W. GmbH and Der Generalbundesanwalt beim Bundesgerichtshof v S.Z.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2024:680
• Docket Number: C-67/23
• Date: 05 September 2024

Provisional text

JUDGMENT OF THE COURT (First Chamber)

5 September 2024 (*)

( Reference for a preliminary ruling – Common foreign and security policy – Restrictive measures in respect of Burma/Myanmar – Prohibition on the import of goods originating in or exported from Burma/Myanmar – Regulation (EC) No 194/2008 – Article 2(2)(a) – Teak logs originating in Burma/Myanmar exported to and processed in Taiwan before being transported to the European Union – Regulation (EEC) No 2913/92 – Community Customs Code – Article 24 – Concept of ‘substantial processing or working’ – Teak logs that have been debranched, debarked, sawn into the shape of wooden cuboids or cut into sawn teak wood in Taiwan – Certificate of origin issued by the Taiwanese authorities – Value of that certificate for the determination, by the customs authorities of the Member States, of the origin of those teak logs )

In Case C‑67/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 17 November 2022, received at the Court on 8 February 2023, in the criminal proceedings against

S.Z.,

intervening parties:

W. GmbH,

Generalbundesanwalt beim Bundesgerichtshof,

THE COURT (First Chamber),

composed of A. Arabadjiev, President of the Chamber, T. von Danwitz, P.G. Xuereb (Rapporteur), A. Kumin and I. Ziemele, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– S.Z., by G. Schwendinger, Rechtsanwalt,

– W. GmbH, by K. Göcke, Rechtsanwältin,

– the Generalbundesanwalt beim Bundesgerichtshof, by P. Frank, acting as Agent,

– the European Commission, by M. Carpus Carcea, C. Hödlmayr and F. Moro, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 2(2)(a) of Council Regulation (EC) No 194/2008 of 25 February 2008 renewing and strengthening the restrictive measures in respect of Burma/Myanmar and repealing Regulation (EC) No 817/2006 (OJ 2008 L 66, p. 1).

2 The request has been made in criminal proceedings brought against S.Z. for failure to comply with the prohibition on imports of goods originating in or exported from Burma/Myanmar.

Legal context

European Union law

The CN

3 The customs classification of goods imported into the European Union is governed by the Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Regulation (EC) No 1214/2007 of 20 September 2007 (OJ 2007 L 286, p. 1) (‘the CN’), which is based on the Harmonised Commodity Description and Coding System (‘the HS’) established by the International Convention on the Harmonised Commodity Description and Coding System, concluded in Brussels on 14 June 1983 in the framework of the World Customs Organisation (WCO) and approved, together with the Protocol of Amendment thereto of 24 June 1986, on behalf of the European Economic Community by Council Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198, p. 1).

4 According to Article 3(1) of Regulation No 2658/87, the CN reproduces the HS six-digit headings and subheadings, with only the seventh and eighth digits creating further subheadings which are specific to it.

5 Headings 4403 and 4407 of the CN, which correspond to the same HS headings, respectively read ‘Wood in the rough, whether or not stripped of bark or sapwood, or roughly squared’ and ‘Wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or end-jointed, of a thickness exceeding 6 mm’.

Community Customs Code

6 Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1; ‘the Community Customs Code’), was repealed and replaced, from 1 May 2016, by Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1, and corrigendum OJ 2013 L 287, p. 90). However, in view of the date of the facts of the dispute in the main proceedings, the Community Customs Code remains applicable thereto.

7 Title II of the Community Customs Code, entitled ‘Factors on the basis of which import duties or export duties and the other measures prescribed in respect of trade in goods are applied’, contained Chapter 1, entitled ‘Customs tariff of the European Communities and tariff classification of goods’, which included Article 20 of that code, which was worded as follows:

‘1. Duties legally owed where a customs debt is incurred shall be based on the Customs Tariff of the European Communities.

