Thomson Multimedia Sales Europe (C-447/05) and Vestel France (C-448/05) v Administration des douanes et droits indirects.
Date: 2007-03-08
22. That article 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).
23. 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).
24. 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).
25. 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).
27. 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).
28. 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 3), 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).
30. 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).
31. 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.
35. 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 .
36. 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.
37. 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.
39. 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.
43. 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. Those provisions, contrary to what is contended by appellants in the main proceedings, are therefore not comparable to the provisions which were at issue in Yoshida and which precisely did confer such a significance on one of the components of the product concerned in that case.
44. It must be observed, in addition, that, although the situation described by the appellants in the main proceedings is the result of developments in television receiver manufacturing techniques, that situation appears in the present case to be merely circumstantial whereas, as the observations submitted at the hearing demonstrate, 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.
45. Finally, it must be stated that, by requiring that the 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 products in order for their manufacture to confer on them the origin of the country where that assembly from material originating in several countries took place, the contested provisions of Annex 11 to Regulation No 2454/93 thereby set a sufficient percentage for those operations to be considered to involve an appreciable increase in the commercial value of the finished product  (see, to that effect, Brother International , paragraph 22). Such a percentage does not therefore appear to be vitiated by any manifest error of assessment.