Case C-372/06: Reference for a preliminary ruling from VAT and Duties Tribunal, London (United Kingdom) made on 11 September 2006 — Asda Stores Ltd v Commissioners of HM Revenue and Customs
Date: 2006-12-02
Institutions: Court of Justice
Subjects: Türkiye, agreement (EU), customs regulations, interpretation of the law, originating product, television equipment

C 294/24

EN

Official Journal of the European Union

2.12.2006

Reference for a preliminary ruling from VAT and Duties
Tribunal,
London (United Kingdom) made on 11
September 2006 — Asda Stores Ltd v Commissioners of
HM Revenue and Customs

(Case C-372/06)

(2006/C 294/42)

Language of the case: English

(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 harmoni-
sation 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

Referring court

(c) some other basis?

VAT and Duties Tribunal, London

Parties to the main proceedings

Applicant: Asda Stores Ltd

Defendant: Commissioners of HM Revenue and Customs

Questions referred

Questions concerning non-preferential origin

(3)

(4)

Compatibility with the Code of relevant provisions of Annex 11 to
the Implementing Regulation

(5)

(1) Are the rules for determining non-preferential origin
contained in Annex 11 to Commission Regulation (EEC)
No. 2454/93 (1) of 2 July 1993 laying down provisions
for the implementation of Council Regulation (EEC) No.
2913/92 (2) establishing the Community Customs Code
(‘the Implementing Regulation’) invalid for the colour tele-
visions
falling within
combined nomenclature ex 8528 as set out in Column 3
to the table for that heading, by virtue of an incompat-
ibility with the provisions of Article 24 of Council Regu-
lation (EEC) No. 2913/92 of 12 October 1992 estab-
lishing the Community Customs Code (‘the Community
Customs Code’)?

(‘CTVs’) produced in Turkey

(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 to the Implementing Regulation is valid, does
the non-preferential origin of a separate part, such as a
chassis, which 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 ques-
tion 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

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 the Implementing Regu-
lation?

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?

the answer to either question (3) or question (4)
If
requires an equivalent value to an actual ex-works price to
be considered, how is that value to be determined? In par-
ticular:

(a) Is it appropriate to apply: (i) Articles 29 or 30 of the
Community Customs Code; (ii) any of Articles 141 to
153 of the Implementing Regulation; and (iii) any of
the Interpretative Notes on Customs Value set out in
Annex 23 to the Implementing Regulation?

(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?

2.12.2006

EN

Official Journal of the European Union

C 294/25

Questions concerning Articles 44 to 47 of Decision No. 1/95
and Article 47 of the Additional Protocol to the Ankara Agree-
ment

the right to rely upon any breach of the same in order to
resist the payment of anti-dumping duties otherwise due?

(6) Do the provisions of Article 44(2) of Decision No. 1/95
of the EC-Turkey Association Council of 22 December
1995 on implementing the final phase of the Customs
Union, read together with Article 47 of the Additional
Protocol
to the Ankara Agreement, require the Com-
munity to have made an application for a recommenda-
tion to the EC-Turkey Council of Association and to have
made a notification to the EC-Turkey Council of Associa-
tion prior to making the anti-dumping duties imposed by
Council Regulation (EC) No. 2584/98 (3) 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 Council Regulation (EC)
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 Council
Regulation (EC) 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 to the Ankara Agreement?

(9)

In the event that an application, notification or informa-
tion 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 to the Ankara Agreement, take?

(b) What form must any measure of information given
pursuant to Article 46 of Decision No. 1/95 take?

(1) OJ L 11, P.88
(2) OJ L 3, P.23
(3) OJ L 324, p. 1

Action brought on 15 September 2006 — Commission of
the European Communities v Kingdom of Spain

(Case C-380/06)

(2006/C 294/43)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (repre-
sented by: B. Schima and S. Pardo Quintillán, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

The Court is asked to:

— declare that, by authorising, under Law 3/2004 of 29
December 2004 on combating late payment in commercial
transactions, a period of 90 days for the payment of specific
staple foods and postponing the entry into force of certain
provisions until 1 July 2006, the Kingdom of Spain has
failed to fulfil its obligations under Article 3(1)(2) and (4) of
Directive 2000/35/EC of the European Parliament and of
the Council of 29 June 2000 on combating late payment in
commercial transactions (1);

— order the Kingdom of Spain to pay the costs.

(c) Do the steps taken by the European Commission in
the present case sufficiently comply with the required
form of application, notification or information?

Pleas in law and main arguments

(d) What is the consequence of non-compliance?

(10) Are Articles 44, 46 and 47 of Decision No. 1/95 and
to the Ankara
Article 47 of
Agreement directly applicable or of direct effect
in
national courts, so as to confer upon individual traders

the Additional Protocol

Directive 2000/35/EC does not provide for the partial or
gradual application of
its provisions in any circumstances.
Accordingly the postponement until 1 July 2006 is contrary to
Article 3(1) and (2) thereof. It also infringes Article 3(4) which
provides that the Member States are to ensure that, in the inter-
ests of creditors and of competitors, adequate and effective
means exist to prevent the continued use of terms which are
manifestly unfair.