Relocating manufacturing operations to circumvent EU policy measures does not confer origin

In its 1 March 2023 judgement (General Court - case T‑324/21), the Court of Justice of the EU (CJEU) applied a specific anti-abuse provision pursuant to Article 33 of the Union Customs Code - Delegated Act (UCC-DA). More specifically, it ruled that the relocation of a manufacturing operation, even genuine, does not confer (non-preferential) origin to the manufactured goods if it appears that the principal or main purpose of the relocation operation is to avoid the application of EU commercial policy measures. Although this particular judgment deals with non-preferential origin, the reasoning is also relevant for preferential origin.

1. Origin of goods

Goods originating from third countries (non-EU Member States) are subject to tariff and non-tariff measures (e.g., import restrictions based on quantity). A key factor in determining which measures apply, next to classification and valuation, is the origin of goods. 

The origin of goods refers to the country where the goods were manufactured. In other words, it is the good’s nationality. There are two type of origin, preferential and non-preferential origin. The origin of goods is important since goods from certain (third) countries or territories may be given preferential (privileged) treatment. This means that a reduced or zero rate of customs duty applies to goods originating from those preferential countries or territories.

2. Binding origin information (BOI) decisions as an instrument to gain legal certainty 

Determining the origin of goods is a complex matter. In this context, there is a mechanism that can create legal certainty in terms of origin, namely the use of BOI decisions. This is a formal and binding ruling that certifies the origin of goods.  

3. Not economically justified processing or operation

Pursuant to Article 33 UCC-DA (a specific anti-avoidance provision), (nonpreferential) origin cannot be granted if the processing or working operation carried out in another country or territory is not economically justified. The Court of Justice clarified the application of Article 33 UCC-DA.

The present case involved a US company that, further to a sudden increase of EU import duties on specific goods originating from the United States, relocated its production to Thailand. The reality of this relocation is not disputed.

The Court concluded, however, that the relocation operation, in the case at hand, was not economically justified. According to the Court, “Article 33 UCCDA must be interpreted as meaning that if, on the basis of the available facts, it appears that the principal or dominant purpose of a relocation operation was to avoid the application of EU commercial policy measures, then that operation must be considered incapable, as a matter of principle, of being economically justified.” The court reached that decision based on the following facts: 

• The U.S. company explicitly stated in its own report to the SEC, preceding the relocation decision, its intention to transfer production in light of the sudden increase in European import duties.
• The fact that the Belgian customs administration confirmed nonpreferential origin in some BOI decisions has no impact on the Court’s findings because these BOI decisions were manifestly in violation of Article 33 UCC-DA (the principle of legality prevails over the principle of legitimate expectations in contra legem situations).
• The reference to post-decision documents and statements in which other (non-fiscal) objectives for the relocation operation are described, is irrelevant.  

4. Conclusion

The CJEU re-asserted the principle that origin can only be defined as the country where the last substantial, economically justified processing or working took place.

Even if a relocation actually occurs and processing or working operations are therefore carried out in another country, this does not mean that the origin of the manufactured goods is consequently changed, if it appears that the main objective of the operation is of a fiscal nature and, more specifically in this context, if it consists in avoiding the application of EU policy measures. To determine the main purpose of the relocation, it is necessary to look at the primary motives as presented at the time the decision to relocate was made (not those presented later). 

Companies looking to re-organise their supply chains must take economic objectives influencing the origin decision into consideration (together with a potential increase in duty costs).

Next to that, the judgment demonstrates the importance of proper documentation. It is essential to document economic motives (other than tax motives) in case of supply chain re-engineering prior to a decision to relocate.