Bundesfinanzdirektion West v HEKO Industrieerzeugnisse GmbH.
Date: 2009-12-10
20. In that regard, it should be noted that, although the list rules drawn up by the Commission contribute to the determination of the non-preferential origin of goods, those rules do not have binding legal force.
21. Accordingly, the content of those rules must be compatible with the rules of origin as set out in Article 24 of the Customs Code, and may not alter the scope of those rules (see, by analogy, concerning the Explanatory Notes to the CN, Case C‑311/04 Algemene Scheeps Agentuur Dordrecht [2006] ECR I-609, paragraph 28, and Case C‑376/07 Kamino International Logistics  [2009] ECR I-0000, paragraph 48).
22. It should be added that, although relevant acts of secondary legislation must be interpreted in the light of the agreements adopted in the context of the WTO (see, to that effect, Case C-300/98 Dior and Others  [2000] ECR I-11307, paragraph 47, and Case C-245/02 Anheuser-Busch  [2004] ECR I-10989, paragraph 55), the fact remains that the Agreement on Rules of Origin establishes, for the present, only a harmonisation work programme for a transitional period. Since that agreement does not constitute complete harmonisation, the members of the WTO enjoy a margin of discretion with regard to the adaptation of their rules of origin. In that regard, it is clear from the WTO Panel Report, presented on 20 June 2003 (United States) – Rules of Origin for Textiles and Apparel Products (DS243), paragraphs 6.23 and 6.24, that the members of the WTO are free to determine the criteria which confer origin, to alter those criteria over time, or to apply different criteria to different goods.
23. It is apparent from those considerations that the courts of the Member States may have recourse to criteria resulting from the list rules when interpreting Article 24 of the Customs Code, provided that that does not result in an alteration of that article.
28. It is apparent from the case-law of the Court concerning the interpretation 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), the provision which preceded Article 24 of the Customs Code but was drafted in identical terms, that processing or working is ‘substantial’, for the purposes of that provision, only if the product resulting therefrom has its own properties and a composition of its own, which it did not possess before that process or operation. Activities altering the presentation of a product for the purposes of its use, but which do not bring about a significant qualitative change in its properties, are not of such a nature as to determine the origin of that product (Case 49/76 Gesellschaft für Überseehandel  [1977] ECR 41, paragraph 6, and Case 93/83 Zentrag  [1984] ECR 1095, paragraph 13).
29. It also follows from that case-law that it is not sufficient to seek criteria defining the origin of goods in the tariff classification of processed products, since the Common Customs Tariff has been conceived to fulfil special purposes and not in relation to the determination of the origin of the products. On the contrary, the determination of the origin of goods must be based on a real and objective distinction between the basic product and the processed product, depending fundamentally on the specific material qualities of each of those products ( Gesellschaft für Überseehandel , paragraph 5, and Case 162/82 Cousin and Others  [1983] ECR 1101, paragraph 16).
30. Furthermore, as regards the question whether an assembly operation of different elements constitutes substantial processing or working, the Court has already held that there are situations where consideration on the basis of technical criteria may not be decisive in determining the origin of goods and that, in such cases, it is necessary to take account, in the alternative, of other criteria (see, to that effect, Case C-26/88 Brother International  [1998] ECR I-4253, paragraph 20, Cases C‑447/05 and C-448/05 Thomson and Vestel France  [2007] ECR I-2049, paragraph 27, and Case C-372/06 Asda Stores  [2007] ECR I-11223, paragraph 37).
31. The Court has thus recognised the validity of recourse to a clear and objective criterion, such as that of added value, which, in respect of goods composed of many different parts, makes it possible to explain what is meant by the substantial processing conferring on them their origin (see, inter alia, Thomson and Vestel France , paragraph 39).
34. The Court has, it is true, already held that, in order to define the abstract concepts of specific processing or working, it was not incompatible with Article 5 of Regulation No 802/68 for the Commission to rely on a method in which the change of tariff heading of a product served as the basic rule, which was itself supplemented and adjusted by additional lists taking the particular features of specific processing or working into account (see Cousin and Others , paragraph 17).
35. However, although it is correct that a change in the tariff heading of a product, caused by a processing operation, constitutes an indication of the substantial nature of that processing or working, the fact remains that processing or working may be substantial in nature even if there is no such change of heading. As the Commission itself accepts, the criterion of a change of tariff heading provided for in the list rules covers most of situations, but does not enable all the situations in which the processing or working of the goods is substantial to be identified. It is, therefore, necessary to take other criteria into consideration in order to determine whether the conditions provided for in Article 24 of the Customs Code are fulfilled.