Council of Association, take suitable protective measures where:
(a) the Council of Association has taken no decision pursuant to paragraph 1 within three months from the making of the application;
(b) despite the issue of recommendations under paragraph 1, the dumping practices continue.
Moreover, where the interests of the injured Party call for immediate action, that Party may, after informing the Council of Association, introduce interim protective measures which may include anti-dumping duties. Such measures shall not remain in force more than three months from the date of the application, or from the date on which the injured Party takes protective measures under (b) of the preceding subparagraph.
3. Where protective measures have been taken under (a) of the first subparagraph of paragraph 2, or under the second subparagraph of that paragraph, the Council of Association may, at any time, decide that such protective measures shall be suspended pending the issue of recommendations under paragraph 1.
The Council of Association may recommend the abolition or amendment of protective measures taken under (b) of the first subparagraph of paragraph 2.
4. Products which originated in or were in free circulation in one of the Contracting Parties and which have been exported to the other Contracting Party shall, on reimportation, be admitted into the territory of the former Contracting Party free of all customs duties, quantitative restrictions or measures having equivalent effect.
The Council of Association may make any appropriate recommendations for the application of this paragraph; it shall be guided by Community experience in this field.'
- Decision No 1/95 establishes a Customs Union between the European Community and Turkey applying in principle to all goods with the exception of agricultural products. It provides for the elimination of customs duties and charges having equivalent effect and for the abolition of quantitative restrictions and measures of equivalent effect.
- Section III of that decision, entitled 'Trade Defence Instruments', reads as follows:
'Article 44
1. The Association Council shall review upon the request of either Party the principle of application of trade defence instruments other than safeguard by one Party in its relations with the other. During any such review, the Association Council may decide to suspend the application of these instruments provided that [the Republic of] Turkey has implemented competition, State aid control and other relevant parts of the acquis communautaire which are related to the internal market and ensured their effective enforcement, so providing a guarantee against unfair competition comparable to that existing inside the internal market.
2. The modalities of implementation of anti-dumping measures set out in Article 47 of the Additional Protocol remain in force.
Article 45
By derogation from the provisions of Section II of Chapter V, the consultation and decision-making procedures referred to in that section shall not apply to trade defence measures taken by either Party.
In the framework of the application of trade policy measures towards third countries, the Parties shall endeavour, through exchange of information and consultation, to seek possibilities for coordinating their action when the circumstances and international obligations of both Parties allow.
Article 46
By derogation from the principle of the free movement of goods laid down in Chapter I, where one Party has taken or is taking anti-dumping measures or other measures pursuant to trade policy instruments as referred to in Article 44 in its relations with the other Party or with third countries, that Party may make imports of the products concerned from the territory of the other Party subject to the application of those measures. In such cases it shall inform the Customs Union Joint Committee accordingly.
Article 47
When completing the formalities involved in importing products of a type covered by trade policy measures, provided for in the preceding Articles, the authorities of the importing State shall ask the importer to indicate the origin of the products concerned on the customs declaration.
Additional supporting evidence may be requested where absolutely necessary because of serious and well-founded doubts in order to verify the true origin of the product in question.'
The Community Customs Code
- Article 22 of Section 1, entitled 'Non-preferential origin [of goods]' of Chapter 2, of Title II of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1; 'the Community Customs Code') provides:
'Articles 23 to 26 define the non-preferential origin of goods for the purposes of:
(a) applying the Customs Tariff of the European Communities with the exception of the measures referred to in Article 20(3)(d) and (e);
(b) applying measures other than tariff measures established by Community provisions governing specific fields relating to trade in goods;
(c) the preparation and issue of certificates of origin.'
- Under Article 23 of the Community Customs Code:
'1. Goods originating in a country shall be those wholly obtained or produced in that country.
2. The expression 'goods wholly obtained in a country' means:
(a) mineral products extracted within that country;
(b) vegetable products harvested therein;
(c) live animals born and raised therein;
(d) products derived from live animals raised therein;
(e) products of hunting or fishing carried on therein;
(f) products of sea-fishing and other products taken from the sea outside a country's territorial sea by vessels registered or recorded in the country concerned and flying the flag of that country;
(g) goods obtained or produced on board factory ships from the products referred to in subparagraph (f) originating in that country, provided that such factory ships are registered or recorded in that country and fly its flag;
(h) products taken from the seabed or subsoil beneath the seabed outside the territorial sea provided that that country has exclusive rights to exploit that seabed or subsoil;
(i) waste and scrap products derived from manufacturing operations and used articles, if they were collected therein and are fit only for the recovery of raw materials;
(j) goods which are produced therein exclusively from goods referred to in subparagraphs (a) to (i) or from their derivatives, at any stage of production.
3. For the purposes of paragraph 2 the expression 'country' covers that country's territorial sea.'
- According to Article 24 of the Community Customs Code:
'Goods whose production involved more than one country shall be deemed to originate in the country where they underwent their last, substantial, economically justified processing or working in an undertaking equipped for that purpose and resulting in the manufacture of a new product or representing an important stage of manufacture.'
- Article 25 of the Community Customs Code provides:
'Any processing or working in respect of which it is established, or in respect of which the facts as ascertained justify the presumption, that its sole object was to circumvent the provisions applicable in the Community to goods from specific countries shall under no circumstances be deemed to confer on the goods thus produced the origin of the country where it is carried out within the meaning of Article 24.'
