61980CJ0277_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 277/80
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FIRST CIVIL DIVISION OF THE TRIBUNALE ( DISTRICT COURT ), MILAN, FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
SIC - SOCIETA ITALIANA CAUZIONI - COMPAGNIA DI ASSICURAZIONI E RIASSICURAZIONI SPA, HAVING ITS REGISTERED OFFICE IN ROME, REPRESENTED BY ALFREDO CUTRERA AND GREGORIO LEONE, ADVOCATES, 12 VIALE ELVEZIA, MILAN,
AND
AMMINISTRAZIONI DELLE FINANZE DELLO STATO ( STATE FINANCE ADMINISTRATION ), REPRESENTED BY THE AVVOCATURA DISTRETTUALE DELLO STATO ( DISTRICT STATE LEGAL ADVISORY OFFICE ), VIA FREGUGLIA, MILAN,
Subject of the case
ON THE INTERPRETATION OF ARTICLE 35 OF REGULATION ( EEC ) NO 542/69 OF THE COUNCIL OF 18 MARCH 1969 ON COMMUNITY TRANSIT ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1969 ( I ), P . 125 ), AS SUPPLEMENTED BY REGULATION ( EEC ) NO 1079/71 OF THE COUNCIL OF 25 MAY 1971 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( I ), P . 285 ),
Grounds
1 BY ORDER OF 9 OCTOBER 1980 WHICH WAS RECEIVED AT THE COURT ON 12 DECEMBER 1980, THE FIRST CIVIL DIVISION OF THE TRIBUNALE ( DISTRICT COURT ), MILAN, REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 35 OF REGULATION
NO 542/69 OF THE COUNCIL OF 18 MARCH 1969 ON COMMUNITY TRANSIT ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1969 ( I ), P . 125 ), AS SUPPLEMENTED BY REGULATION NO 1079/71 OF THE COUNCIL OF 25 MAY 1971 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( I ), P . 285 ).
2 IN ORDER TO FACILITATE THE TRANSPORT OF GOODS WITHIN THE COMMUNITY AND, IN PARTICULAR, TO SIMPLIFY THE FORMALITIES TO BE CARRIED OUT WHEN INTERNAL FRONTIERS ARE CROSSED, REGULATION NO 542/69 OF THE COUNCIL WHICH, AS SUPPLEMENTED, APPLIES TO THE FACTS OF THE CASE BEFORE THE TRIBUNALE, MILAN, PROVIDES A COMMUNITY TRANSIT PROCEDURE WHICH, FOR GOODS WHICH DO NOT SATISFY THE CONDITIONS LAID DOWN IN ARTICLES 9 AND 10 OF THE EEC TREATY, IS THAT FOR EXTERNAL COMMUNITY TRANSIT, GOVERNED BY ARTICLES 12 TO 38 INCLUSIVE OF THE REGULATION .
3 ACCORDING TO ARTICLE 12 ( 1 ) AND ( 3 ) OF THE REGULATION, ANY GOODS THAT ARE TO BE CARRIED UNDER THE PROCEDURE FOR EXTERNAL COMMUNITY TRANSIT MUST BE COVERED BY A DECLARATION ON FORM T 1 IN ACCORDANCE WITH ANNEX A TO THE REGULATION SIGNED BY THE PERSON WHO REQUESTS PERMISSION TO EFFECT THE TRANSIT OPERATION, THAT IS TO SAY, THE ' ' PRINCIPAL ' '
WHO, ACCORDING TO THE DEFINITION PROVIDED IN ARTICLE 11 ( A ) OF THE SAME REGULATION, ' ' MAKES HIMSELF RESPONSIBLE TO THE COMPETENT AUTHORITIES FOR THE EXECUTION OF THE OPERATION IN ACCORDANCE WITH THE RULES . ' '
4 THE EXTERNAL COMMUNITY TRANSIT OPERATION COMMENCES, ACCORDING TO ARTICLE 17 OF THE REGULATION, WITH THE REGISTRATION OF THE T 1 DECLARATION AT THE OFFICE OF DEPARTURE AND ENDS WHEN THE OFFICE OF DESTINATION SENDS A COPY OF THAT DECLARATION TO THE OFFICE OF DEPARTURE IN ACCORDANCE WITH ARTICLE 26 .