…

3. The Customs Tariff of the European Communities shall comprise:

…

(d) the preferential tariff measures contained in agreements which the Community has concluded with certain countries or groups of countries and which provide for the granting of preferential tariff treatment;

(e) preferential tariff measures adopted unilaterally by the Community in respect of certain countries, groups of countries or territories;

…’

8 Chapter 2 of Title II, entitled, ‘Origin of goods’, contained Section 1, entitled ‘Non-preferential origin’, and Section 2, entitled ‘Preferential origin of goods’.

9 That Section 1 contained Article 22 of the Community Customs Code, which provided:

‘Articles 23 to 26 define the non-preferential origin of goods for the purposes of:

(a) applying the Customs Tariff of the European Communities with the exception of the measures referred to in Article 20(3)(d) and (e);

(b) applying measures other than tariff measures established by Community provisions governing specific fields relating to trade in goods;

(c) the preparation and issue of certificates of origin.’

10 Article 23 of that code stated:

‘1. Goods originating in a country shall be those wholly obtained or produced in that country.

2. The expression “goods wholly obtained in a country” means:

…

(b) vegetable products harvested therein;

…’

11 Under Article 24 of that code:

‘Goods whose production involved more than one country shall be deemed to originate in the country where they underwent their last, substantial, economically justified processing or working in an undertaking equipped for that purpose and resulting in the manufacture of a new product or representing an important stage of manufacture.’

12 Article 26 of that code provided:

‘1. Customs legislation or other Community legislation governing specific fields may provide that a document must be produced as proof of the origin of goods.

2. Notwithstanding the production of that document, the customs authorities may, in the event of serious doubts, require any additional proof to ensure that the indication of origin does comply with the rules laid down by the relevant Community legislation.’

Regulation (EEC) No 2454/93

13 Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1) was repealed by Commission Implementing Regulation (EU) 2016/481 of 1 April 2016 repealing Commission Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 2016 L 87, p. 24). However, in view of the date of the facts of the dispute in the main proceedings, Regulation No 2454/93 remains applicable thereto.

14 That regulation contained Annex 13a, which was inserted into that regulation by Commission Regulation (EU) No 1063/2010 of 18 November 2010 (OJ 2010 L 307, p. 1), which contained Part II, entitled ‘List of products and working or processing operations which confer originating status’, which provided, inter alia, the following:

Harmonised System heading	Description of product	Qualifying operation (Working or processing, carried out on non-originating materials, which confers originating status)
…	…	…
ex Chapter 44	Wood and articles of wood; wood charcoal; except for:	Manufacture from materials of any heading, except that of the product or Manufacture in which the value of the materials used does not exceed 70% of the ex-works price of the product
ex Chapter 4407	Wood sawn or chipped lengthwise, sliced or peeled, of a thickness exceeding 6 mm, planed, sanded or end-jointed	Planing, sanding or end-jointing
…	…	…

Regulation 194/2008

15 Regulation No 194/2008 was repealed, from 3 May 2013, by Council Regulation (EU) No 401/2013 of 2 May 2013 concerning restrictive measures in respect of Myanmar/Burma and repealing Regulation (EC) No 194/2008 (OJ 2013 L 121, p. 1). However, in view of the date of the facts of the dispute in the main proceedings, Regulation No 194/2008 remains applicable thereto.

16 Under recitals 6 and 7 of Regulation No 194/2008:

‘(6) For more than a decade, the Council [of the European Union] and members of the international community have repeatedly condemned the Burmese/Myanmar regime’s practice of torture, summary and arbitrary executions, forced labour, abuse of women, political arrests, forced displacement of the population and restrictions on the fundamental rights of freedom of speech, movement and assembly. Taking into account the regime’s longstanding, continuing serious violations of fundamental rights, including the recent brutal repression of peaceful demonstrations, the restrictive measures in this Regulation are instrumental in promoting respect for fundamental human rights and thus serve the purpose of protecting public morals.

(7) The new restrictive measures target sectors which provide sources of revenue for the military regime of Burma/Myanmar. Therefore the new restrictive measures apply...