- Article 26 of the Community Customs Code states:
'1. Customs legislation or other Community legislation governing specific fields may provide that a document must be produced as proof of the origin of goods.
2. Notwithstanding the production of that document, the customs authorities may, in the event of serious doubts, require any additional proof to ensure that the indication of origin does comply with the rules laid down by the relevant Community legislation.'
- Article 249 of the Community Customs Code provides that the Commission shall adopt the measures required for the implementation of the said Code.
Regulation No 2454/93
- Under Article 39 of Regulation No 2454/93:
'In the case of products obtained which are listed in Annex 11, the working or processing referred to in column 3 of the Annex shall be regarded as a process or operation conferring origin under Article 24 of the [Community Customs] Code.
The method of applying the rules set out in Annex 11 is described in the introductory notes in Annex 9.'
- Annex 9 to Regulation No 2454/93, headed 'Introductory notes to the lists of working or processing operations conferring or non-conferring originating status to manufactured products when they are carried out on non-originating materials', contains the following Notes 2 and 3:
'Note 2
2.1. The term 'manufacture' covers any kind of working or processing including 'assembly' or specific operations.
2.2. The term 'material' covers any 'ingredient', 'raw material', 'component' or 'part', etc., used in the manufacture of the product.
2.3. The term 'product' refers to the product being manufactured, even if it is intended for later use in another manufacturing operation.
Note 3
3.1. The working or processing required by a rule in column 3 has to be carried out only in relation to the non-originating materials used. The restrictions contained in a rule in column 3 likewise apply only to the non-originating materials used.
3.2. If a product, made from non-originating materials which has itself acquired originating status during manufacture, is used as a material in the process of manufacture of another product, then the list rule applicable to the product in which it is incorporated does not apply to it.
For example:
Unembroidered fabric may obtain origin by being woven from yarn. If this is then used in making embroidered bed linen, then the percentage value limit imposed on the use of unembroidered fabric does not apply in this case.'
- Annex 11 to Regulation No 2454/93 provides:
CN code
|
Description of products
|
Working or processing carried out on non'originating materials that confers the status of originating products
|
(1)
|
(2)
|
(3)
|
...
ex 8528
|
...
Television receivers, (excluding videotuners, television projection equipment and video monitors), whether or not combined, in the same housing, with radio-broadcast receivers or sound recording or reproducing apparatus
|
...
Manufacture where the increase in value acquired as a result of assembly operations and, if applicable, the incorporation of parts originating in the country of assembly represents at least 45% of the ex-works price of the products
When the 45% rule is not met, the apparatus shall be treated as originating in the country of origin of parts whose ex-works price represents more than 35% of the ex-works price of the apparatus
When the 35% rule is met in two countries, the apparatus shall be treated as originating in the country of origin of parts representing the greater percentage value
|
Regulation No 2584/98
- Article 1 of Council Regulation (EC) No 2584/98 of 27 November 1998 amending Council Regulation (EC) No 710/95 imposing a definitive anti-dumping duty on imports of colour television receivers originating in Malaysia, the People's Republic of China, the Republic of Korea, Singapore and Thailand and collecting definitively the provisional duty imposed (OJ 1998 L 324, p. 1), laid down the rate of anti-dumping duties applicable to television receivers falling within CN ex 8528.
The main proceedings and the questions referred for a preliminary ruling
- Between June 2000 and April 2001, Asda, a United Kingdom company, imported CTVs into the United Kingdom which were assembled in Turkey by Vestel, Electronik Sanayi re Ticavet A. S. ('Vestel'), a company incorporated under Turkish law. Import declarations made by Asda declared that the origin of the goods was Turkey.
- The consignments were accompanied by 'A.TRl' certificates issued by the Turkish authorities, certifying that the goods were in free circulation pursuant to Decision No 1/95. The certificates stated that a compensatory levy had been paid in Turkey.
- The customs authorities nevertheless took the view that the conditions under which Vestel assembled the CTVs in Turkey led to the conclusion that, applying the test referred to in the contested provisions of Annex 11 to Regulation No 2454/93, their real places of origin were China and Korea, countries subject to the anti-dumping measures contained in Regulation 2584/98.
- The imports made by Asda therefore resulted in the issue in June and October 2003 of post-clearance demand notes seeking recovery of a total amount of GBP 410 786.52 in anti-dumping duties and import VAT.
- Asda challenged those duties before the customs authorities, which upheld them in departmental review proceedings, and then before the VAT and Duties Tribunal, London.
- Since Asda challenged the validity of the contested provisions of Annex 11 to Regulation No 2454/93 and the customs authorities' interpretation both of those provisions and of the provisions of the Additional Protocol and Decision No 1/95, the VAT and Duties Tribunal decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:
'(1) Are the rules for determining non-preferential origin contained in [the contested provisions of] Annex 11 ... invalid for the colour televisions ('CTVs') produced in Turkey falling within combined nomenclature ex 8528 as set out in Column 3 to the table for that heading, by virtue of an incompatibility with the provisions of Article 24 of ... the Community Customs Code ...?