5 ON THE OTHER HAND, ARTICLE 27 ( 1 ) OF THE REGULATION PROVIDES : ' ' IN ORDER TO ENSURE COLLECTION OF THE DUTIES AND OTHER TAXES WHICH ONE OF THE MEMBER STATES IS AUTHORIZED TO CHARGE IN RESPECT OF GOODS PASSING THROUGH ITS TERRITORY IN THE COURSE OF COMMUNITY TRANSIT, THE PRINCIPAL SHALL FURNISH A GUARANTEE, EXCEPT AS OTHERWISE PROVIDED IN THIS REGULATION ' ' . ARTICLE 27 ( 2 ) STATES : ' ' THE GUARANTEE MAY BE COMPREHENSIVE, COVERING A NUMBER OF COMMUNITY TRANSIT OPERATIONS, OR INDIVIDUAL, COVERING A SINGLE COMMUNITY TRANSIT OPERATION ' ' . IN ADDITION, ARTICLE 27 ( 3 ) PROVIDES : ' ' SUBJECT TO THE PROVISIONS OF ARTICLE 33 ( 2 ), THE GUARANTEE SHALL CONSIST OF THE JOINT AND SEVERAL GUARANTEE OF A NATURAL OR LEGAL THIRD PERSON ESTABLISHED IN THE
MEMBER STATE IN WHICH THE GUARANTEE IS PROVIDED WHO IS APPROVED AS A GUARANTOR BY THAT MEMBER STATE ' ' .
6 THE FIRST PARAGRAPH OF ARTICLE 35 OF THE REGULATION PROVIDES : ' ' THE GUARANTOR SHALL BE RELEASED FORM HIS OBLIGATIONS TOWARDS THE MEMBER STATES THROUGH WHICH GOODS WERE CARRIED IN THE COURSE OF A COMMUNITY TRANSIT OPERATION WHEN THE T 1 DOCUMENT HAS BEEN DISCHARGED AT THE OFFICE OF DEPARTURE ' ' . TO THIS PROVISION, ARTICLE 1 OF REGULATION NO 1079/71 OF THE COUNCIL OF 25 MAY 1971 ADDED A SECOND PARAGRAPH WHICH IS WORDED AS FOLLOWS :
' ' WHERE THE GUARANTOR HAS NOT BEEN NOTIFIED BY THE OFFICE OF DEPARTURE OF THE NON-DISCHARGE OF THE T 1 DOCUMENT, HE SHALL BE RELEASED FROM HIS OBLIGATIONS ON EXPIRY OF A PERIOD OF TWELVE MONTHS FROM THE DATE OF REGISTRATION OF THE T 1 DECLARATION ' ' .
7 IT IS APPARENT FROM THE ORDER MAKING THE REFERENCE THAT THE PLAINTIFF IN THE MAIN ACTION, SOCIETA ITALIANA CAUZIONI, COMPAGNIA DI ASSICURAZIONI E RIASSICURAZIONI SPA, ( HEREINAFTER REFERRED TO AS ' ' SIC ' ' ), CONTESTED A DEMAND SENT TO IT BY THE CUSTOMS AUTHORITIES FOR DISCHARGE OF ITS OBLIGATIONS AS GUARANTOR OF THREE TRANSPORT OPERATIONS IN FROZEN BEEF EFFECTED ON 21 NOVEMBER AND 21 DECEMBER 1975 AND 2 JANUARY 1976 UNDER TYPE T 1 CUSTOMS FORMS WHICH WERE SUBSEQUENTLY DISCOVERED BY THE FISCAL POLICE IN MILAN TO BE FRAUDULENT, IN SO FAR AS THE THIRD COPY OF THE T 1 FORM HAD BEEN FALSIFIED SO AS TO INDICATE THAT THE GOODS IN QUESTION HAD LEFT ITALIAN TERRITORY, WHICH THEY IN FACT HAD NOT DONE .
8 SIC CONTENDS THAT THE CUSTOMS AUTHORITIES HAVE LOST THE RIGHT TO DEMAND FROM IT, AS GUARANTOR, PAYMENT OF THE CUSTOMS DUTIES IN RESPECT OF THE FRAUDULENT CARRIAGE OF GOODS . IT MAINTAINS THAT IT SHOULD BE CONSIDERED AS RELEASED FROM ITS OBLIGATIONS UNDER THE GUARANTEE AS A RESULT BOTH OF THE DISCHARGE OF THE T 1 DOCUMENT, OF WHICH IT WAS FORMALLY NOTIFIED BY THE COMPETENT CUSTOMS AUTHORITIES ON 13 DECEMBER AND 30 DECEMBER 1975 AND 21 JANUARY 1976, AND OF THE EXPIRY OF THE PERIOD OF TWELVE MONTHS FROM THE DATE OF REGISTRATION OF THE T 1 DECLARATION, IN THE ABSENCE OF NOTIFICATION TO IT BY THE OFFICE OF DEPARTURE OF THE NON-DISCHARGE OF THE T 1 DOCUMENT .
