Asda Stores Ltd v Commissioners of Her Majesty’s Revenue and Customs.
Date: 2007-12-13
32. 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).
33. 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).
34. 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).
35. 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).
37. 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).
40. 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).
41. 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).
44. 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).
45. 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).
46. 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).
48. 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).
49. 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).
57. 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.
60. 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.
62. 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).
82. 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).
83. 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).
84. 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.
87. 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.