(2) In the event that the specific origin rule for CTVs falling within combined nomenclature ex 8528 as set out in Column 3 to the table for that heading contained in Annex 11 ... is valid, does the non-preferential origin of a separate part, such as a chassis, incorporated in a finished CTV, have to be determined separately; and, if so, is that non-preferential origin to be determined on the basis of:
(a) the physical processing or working of the product, for the purposes of analysing where the product in question has undergone its last, substantial, economically justified processing or working (assuming the other requirements of Article 24 of the Community Customs Code are met); or
(b) specific and residual rules agreed by the European Commission and Member States for the purposes of the European Community's Negotiating Position before the World Trade Organisation in the harmonisation of non-preferential rules of origin, the specific rule in the present circumstances being a 45% added value test and the residual rule being that the country of origin of the good shall be the country in which the major portion of the non-originating materials originated as determined on the basis of each chapter, subject, however, to the qualification that when the originating materials represent at least 50% of all the materials used, the country of origin of the good shall be the country of origin of those materials; or
(c) some other basis?
(3) If a part of a CTV, such as a chassis, has obtained local origin under Article 24 of the Community Customs Code on the basis of a physical processing or working test, is it then still necessary to determine a value for such part in order to apply to the CTV the specific origin rule for CTVs contained in Annex 11 [to Regulation No 2454/93]?
(4) In the event that the rules agreed for the EC Negotiating Position before the WTO can be applied when applying Annex 11, is it necessary for a part of a CTV, such as a chassis, to have its own actual ex-works price, or may it be ascribed a value equivalent to an ex-works price?
(5) If the answer to the third or the fourth question requires an equivalent value to an actual ex-works price to be considered, how is that value to be determined?
In particular:
(a) Is it appropriate to apply:
(i) Articles 29 or 30 of the Community Customs Code;
(ii) any of Articles 141 to 153 of ... Regulation [No 2454/93]; and
(iii) any of the Interpretative Notes on Customs Value set out in Annex 23 to ... Regulation [No 2454/93]?
(b) What form of evidence of value or cost is needed?
(c) In what circumstances may recourse be had to a computed or constructed cost of a part of a CTV in assessing its non-preferential origin?
(d) What type of costs may be taken into account in calculating a computed or constructed cost of a part?
(e) Is it appropriate to apply average values over a period of time in determining the duty liability of a specific product at a specific point in time?
(f) Is it appropriate to use different methodologies for calculating costs or values when comparing the cost or value of a part with the cost or value of a completed, exported product?
(6) Do the provisions of Article 44(2) of Decision No 1/95 ..., read together with Article 47 of the Additional Protocol ..., require the Community to have made an application for a recommendation to the [EEC]-Turkey Council of Association and to have made a notification to the [EEC]-Turkey Council of Association prior to making the anti-dumping duties imposed by ... Regulation ... No 2584/98 also applicable to products imported from Turkey and which were in free circulation?
(7) Does Article 46 of Decision No 1/95 require that the Community, having amended by ... Regulation ... No 2584/98 the product scope and duty rates imposed by three previous Council Regulations on imports of certain CTVs originating in China and Korea, inform the Customs Union Joint Committee that it intends to apply these measures also to imports from Turkey, before it can make imports from Turkey of CTVs originating in China or Korea and in free circulation, subject to the application of the new anti-dumping duties imposed by ... Regulation ... No 2584/98?
(8) Do Articles 44 to 47 of Decision No 1/95 require that traders be informed, or otherwise be made aware, of information given pursuant to Article 46 of Decision No 1/95 or a notification made pursuant to Article 47(2) of the Additional Protocol ...?
(9) In the event that an application, notification or information is required:
(a) What form must any such measure of application and notification pursuant to Article 44 of Decision No 1/95, read together with Article 47 of the Additional Protocol ... take?
(b) What form must any measure of information given pursuant to Article 46 of Decision No 1/95 take?
(c) Do the steps taken by the European Commission in the present case sufficiently comply with the required form of application, notification or information?
(d) What is the consequence of non-compliance?
(10) Are Articles 44, 46 and 47 of Decision No 1/95 and Article 47 of the Additional Protocol ... directly applicable or of direct effect in national courts, so as to confer upon individual traders the right to rely upon any breach of the same in order to resist the payment of anti-dumping duties otherwise due?'
The questions referred
The first question
- By its first question, the referring court asks, essentially, whether the contested provisions of Regulation No 2454/93 are invalid for incompatibility with the provisions of Article 24 of the Community Customs Code.
- Asda argues that, in so far as the contested provisions of Annex 11 to Regulation No 2454/93 require that the increase in value acquired as a result of assembly operations and, if applicable, the incorporation of parts originating in the country of assembly must represent at least 45% of the ex-works price of the television receivers in order for their manufacture to confer on them the origin of the country in which that assembly took place, they thus rely on a criterion based on added value, which the applicant considers to be 'quantitative' and incompatible with the 'qualitative' criteria which, it submits, are set in Article 24 of the Community Customs Code. Asda argues that, by adopting those provisions, the Commission has exceeded the powers conferred on it by the Council for the purpose of implementing the rules which the Council set out in that code.
- It should be noted, first, that, according to Article 24 of the Community Customs Code, goods whose production has involved more than one country are to be deemed to originate in the country where they underwent their last, substantial, economically justified processing or working in an undertaking equipped for that purpose and resulting in the manufacture of a new product or representing an important stage of manufacture.