9 THE ITALIAN AUTHORITIES SUBMIT THAT THE DISCHARGE, WHICH IS BASED ON DOCUMENTS OBTAINED BY FRAUD, MUST BE CONSIDERED AS INVALID AND INEFFECTIVE AND THEREFORE OF NO EFFECT AS REGARDS THE RELEASE OF THE GUARANTOR UNDER THE FIRST PARAGRAPH OF ARTICLE 35 OF REGULATION NO 542/69 . SUCH RELEASE SHOULD BE THE RESULT ONLY OF A VALID VERIFICATION BY MEANS OF A POSITIVE CHECK ON THE CONFORMITY OF THE OFFICE OF DEPARTURE ' S COPY OF THE T 1 DOCUMENT WITH THAT OF THE OFFICE OF DESTINATION .
10 WITH REGARD TO THE RELEASE OF THE GUARANTOR UNDER THE CONDITIONS LAID DOWN IN THE SECOND PARAGRAPH OF ARTICLE 35 OF REGULATION NO 542/69, THE ITALIAN AUTHORITIES CONTEND THAT TO THE EXTENT TO WHICH THE DISCHARGE OF THE T 1 DOCUMENT WAS CARRIED OUT IN GOOD TIME, THAT IS TO SAY BEFORE EXPIRY OF THE PERIOD OF TWELVE MONTHS FROM THE DATE OF REGISTRATION OF THE T 1 DECLARATION, BY MEANS OF AN ACTUAL VERIFICATION, ALTHOUGH THE CONDITIONS DETERMINING ITS SUBSTANTIVE VALIDITY ARE SUBSEQUENTLY DISCOVERED NOT TO EXIST, THE CUSTOMS AUTHORITIES OUGHT NO LONGER TO BE BOUND TO EFFECT THE RELEASE PROVIDED FOR BY THAT PARAGRAPH .
11 ACCORDING TO THE ITALIAN AUTHORITIES, UNLESS THE CUSTOMS AUTHORITIES ARE TO BE OBLIGED TO CARRY OUT LENGTHY INQUIRIES AND TO NOTIFY THE GUARANTOR SYSTEMATICALLY OF THE NON-DISCHARGE OF THE T 1 DOCUMENT, CONTRARY TO THE OBJECTIVE AIMED AT BY THE ADOPTION OF REGULATION NO 1079/71, THE DISCHARGE LATER DISCOVERED TO BE INVALID OUGHT NOT TO HAVE THE EFFECT OF RELEASING THE GUARANTOR AND THE SECOND PARAGRAPH OF ARTICLE 35 OF REGULATION NO 542/69 OUGHT IN THIS CASE TO BE INAPPLICABLE .
12 WITH A VIEW TO SOLVING THAT PROBLEM, THE TRIBUNALE, MILAN, REFERRED TO THE COURT THE FOLLOWING QUESTION :
' ' WITH REGARD TO ARTICLE 35 OF REGULATION ( EEC ) NO 542/69 OF 18 MARCH 1969, AS SUPPLEMENTED BY ARTICLE 1 OF REGULATION ( EEC ) NO 1079/71 OF 25 MAY 1971, IS IT ALWAYS INCUMBENT ON THE AMMINISTRAZIONE FINANZARIA ( FINANCE ADMINISTRATION ) TO INTIMATE, WITHIN TWELVE MONTHS OF THE DATE OF REGISTRATION OF A T 1 DECLARATION, THE NON-DISCHARGE OF THAT DOCUMENT, IN ORDER TO PRESERVE THE GUARANTEE REFERRED TO IN THOSE PROVISIONS?
