OPINION OF MR CAPOTORTI — CASE 34/78 YOSHIDA v KAMER VAN KOOPHANDEL EN FABRIEKEN VOOR FRIESLAND

Mr President,

Members of the Court,

1. The concept of the origin of goods is relevant in the Community context for the purposes of the application of certain provisions concerning trade, and in particular of certain rules laid down in the Common Customs Tariff, as well as for the purposes of the issue of certificates of origin for goods exported to third countries. The Council therefore provides by Regulation (EEC) No 802/68 of the Council of 27 June 1968 for the introduction of a common definition of that concept to solve the difficulties hitherto caused by the absence of any international definition and by the differences between national rules for the determination, verification and certification of origin.

2. The cases to which my opinion today relates concern two companies which produce slide fasteners, Yoshida Nederland B.V., having its registered office in Sneek in the Netherlands, and Yoshida GmbH, having its registered office in Mainhausen in the Federal Republic of Germany, which are subsidiaries of a Japanese company of the same name. In the Netherlands and in Germany the two companies produce most of the parts of which the fasteners are composed, except however for the sliders which are produced in Japan and supplied by the parent company.

3. The first question raised by the Netherlands court concerns the interpretation of Article 1 of Commission Regulation No 2067/77. In fact, I do not consider that serious doubts can arise in this connexion. According to the plaintiff company, the circumstance that the slider is manufactured in the country of origin cannot imply that in all other cases the fastener does not originate in that country; however, such an argument is contrary to the wording and the very function of Regulation No 2067/77. That regulation stipulates, as shown by the heading of the table contained in Article 1, the working or processing that confers the status of originating products when the following conditions are met. This stipulation is absolute: on the basis of the regulation in question, a slide fastener can in no case be considered as being of Community origin if all the operations mentioned in the third column, including that of the manufacture of the slider, are not carried out in the Community.

4. The main question which arises in both cases is that of determining whether the specific criterion of origin laid down in Regulation No 2067/77 in respect of slide fasteners is compatible with the general criterion laid down in Article 5 of Regulation No 802/68 of the Council. In view of the very broad wording of that article, the Commission undoubtedly has a certain margin of discretion in the exercise of the power to adopt implementing provisions within the meaning of Article 14 of that regulation. It is necessary therefore to examine whether the Commission has kept within the limits of its discretionary power.

5. In order to interpret correctly the expression last substantial process or operation contained in the abovementioned Article 5 of Regulation No 802/68, it is necessary once more to ask whether that expression necessarily refers to a single operation or whether it may indicate a series of interconnected operations. Apparently, the most logical solution is the first one: the text of the provision leads one to consider that, of the numerous processes or operations which occur in the course of the manufacture of a product, it is necessary to identify those which are of substantial importance and, of those, the last operation: that which is nearest to the end of the manufacturing process. However, there are good reasons for taking the view that the expression concerned may also refer to a series of interconnected operations.

6. We shall now consider the technical factors which occur in the present case.

7. It is now necessary to examine another aspect of the problem, in other words, whether Regulation No 2067/77 is not vitiated as being ultra vires. The Netherlands and German subsidiaries of Yoshida, and with them the German Government, which intervened in Case 114/78, maintain in fact that the Commission exercised the power given to it under Regulation No 802/68 of the Council in order to pursue objectives other than those on the basis of which that power was conferred on it. More precisely, the Commission, they claim, used the power to adopt provisions relating to the determination of the origin of goods for the purpose of adopting a measure of commercial policy with the intention in fact of creating obstacles to trade between the Member States in products manufactured by the Yoshida subsidiaries in the common market.

8. From the point of view of the obstacles which the measure in question might possibly create for trade within the Community, the test of its validity is constituted by Article 30 et seq. of the EEC Treaty. These provisions are addressed to the States; however, their fundamental principle — I refer to the prohibition on quantitative restrictions and measures having an equivalent effect — no doubt also binds the Community institutions in the adoption of measures which have repercussions on trade.

9. I do not consider that the other grounds of invalidity put forward by Yoshida are well-founded. I would refer above all to the complaint of the failure on the part of the services of the Commission to accept the invitation extended by Yoshida to visit its production plants in the Community. I have already recalled that for the purposes of ascertaining the fundamental technical aspects of the process of the production of slide fasteners the service of the Commission visited other undertakings in the sector. It does not follow that the manufacturing process differs substantially from one undertaking to another. It is therefore impossible to see why a visit to Yoshida's plants must be considered essential with regard to the adoption of a measure which, we should not forget, is not in fact in the nature of an individual decision addressed to Yoshida but constitutes a legislative measure the addressees of which are all undertakings which produce slide fasteners.

10. For all the preceding reasons, I conclude by suggesting that the Court should reply to the first question put by the College van Beroep voor het Bedrijfsleven in Case 34/78 by ruling that:

1 Translated from the Italian.