- That Article 24 of the Community Customs Code reproduces the terms of Article 5 of Regulation (EEC) No 802/68 of the Council of 27 June 1968 on the common definition of the concept of the origin of goods (OJ, English Special Edition 1968 (I), p. 165), which applied before the entry into force of the Community Customs Code. For the purpose of interpreting that regulation, the Court has held that it is clear from Article 5 that the decisive criterion is that of the last substantial process or operation (Case C-26/88 Brother International [1989] ECR 4253, paragraph 15).
- Secondly, Article 249 of the Community Customs Code constitutes a sufficient basis for the Commission to adopt a set of rules for the implementation of that code (Case C-48/98 Söhl & Söhlke [1999] ECR I-7877, paragraph 35).
- It follows from the Court's case-law that the Commission is authorised to adopt all the measures which are necessary or appropriate for the implementation of the basic legislation, provided that they are not contrary to such legislation or to the implementing legislation adopted by the Council (see, inter alia, Söhl & Söhlke, paragraph 36).
- In addition, the Commission has, in exercising the power conferred upon it by the Council for the implementation of Article 24 of the Community Customs Code, a margin of discretion which allows it to define the abstract concepts of that provision with reference to specific working or processing operations (see Case 162/82 Cousin and Others [1983] ECR 1101, paragraph 17).
- Concerning the issue whether the operation of assembling various parts amounts to a substantial working or processing operation, the Court has already held that such an operation may be regarded as conferring origin where it represents, from a technical point of view and having regard to the definition of the goods in question, the decisive production stage during which the use to which the component parts are to be put becomes definite and the goods in question are given their specific qualities (Case 114/78 Yoshida [1979] ECR 151 and Brother International, paragraph 19).
- The Court has, however, held that, in view of the variety of operations which may be described as assembly, there are situations where consideration on the basis of technical criteria may not be decisive in determining the origin of goods. In such cases it is necessary to take account of the value added by the assembly as an ancillary criterion (Brother International, paragraph 20).
- The Court has specified that the relevance of that criterion was also confirmed by the International Convention on the simplification and harmonisation of customs procedures (Kyoto Convention), several annexes to which were accepted on behalf of the Community by Council Decision 77/415/EEC of 3 June 1977 (OJ 1977 L 166, p. 1), and the notes of which in relation to Rule 3 of Annex D.1 state that in practice the substantial processing criterion can be expressed by the ad valorem percentage rule, where either the percentage value of the materials utilised or the percentage of the value added reaches a specified level (Brother International, paragraph 21).
- Furthermore, by Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1), the Council approved, inter alia, the Agreement on Rules of Origin attached to the final act signed in Marrakesh on 15 April 1994 (OJ 1994 L 336, p. 144), which provides that, when developing those rules, the ad valorem percentage criterion may be used.
- It should be recalled in this connection that international agreements, from their entry into force, are an integral part of the Community legal order (see, inter alia, Case C-344/04 IATA and ELFAA [2006] ECR I-403, paragraph 36). It is settled case-law that Community legislation must, so far as possible, be interpreted in a manner that is consistent with those agreements (see, inter alia, Case C-76/00 P Petrotub and Republica v Council [2003] ECR I-79, paragraph 57).
- It follows from the foregoing that the choice of the criterion of added value is not per se incompatible with Article 24 of the Community Customs Code and that reliance on that criterion cannot, in itself, prove that the Commission has exceeded its powers of implementation under Article 249 of that code (Joined Cases C-447/05 and C-448/05 Thomson and Vestel [2007] ECR I-2049, paragraph 31).
- It must, moreover, be pointed out in this connection that, for the purpose of applying Regulation No 802/68, the Commission adopted Regulation (EEC) No 2632/70 of 23 December 1970 on determining the origin of radio and television receivers (OJ, English Special Edition 1970 (III) p. 911), the provisions of which, referring to the criterion of the increase in value, are essentially reproduced in the contested provisions of Annex 11 to Regulation No 2454/93.
- According to the second recital in the preamble to Regulation No 2632/70, the assembly of radio and television receivers can involve processes of a more or less complicated character depending on the type of apparatus that is being assembled, the methods used and the conditions in which assembly takes place. The third recital in the preamble to that regulation also notes that the assembly operations, 'at the present stage of technical development in this branch of industry', do not generally constitute in themselves an important stage of manufacture within the meaning of Article 5 of Regulation No 802/68, but that the position may be otherwise in certain cases, for example where high performance apparatus or apparatus requiring strict control of the parts used is concerned or where assembly of all the component parts of the apparatus is involved. The fourth recital in the preamble to Regulation No 2632/70 adds that the variety of operations which come within the scope of 'assembly' makes it impossible to establish on the basis of a technical criterion the cases in which those operations represent an important stage of manufacture and that it is advisable, in those circumstances, to take into account the increase in value from those operations.
- Such grounds are capable of warranting retention of the criterion of added value in the contested provisions of Annex 11 to Regulation No 2454/93 (Thomson and Vestel, paragraph 35).
