62020CJ0209_RES
Case C‑209/20
Renesola UK Ltd
v
The Commissioners for Her Majesty’s Revenue and Customs
(Request for a preliminary ruling from the Upper Tribunal (Tax and Chancery Chamber))
Judgment of the Court (Third Chamber), 20 May 2021
(Reference for a preliminary ruling – Customs union – Assessment of validity – Implementing Regulation (EU) No 1357/2013 – Determination of the country of origin of solar modules assembled in a third country from solar cells manufactured in another third country – Regulation (EEC) No 2913/92 – Community Customs Code – Article 24 – Origin of goods whose production involved more than one third country – Concept of ‘last substantial processing or working’)
Acts of the institutions – Basic legislation and implementing legislation – Implementing legislation intended to clarify an abstract criterion of the basic legislation – Amendment of the Community Customs Code by an implementing measure clarifying the concept of ‘last substantial processing or working’ for the purpose of determining the country of origin of goods – Discretion of the Commission – Error of law – No such error
(Council Regulation No 2913/92, Arts 24, 247 and 247a; Commission Regulation No 2454/93, Art. 39; Commission Regulation No 1357/2013, recitals 1, 3, 4, 5, 6 and 7)
(see paragraphs 27-35, 37, 41, 42)
Acts of the institutions – Statement of reasons – Obligation – Scope – Implementing regulation laying down provisions for the implementation of the Community Customs Code – Judicial review
(Art. 296 TFEU; Commission Regulation No 1357/2013)
(see paragraphs 36, 43, 44)
Customs union – Origin of goods – Determination – Substantial processing or working – Concept – Assembly operation – Solar modules assembled in one third country from solar cells manufactured in another third country – Selection of the solar cell processing as the origin criterion – Whether permissible – Error of assessment – No such error
(Council Regulation No 2913/92, Art. 24; Commission Regulation No 1357/2013)
(see paragraphs 38, 39, 49-52, operative part)
Résumé
In 2016, the Commissioners for Her Majesty’s Revenue and Customs (United Kingdom) imposed anti-dumping and countervailing duties on Renesola UK Ltd (‘Renesola’) in respect of the import, into the United Kingdom, of solar modules assembled in India from solar cells originating in China. Their imposition was founded, in particular, on Implementing Regulation No 1357/2013, (
1
) which has the effect of rendering those duties applicable, inter alia, to solar modules and panels produced in third countries other than China from solar cells coming from China, by classifying solar modules whose production involved more than one country as originating in the country from which their constituent solar cells come. That classification of origin is based on the principle set out in Article 24 of the Community Customs Code, (
2
) according to which the country of origin is determined by the last, substantial, economically justified processing or working of a product in an undertaking equipped for that purpose and resulting in the manufacture of a new product or representing an important stage of manufacture.
Renesola contested the imposition of those duties in legal proceedings on the ground that Implementing Regulation No 1357/2013 was invalid and that, in the light of Article 24 of the Community Customs Code, the solar modules at issue should be regarded as originating in India. The Upper Tribunal (Tax and Chancery Chamber) (United Kingdom), before which an appeal was brought, decided to make a reference to the Court on the validity of Implementing Regulation No 1357/2013 in so far as it determines the country of origin of solar modules in the light of the criteria set out in Article 24 of the Community Customs Code. That tribunal takes the view that the assembly of solar modules carried out in India using solar cells produced in China must be regarded as a technically complex and delicate process that enables products possessing specific properties to be obtained, with the result that the solar modules at issue should be regarded as products which underwent their last substantial processing in India and, on that basis, as being products originating in that country and not in China.
In its judgment, the Court confirms the validity of Implementing Regulation No 1357/2013, holding in particular that the assessment of the European Commission is free of any error of law or manifest error of assessment and, furthermore, that the adoption of that regulation is justified by the objective of coherent and uniform implementation of not only EU customs rules but also EU anti-dumping rules.
Findings of the Court
First of all, the Court points out that the Community Customs Code empowers the Commission to take any measure which is necessary or useful for its implementation. In particular, on the basis of Articles 247 and 247a of the Community Customs Code, the Commission may adopt implementing measures, such as Implementing Regulation No 1357/2013, for the purposes of interpretation and application of the abstract criteria set out in Article 24 of that code. Thus, where there are one or more specific categories of goods whose production involved more than one country, the country in which those goods must be regarded as originating may be specified by means of an implementing measure, provided that the criteria set out in Article 24 of the code are fulfilled and that the country selected consequently constitutes the country in which the goods underwent their ‘last substantial processing or working’. The Court explains in particular that the term ‘last substantial processing or working’ refers to the production stage during which the use to which the goods are to be put is established and they acquire specific properties and composition, which they did not possess previously, and which are not required to undergo significant qualitative changes subsequently.
The Court observes, next, that an implementing measure adopted by the Commission must be justified by objectives such as those of ensuring legal certainty or the uniform application of EU customs rules. Finally, the reasons stated for such a measure must enable the EU judicature to review its legality, whether in the context of a direct action or of a reference for a preliminary ruling.
In the present instance, the Court holds, first, relying upon recitals 1, 3 and 4 of Implementing Regulation No 1357/2013, that the objective of coherent and uniform implementation of EU customs and anti-dumping rules, in the course of which anti-dumping and countervailing duties are laid down, justifies the adoption of that regulation.
Second, as regards the reasons stated for that regulation, the Court holds that the Commission set out to the requisite legal standard the grounds which led it to specify the origin of the solar modules and panels, grounds which enable the operators concerned to understand and contest the Commission’s reasoning and the Court to assess the validity of the regulation at issue.
Third and last, the Court reviews the Commission’s reasoning relating to the determination of the country of origin of the products at issue in the light of the criterion of the ‘last substantial processing or working’ set out in Article 24 of the Community Customs Code. In that regard, the Court states that the Commission did not commit any error of law or manifest error of assessment. In particular, the Court upholds the Commission’s assessment that the ability to capture solar energy, and the ability then to convert it into electricity, constitute fundamental properties of the solar cells, modules and panels and determine the use to which they are to be put, so that the processing of silicon wafers into solar cells possesses an importance greater than that of the improvements made in the subsequent stage of assembling solar cells in solar modules or panels and thus constitutes the ‘last substantial processing’ of those various products for the purposes of Article 24 of the Community Customs Code.
(
1
)	Commission Implementing Regulation (EU) No 1357/2013 of 17 December 2013 amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 2013 L 341, p. 47) (‘Implementing Regulation No 1357/2013’).
(
2
)	Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 (OJ 2000 L 311, p. 17) (‘the Community Customs Code’).