Opinion of Mr Advocate General Van Gerven delivered on 16 March 1989

1 Original language: Dutch.

2 OJ L 163, 22.6.1985, p. 1.

3 OJ C 338.31 12.1985, p 7

4 OJ L 140,27 5 1986, p 52

5 OJ. English Special Edition 1968 (I), p. 165.

6 It is established that the first operation, namely the attaching of resistors and other components to printed circuits was done in Taiwan only on three models of the electronic typewriter in question. For the other models that operation was done in Japan.

7 Since, as will appear later, the answer to the question of law put in the present case stems from the case-law of the Court in relation to Article 5 it will not be necessary to refer further to those implementing regulations.

8 See paragraph 10: (c) the attaching of the metal scoops or the nylon spirals to the tapes and the subsequent joining of the tapes; (d) the attaching of bottom stops and top stops to the tapes; (e) the insertion and where necessary the colouring of the sliders; (0 the drying and cleaning of the slide-fastener lengths followed by the cutting of them to make individual slide fasteners.

9 In this case the criterion is used to determine whether the operations under consideration ted to the manufacture of a new product or constituted an important stage of manufacture and thus amounted to a substantial operation Tfiat shows that the interpretation of the different parts of the sentence in Article !> overlaps and is determined to a large extent aicording to the same criteria It is, however, different in the present case (see point 3 above), because the national court has rightly assumed that in this case the assembly of the separate pieces has given rise to a new product and therefore it has concentrated in its questions on the substantial nature of that assembly

10 The criterion of work done and material expenditure is an accountancy approach in terms of cost. The added value, that is to say the value added by the processor, refers to the difference herween the sale price of the finished product and the purchase price of the raw material, energy and, if necessary, rent and so forth. Theoretically the latter criterion differs from the first in two respects: apart from payment for labour, it also includes capital and real property costs, two production factors which are missing in the calculation of the work done and material expenditure and it is based on the market prices arising from the interplay of supply and demand. In practice those differences are of little importance: the first difference is slight and foreseeable (and may be replaced by a flat rate), no doubt in view of the relative importance of the production factors as part of the total cost or the added value of the final product; the second difference is purely theoretical in many cases and certainly in the present case, for there is no sufficiently wide and transparent market for the various separate (Brother) components for electronic typewriters. In the absence of such a market it is necessary to have recourse to the approach based on cost.

11 See, for example, Bail/Schädel/Hutter: Kommentar Zollrecht, F IV, note 8 in relation to Article 5 of Regulation No 802/68.

12 Council Decision 75/199/EEC of 18 March 1975 concluding an International Convention on the simplification and harmonization of customs procedures and accepting the annex thereto concerning customs warehouses (OJ L 100, 21.4.1975, p. 1), to which the convention is annexed.

13 Council Decision 77/415/EEC of 3 June 1977 accepting on behalf of the Community several annexes to the International Convention on the simplification and harmonization of customs procedures (OJ L 16ū, 4.7.1977, p. 1).

14 See the last paragraph of the introduction: The annex deals solely with the customs aspects of rules of origin. It does not, tor example, extend to measures taken to protect industrial or commercial property or to ensure respect for origin indications or other trade descriptions in force.

15 Sec Mr Advocate General Warner's Opinion in the judgmeni of 26 January 1977 Gesellschaft für Überseehandel case, [1977] ECR 61; paragraphs II and 12 of the judgment of 31 January 1979 cited above in point 6 and (for a rebuttal of the view that the economic criterion should be the main criterion) the last sentence of paragraph 14 of the judgment of 23 February 1984, cited above in point 8.

16 Thus it is substantially less than the 22% referred to by the Court in paragraph 14 of the judgment of 23 February 1984, cited above in point 8.

17 See the last two sentences of paragraph 12 of the judgment of 31 January 1979 cited above in point 6 and the Opinion of Advocate General Sir Gordon Slynn, [1983] ECR 1128 and 1129 in the Cousin case, cited above in point 7.