- The onus is on the Commission, within the framework of its discretion to adopt the measures required for the implementation of the Community Customs Code, and in particular those relating to the origin of goods, to adopt provisions of a general nature which, with a view to ensuring legal certainty, take into account the overall situation of an industrial sector on a long-term basis and which, consequently, will not be called into question by the specific situation at a given time of one particular undertaking within that sector (Thomson and Vestel, paragraph 36).
- In those circumstances, the account taken by the Commission of the wide variety of operations covered by the concept of assembly throughout the industrial sector concerned justified reliance being placed on the criterion of added value (Thomson and Vestel, paragraph 37).
- Indeed, Asda itself emphasises in its written observations that the operations to assemble the various components of the CTVs at issue in the main proceedings form part of a complex industrial process. Furthermore, the documents in the files submitted to the Court do not permit the inference that that process is identical for all CTV manufacturers. In any event, those documents do not allow the conclusion to be drawn that the operations covered by the concept of assembly throughout the industrial sector concerned are not very diverse in nature.
- Against that background, the need to apply customs rules uniformly throughout the customs territory of the Community requires that the abstract concepts of the last substantial working or processing operation, to which Article 24 of the Community Customs Code refers in respect of all goods, are defined, with regard to particular products such as television receivers, by specific provisions which can take into account the diversity of the processes for manufacturing that equipment. Consequently, it cannot be incorrect in law to have recourse to a clear and objective criterion, such as that of added value, which, in respect of such goods composed of many different parts, makes it possible to explain what is meant by the substantial processing conferring on them their origin (Thomson and Vestel, paragraph 39).
- It must be observed, in addition, that, although the situation described by the appellants in the main proceedings is the result of developments in CTV manufacturing techniques, that situation appears in the present case to be merely circumstantial. Moreover, developments in current manufacturing techniques such as those for plasma screens have the potential substantially to affect that alleged situation. It follows that that situation is not a valid ground on which the soundness of relying on the criterion of added value may be challenged (see, to that effect, Thomson and Vestel, paragraph 44).
- The same applies to the argument based on the fluctuation of exchange rates, since the latter, being purely cyclical and capable of going up as well as down, cannot imply that applying the added value criterion is necessarily unfavourable to the undertakings concerned.
- In the light of all the foregoing, the answer to the first question must be that consideration of it has disclosed nothing capable of affecting the validity of the contested provisions of Annex 11 to Regulation No 2454/93.
The second to fifth questions
Preliminary observations
- The second to fifth questions, which concern the interpretation of the contested provisions of Annex 11 to Regulation No 2454/93, seek to determine the detailed rules for calculating the added value acquired by the CTVs as a result of the assembly operations and the incorporation of original parts.
- To make that calculation, Asda argues that, amongst the parts assembled by its supplier, Vestel, to achieve the final product constituted by the imported CTVs, it is necessary first to determine separately the origin of one of those parts, namely the chassis, itself created by the same supplier from parts coming from various countries. In accordance with that approach, the chassis, namely the whole which controls all the electronic functions of the apparatus, should, Asda argues, be regarded, by virtue of the rules on origin applicable to it, as originating in Turkey. It follows that the value acquired as a result of its incorporation and the assembly operations represent at least 45% of the ex-works price of the television sets in question, which should therefore themselves be regarded as being of Turkish origin, as declared on their importation.
- In that context, the national court therefore asks in its second question, essentially, whether the contested provisions of Annex 11 to Regulation No 2454/93 must be interpreted as meaning that, in order to calculate the value acquired by the CTVs in the course of their manufacture in circumstances such as those of the main proceedings, the non-preferential origin of a distinct part, such as a chassis, incorporated in the finished product must be determined separately.
- The second part of the second question and the third to fifth questions are essentially concerned with discovering, if the origin of such a part does have to be determined separately, on the basis of what rules that origin and the value of that part must be determined. The Court will therefore have to pronounce on those rules only if it has first given an affirmative answer to the first part of the second question, which must therefore be examined first.
The first part of the second question
- It should be remembered that the contested provisions of Annex 11 to Regulation No 2454/93 require that the value acquired through the assembly operations and, in appropriate cases, the incorporation of original parts represent at least 45% of the ex-works price of the television receivers for their manufacture to confer upon them the origin of the country where that assembly took place from materials or parts coming from two or more countries.
- It should be noted at the outset that the provisions at issue are drafted in general terms and do not confer any decisive significance in the determination of the origin of the product concerned on any of its particular components, such as the cathode ray tube (Thomson and Vestel, paragraph 43) or the chassis. What matters is to take account of the whole of the components actually and objectively entering into the assembly carried out by the undertaking which manufactures the finished product.
- Neither the provisions of Article 24 of the Community Customs Code or the contested provisions of Annex 11 to Regulation No 2454/93 provide that such an assessment may be made without taking into account the assembly operations in their entirety. Those provisions do not envisage taking account, in the manufacturing process, of certain assembly operations to the detriment of certain others, or thereby artificially isolating such and such a part which itself comes from an assembly carried out by the same supplier.
- Moreover, the requirement for uniform application of the customs rules over the whole of the Community's customs territory precludes a different interpretation of those provisions. To accept, as Asda maintains, that one of the parts assembled by the supplier of the television sets, in this case the chassis, must be considered separately in the assembly process, because it might then itself acquire the status of an original product, would amount to leaving to the assessment of the importer or its supplier the function of determining at what stage of that assembly process one of the components of the imported product acquires the status of a finished product used as a part in the process of manufacturing, in the same undertaking, another product. Such an approach, which would thus make the origin of a product depend on a subjective assessment, incompatible with the objective and foreseeable nature of the legislative provisions at issue, would deprive the contested provisions of Annex 11 to Regulation No 2454/93 of all useful effect.