' '
13 ARTICLE 35 OF REGULATION NO 542/69 OF THE COUNCIL, AS SUPPLEMENTED BY REGULATION NO 1079/71 OF THE COUNCIL, SEEKS TO ENSURE CERTAINTY IN THE LAW FOR PERSONS WHO ACT AS GUARANTORS FOR TRANSIT OPERATIONS IN ACCORDANCE WITH THE PROVISIONS OF THE REGULATION IN QUESTION, IN PARTICULAR BY PROVIDING FOR THEIR RELEASE FROM THEIR OBLIGATION UPON THE EXPIRY OF A PERIOD OF TWELVE MONTHS FROM THE DATE OF REGISTRATION OF THE COMMUNITY TRANSIT DECLARATION, WHERE THEY HAVE NOT BEEN NOTIFIED BY THE OFFICE OF DEPARTURE OF THE NON-DISCHARGE OF THE T 1 DOCUMENT . SUCH RELEASE, LINKED WITH EXPIRY OF THAT PERIOD, LIKE THE RELEASE AS A RESULT OF NOTICE OF DISCHARGE, IS NOT SUBJECT TO ANY OTHER CONDITION .
14 IN ADDITION, IT IS CLEAR FROM THE PROVISIONS OF ARTICLE 35 OF REGULATION NO 542/69, AS SUPPLEMENTED BY REGULATION NO 1079/71 OF THE COUNCIL, THAT WITHIN THE FRAMEWORK OF THE FUNCTION ASSIGNED TO IT IN THE PROCEDURE SET OUT IN ARTICLE 35 OF REGULATION NO 542/69, NOTIFICATION OF DISCHARGE CAN NEITHER PREVENT THE GUARANTOR ' S RELEASE NOR TAKE THE PLACE OF NOTIFICATION OF NON-DISCHARGE OF THE T 1 DOCUMENT AND THUS HAVE AN EFFECT CONTRARY TO THAT EXPRESSLY ATTACHED TO THAT FORMALITY BY THE PROVISION IN QUESTION .
15 WITHOUT PREJUDICE TO THE EFFECTS WHICH FRAUD ON THE PART OF THE GUARANTOR HIMSELF MIGHT HAVE HAD ON HIS RELEASE FROM HIS OBLIGATIONS AS GUARANTOR, A SITUATION WHICH DOES NOT EMERGE FROM THE QUESTION PUT TO THE COURT, IT THEREFORE FOLLOWS THAT THE GUARANTOR IS AUTOMATICALLY RELEASED UPON THE EXPIRY OF THE PERIOD OF TWELVE MONTHS WITHOUT NOTIFICATION OF NON-DISCHARGE .
16 THEREFORE THE REPLY TO THE QUESTION PUT BY THE TRIBUNALE, MILAN, SHOULD BE THAT ARTICLE 35 OF REGULATION NO 542/69 OF THE COUNCIL OF 18 MARCH 1969 ON COMMUNITY TRANSIT, AS SUPPLEMENTED BY ARTICLE 1 OF REGULATION NO 1079/71 OF 25 MAY 1971, MUST BE INTERPRETED AS MEANING THAT UNLESS THE GUARANTOR IS NOTIFIED BY THE CUSTOMS AUTHORITIES OF THE NON-DISCHARGE OF THE T 1 DECLARATION WITHIN THE PERIOD OF TWELVE MONTHS FROM THE DATE OF REGISTRATION OF THE DECLARATION, THEN, IN THE ABSENCE OF ANY FRAUD OF WHICH HE MAY BE GUILTY, THE GUARANTOR IS IN ANY EVENT RELEASED FROM HIS OBLIGATIONS .
Decision on costs
COSTS
17 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER ),
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE TRIBUNALE, MILAN, BY ORDER OF 9 OCTOBER 1980, HEREBY RULES :
ARTICLE 35 OF REGULATION NO 542/69 OF THE COUNCIL OF 18 MARCH 1969 ON COMMUNITY TRANSIT, AS SUPPLEMENTED BY ARTICLE 1 OF REGULATION NO 1079/71 OF THE COUNCIL OF 25 MAY 1971, MUST BE INTERPRETED AS MEANING THAT, UNLESS THE GUARANTOR HAS BEEN NOTIFIED BY THE CUSTOMS AUTHORITIES OF THE NON-DISCHARGE OF THE T 1 DECLARATION WITHIN THE PERIOD OF TWELVE MONTHS FROM THE DATE OF REGISTRATION OF THE DECLARATION, THEN, IN THE ABSENCE OF ANY FRAUD OF WHICH HE MAY BE GUILTY, THE GUARANTOR IS IN ANY EVENT RELEASED FROM HIS OBLIGATIONS .