2.12.2006   

EN

Official Journal of the European Union

C 294/24

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

Referring court

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

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

(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 televisions (‘CTVs’) produced in Turkey falling within combined nomenclature ex 8528 as set out in Column 3 to the table for that heading, by virtue of an incompatibility with the provisions of Article 24 of Council Regulation (EEC) No. 2913/92 of 12 October 1992 establishing the Community Customs Code (‘the Community Customs Code’)?

(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 question 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

(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 harmonisation 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

(c)

some other basis?

(3)

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 Regulation?

(4)

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?

(5)

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

(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?

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

(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 Community to have made an application for a recommendation to the EC-Turkey Council of Association and to have made a notification to the EC-Turkey Council of Association 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 information 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?

(c)

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

(d)

What is the consequence of non-compliance?

(10)

Are Articles 44, 46 and 47 of Decision No. 1/95 and Article 47 of the Additional Protocol to the Ankara Agreement directly applicable or of direct effect in national courts, so as to confer upon individual traders the right to rely upon any breach of the same in order to resist the payment of anti-dumping duties otherwise due?

(1)  OJ L 11, P.88

(2)  OJ L 3, P.23

(3)  OJ L 324, p. 1