- Since the Community legislation on customs valuation seeks to introduce a fair, uniform and neutral system excluding the use of arbitrary or fictitious customs values (Case C-306/04 Compaq Computer International Corporation [2006] ECR I-10991, paragraph 30 and case-law cited), the Community legislation on the origin of products, which shares the same objective, cannot be interpreted as allowing that origin to depend on such a subjective assessment.
- It is true that if a part, such as the chassis, were not assembled by the supplier but acquired by the latter from a third party, it is that part as such, and not the parts which compose it, that would be taken into account for the implementation of the contested provisions of Annex 11 to Regulation No 2454/93. Thus, two technically similar parts would be treated differently for the purposes of applying the same provision of Community law to television suppliers, according to whether they came from the manufacturing structures of the supplier concerned or that supplier acquired them from third parties.
- It is true also that, according to consistent case-law, the principle of equality and non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, in particular, Case C-248/04 Koninklijke Coöperatie Cosun [2006] ECR I-10211, paragraph 72, and Case C-303/05 Advocaten voor de Wereld [2007] ECR I-0000, paragraph 56).
- However, even if the position of products coming from the manufacturing structures of the supplier concerned and that of those which have been obtained from another supplier are technically identical, they are not legally comparable, especially for the purposes of applying the rules on origin. For the latter products, the commercial transaction in which they were obtained from a third party allows, in principle, objective determination of the point at which they acquired their status as a finished product and at which, equally objectively, their origin may be determined. In respect of the others, by contrast, it is not possible to determine that point in advance, it being thus left to the discretion of the supplier in circumstances which, as stated in paragraph 59 of this judgment, have a subjective character incompatible with the application of the legislative provisions at issue in the main proceedings.
- It is not possible to exclude the possibility that the supplier might then have an incentive to establish such a third party with the task of carrying out that assembly, in order to create the appearance of an acquisition of that product from a third party.
- However, it should be remembered that, under Article 25 of the Community Customs Code, any processing or working in respect of which it is established, or in respect of which the facts as ascertained justify the presumption, that its sole object was to circumvent the provisions applicable in the Community to goods from specific countries shall under no circumstances be deemed to confer on the goods thus produced the origin of the country where it is carried out within the meaning of Article 24.
- Asda considers nevertheless that, pursuant to the provisions of Introductory Note 3.2. of Annex 9 to Regulation No 2454/93 ('Introductory Note 3.2'), the origin of the chassis must be determined before determination of the origin of the television set into which that chassis is incorporated.
- Those provisions, reproduced in paragraph 20 of this judgment, have their origin in those of Annex I to Commission Regulation (EEC) No 1364/91 of 24 May 1991 determining the origin of textiles and textile articles falling within Section XI of the combined nomenclature (OJ 1991 L 130, p. 18), a regulation which was repealed by Article 913 of Regulation No 2454/93. Those provisions were repeated in Annex 9 to the latter regulation, and thus apply, in principle, both to the textile products referred to in Annex 10 to that regulation and to the non-textile products referred to in Annex 11 to the latter.
- However, the content of the provisions of Introductory Note 3.2., illustrated by the example which follows the text of that note itself, necessarily implies that their application is reserved for the case where, in respect of the product referred to in the first two columns of Annexes 10 and 11 to that regulation, a rule has been laid down in column 3 of those annexes fixing a limit value on a component incorporated in that product (for example, provisions appearing in column 3, under headings 6301 to ex 6306 of the combined nomenclature, mentioned in Annex 10 to Regulation No 2454/93.
- Application of those provisions cannot, however, be extended to the products of that Annex 11 for which, as in the case of television receivers, column 3 of the same annex lays down not a limit value for a component incorporated in that product, but a threshold for the value which must be acquired by that product through assembly operations and, in appropriate cases, the incorporation of original parts.
- If that were so, application of the provisions of Introductive Note 3.2. to a product such as that at issue in the main proceedings would be deprived of all meaning. Since the contested provisions of Annex 11 to Regulation No 2454/93 determine the rules of origin of television receivers, they are not applicable to the determination of other products, and thus not to the chassis at issue in the main proceedings. If the provisions of that note were thus to be read as excluding a component of those television sets from the application of the rule of origin concerning the latter, they would appear to be totally superfluous.
- In any event, it is clear from the provisions of Introductory Note 3.2 themselves that the latter envisages the case where the product at issue has acquired original status in the course of its manufacture. It follows that, for that product, the question of origin no longer arises and that, consequently, the rule determining its origin, as appearing in column 3 of Annex 11 to Regulation No 2454/93, is not applicable to it but is applicable only to that into the composition of which it enters.
- Even if the provisions of Introductory Note 3.2. did mean that the criterion of added value was not applicable to the determination of the origin of the chassis, and that it was necessary, in order that the latter be determined, to apply only the provisions of Article 24 of the Community Customs Code, such an interpretation could be relevant only if the chassis itself were imported and it was thus necessary to determine its origin, which is not the case in the main proceedings here.
- In those circumstances, the answer to the first part of the second question must be that the contested provisions of Annex 11 to Regulation No 2454/93 must be interpreted as meaning that, in calculating the value acquired by the CTVs on their manufacture in circumstances such as those at issue in the main proceedings, there is no cause to determine separately the non-preferential origin of a distinct part, such as a chassis.
The second part of the second question and the third to fifth questions
- Having regard to the considerations above, there is no need to answer these questions.
The 6th to 10th questions
Preliminary observations
- By its sixth to ninth questions, the referring court essentially asks what is the scope of the obligations on contracting parties to the EEC-Turkey Association Agreement, pursuant to the provisions of Article 47 of the Additional Protocol and those of Articles 44 to 47 of Decision No 1/95. Asda argues that the anti-dumping duties claimed from it were established on the basis of provisions adopted by the Commission in breach of those obligations.
- It should be noted first that, as the United Kingdom Government argues, and as is shown by Article 47(1) of the Additional Protocol signed in 1970, the detailed rules for applying the anti-dumping measures defined in that Article 47 were envisaged for a period of 22 years only. It follows that if the provisions of that article nevertheless remain capable of being potentially applied in a case such as that in the main proceedings, it is by the effect of the provisions of Article 44(2) of Decision No 1/95, which expressly maintain those implementing rules in force.
- It should also be noted that, even if the provisions of the first three paragraphs of Article 47 of the Additional Protocol relate to anti-dumping practices, and may therefore, in appropriate cases, be relevant to the solution of the dispute in the main proceedings, Article 47(4) by contrast envisages the situation, entirely foreign to that dispute, of products which are reimported.
- In those circumstances, the sixth to ninth questions must be regarded as relating to the interpretation of the provisions of Article 44 of Decision No 1/95, read in combination with Article 47(1) to (3) of the Additional Protocol, and Articles 45 to 47 of Decision No 1/95.
- By its 10th question, however, the referring court essentially asks whether those provisions have direct effect before national courts, and thus allow individual operators validly to rely on their breach in order to oppose payment of anti-dumping duties normally due.
- If the answer to that question were to be that those provisions do not have direct effect, the interpretation of them would then be of no interest for the operators in question, and there would thus be no further need to reply to the sixth to ninth questions.
- In those circumstances, the order of the questions should be reversed, examining first the 10th question as reformulated and then, if necessary, the 6th to 9th questions.
The 10th question
- According to well-established case-law, a provision in an agreement concluded by the Communities with a non-member country must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure. It follows that, where an agreement establishes cooperation between the parties, certain of its provisions may, under the abovementioned conditions and having regard to the nature and purpose of the agreement, directly govern the legal position of individuals (see, to that effect, Case C-265/03 Simutenkov [2005] ECR I-2579, paragraphs 21 and 28).
- The provisions of a decision of the EEC-Turkey Association Council may have direct effect (see, to that effect, Case C-192/89 Sevince [1990] ECR I-3461, paragraphs 14 and 15, and Case C-262/96 Sürül [1999] ECR I-2685, paragraph 60).
- In paragraphs 23 and 25 of the judgment in Case 12/86 Demirel [1987] ECR 3719, the Court further took the view that provisions of the Additional Protocol which essentially serve to set out a programme and do not constitute sufficiently precise and unconditional provisions cannot be regarded as rules of Community law which are directly applicable in the internal legal order of the Member States.
- First, it must be noted that whilst the provisions of Article 44(1) of Decision No 1/95 confer upon the Association Council the possibility of suspending the application of commercial defence instruments, they are in any event conditional in nature because they make exercise of that competence subject to the condition that the Republic of Turkey has applied the rules on competition, the control of State aid, and the other provisions of the acquis communautaire concerning the internal market, and have ensured their effective application.
- Such provisions thus require the intervention of other measures for the rights of operators to be affected. Those provisions, not being unconditional in character, are not capable of directly governing the legal position of individuals and cannot therefore be given direct effect.
- Secondly, the provisions of Article 47(1) to (3) of the Additional Protocol, and those of Article 46 of Decision No 1/95, in that they allow the contracting parties the possibility of taking appropriate protection measures, do not contain any obligation (see, to that effect, for the application of Article 25 of the EEC-Turkey Association Agreement, Case C-251/00 Ilumitrónica [2002] ECR I-10433, paragraph 73). The case-law on direct effect is therefore not applicable to those provisions.
- Even if, moreover, those provisions provide that, where that possibility is implemented, the contracting party concerned is to notify the measure to the Association Council, pursuant to Article 47 of the Additional Protocol, or to the Customs Union Joint Committee, pursuant to Article 46 of Decision No 1/95, they thereby create an obligation only as regards the parties to the EEC-Turkey Association Agreement. That simple formality of inter-institutional information, which does not in any way affect the rights or obligations of individuals and the breach of which would have no effect on the position of the latter, is thus not capable of conferring direct effectiveness on those provisions.
- Concerning, thirdly, Article 45 of Decision No 1/95, suffice it to say that it merely encourages the contracting parties to coordinate their action by exchanges of information and consultation, and thus does not contain any obligation either. The case-law on direct effectiveness therefore does not apply to that provision either.
- Regarding, finally, the provisions of Article 47 of Decision No 1/95, however, these do meet the conditions of the case-law cited above on direct effect. They set out in clear, precise and unconditional terms, without being subordinate in their execution or effects to the intervention of any other measure, an obligation on the authorities of the importing State to request the importer to indicate the origin of the products concerned on the customs declaration. Given the nature and purpose of the provisions in question, such an obligation, demonstrating the will of the contracting parties to require importers to provide certain information, is capable of directly governing the legal position of operators. Those provisions must therefore be recognised as having direct effect, which implies that the individuals to whom they apply have the right to rely on them before the courts of the Member States.
- In those circumstances, the answer to the 10th question must be that, first, the provisions of Article 44 of Decision No 1/95, read in conjunction with Article 47(1) to (3) of the Additional Protocol, and those of Articles 45 and 46 of Decision No 1/95 do not have direct effect before national courts and do not therefore allow individual operators validly to plead their infringement in order to resist payment of anti-dumping duties normally due. On the other hand, the provisions of Article 47 of Decision No 1/95 do have direct effect and the individuals to whom they apply have the right to rely on them before the courts of the Member States.
The sixth, seventh and ninth questions
- Having regard to the reply given to the 10th question, there is no need to reply to the 6th, 7th and 9th questions, which concern the interpretation of provisions other than those of Article 47 of Decision No 1/95.
The eighth question
- By its eighth question, the referring court essentially asks whether the provisions of Article 47 of Decision No 1/95 must be interpreted as requiring that the information which the contracting parties which adopted anti-dumping measures must provide to the Customs Union Joint Committee pursuant to Article 46 of Decision No 1/95 or to the Association Council pursuant to Article 47(2) of the Additional Protocol, must be brought to the knowledge of operators.
- In that regard, it should be noted that the abovementioned provisions of Article 47(2) of the Additional Protocol, and those of Article 46 of Decision No 1/95, establish, as stated in paragraph 86 of this judgment, a simple formality of inter-institutional information. Since they govern only the relations of international law between the Community and the Republic of Turkey, they cannot be regarded as also containing an obligation on the contracting parties to inform individuals subject to their jurisdiction. Therefore, in the absence of express provisions to the contrary, the provisions of Article 47 of Decision No 1/95 cannot be interpreted as implicitly requiring the contracting parties to bring that information to the knowledge of economic operators.
- Even if the operators concerned are entitled to claim to be informed clearly and precisely in advance of the anti-dumping measures to which they may be subject, and, in consequence, such measures must be appropriately published, notably in the Official Journal of the European Union, those requirements do not in any way imply that those operators must also be informed of formalities which were established only in the interests of the contracting parties.
- Moreover, the fact that anti-dumping measures such as those at issue in the main proceedings may, as Asda argues, have been given insufficient publicity, even if that fact were established and however regrettable it might be, remains irrelevant to the scope of the obligations to provide information which are placed on the contracting parties with regard only to the bodies established by the latter to ensure the proper functioning of the EEC-Turkey Association Agreement and the customs union established between the EEC and the Republic of Turkey.
- Having regard to the above, the answer to the eighth question must be that the provisions of Article 47 of Decision No 1/95 must be interpreted as not requiring that the information which the contracting parties which adopted anti-dumping measures must provide to the Customs Union Joint Committee pursuant to Article 46 of Decision No 1/95 or to the Association Council pursuant to Article 47(2) of the Additional Protocol, must be brought to the knowledge of operators.
Costs
- Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Fourth Chamber) hereby rules:
1. Examination of the first question has disclosed nothing capable of affecting the validity of the provisions in column 3 under heading 8528 of the Combined Nomenclature, mentioned in Annex 11 to Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code.
2. The provisions in column 3 under heading 8528 of the Combined Nomenclature, mentioned in Annex 11 to Regulation No 2454/93 must be interpreted as meaning that, in calculating the value acquired by colour television receivers on their manufacture in circumstances such as those at issue in the main proceedings, there is no cause to determine separately the non-preferential origin of a distinct part, such as a chassis.
3. The provisions of Article 44 of Decision No 1/95 of the EEC-Turkey Association Council of 22 December 1995, which laid down the conditions for the entry into force of the final phase of the Customs Union, read in conjunction with those of Article 47(1) to (3) of the Additional Protocol, signed on 23 November 1970 in Brussels and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972, annexed to the Agreement establishing an Association between the European Economic Community and Turkey signed at Ankara on 12 September 1963 by the Republic of Turkey, on the one part, and by the Member States of the EEC and the Community, on the other part, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963, and the provisions of Articles 45 and 46 of the said Decision No 1/95 do not have direct effect before national courts and do not therefore allow individual operators validly to plead their infringement in order to resist payment of anti-dumping duties normally due. The provisions of Article 47 of Decision No 1/95 have direct effect and the individuals to whom they apply have the right to rely on them before the courts of the Member States.
4. The provisions of Article 47 of Decision No 1/95 must be interpreted as not requiring that the information which the contracting parties which adopted anti-dumping measures must provide to the Customs Union Joint Committee pursuant to Article 46 of Decision No 1/95 or to the Association Council pursuant to Article 47(2) of the Additional Protocol, must be brought to the knowledge of operators.
[Signatures]
* Language of the case: English.
