61980C0136
OPINION OF MR ADVOCATE GENERAL CAPOTORTI
DELIVERED ON 18 JUNE 1981 (
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)
Mr President,
Members of the Court,
1.
The questions referred to the Court for a preliminary ruling which have given rise to this case concern the interpretation of an aspect of the Community system governing the transit procedure for goods. I think it is advisable to begin with a brief outline of the context in which the specific provision to be interpreted must be placed.
In order to facilitate the transportation of goods within the Community and, in particular, to simplify the formalities to be carried out when internal frontiers are crossed, the Council adopted on 18 March 1969, Regulation (EEC) No 542/69 on Community transit. In the years which followed, its text was amended on several occasions and it was finally replaced by Regulation (EEC) No 222/77 of 13 December 1976. However, the events at issue occurred before the entry into force of that regulation and therefore Regulation (EEC) No 542/69 is the one which is directly relevant. With regard to goods from non-member countries, the aim of the Community transit procedure is to enable them to be carried from the place of entry into the Community to their destination (or, in the case of passage through the Community, to the customs office at the point of exit) without renewed customs formalities when the goods cross from one Member State to another (fourth recital in the preamble to Regulation (EEC) No 542/69).
Article 1 (1) of Regulation (EEC) No 542/69, cited above, draws a distinction between the procedure for external Community transit and the procedure for internal Community transit. The first procedure applies inter alia to goods “which do not satisfy the conditions laid down in Articles 9 and 10 of the Treaty establishing the European Economic Community” (Article 1 (2) (a)). Under Article 12 (1), any goods that are to be carried under the procedure for external Community transit must be covered by a declaration on form Τ 1 (in accordance with Annex A to the regulation). That declaration must be signed by the person who requests permission to effect an external Community transit operation or by his authorized representative and at least three copies of it must be produced at the office of departure (Article 12 (3)). The office of departure means the customs office where the Community transit operation begins (Article 11 (c)).
A person who requests permission to carry out a Community transit operation, and has accordingly signed a declaration on form Τ1, is responsible to the competent authorities for the execution of the operation in accordance with the rules and is therefore designated as “the principal” (Article 11 (a)). Under Article 13, the principal is responsible for the representation of the goods intact at the office of destination within the prescribed period, the due observance of the measures adopted by the competent authorities to ensure identification and the observance of the provisions relating to the Community transit procedure and to transit in each of the Member States in the territory of which carriage of the goods is effected. Furthermore, in accordance with Article 27 (1) and (2), “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 in the course of Community transit, the principal shall furnish a guarantee, except as otherwise provided in this regulation. The guarantee may be comprehensive, covering a number of Community transit operations, or individual, covering a single Community transit operation”. Article 27 (3) lays down that “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 guarantor by that Member State”. It is expressly stated in the French version that the guarantor must be a third person. As for Article 33 (2), it lays down that an individual guarantee furnished for a single Community transit operation may consist of a cash deposit; “in such a case, the amount shall be fixed by the competent authorities of the Member States, and the guarantee must be renewed at each office of transit...”.
The guarantor is to be released from his obligations towards the Member States through which goods were carried in the course of a Community transit operation “when the Τ1 document has been discharged at the office of departure” (Article 35). I would emphasize that the Court has been asked to interpret that provision. By Regulation (EEC) No 1079/71 of 25 May 1971, the Council added to that provision in order to satisfy the requirement of legal certainty a second paragraph worded as follows: “where the guarantor has not been notified by the office of departure of the non-discharge of the Τ 1 document, he shall be released from his obligations on expiry of a period of 12 months from the date of registration of the Τ 1 declaration”.
2.
It is now time to recapitulate the principal facts of this case. In October 1976, Hudig en Pieters, an undertaking in Rotterdam, imported from Australia a quantity of milk powder intended for a purchaser from Concorezzo in the province of Milan. Since the milk powder was transported through Rotterdam, the company made a Τ1 declaration, as provided for under the aforesaid Article 12 of Regulation (EEC) No 542/69, in order to obtain the benefit of the external Community transit procedure from Rotterdam to Concorezzo. In its capacity as “principal” (within the meaning of the aforesaid Article 11 of Regulation (EEC) No 542/69), the same undertaking put up security in the form of a comprehensive joint and several guarantee. Two months later, that is to say at the end of December 1976, the collector's office at Rotterdam, which had not yet received a copy of the Τ 1 declaration, requested the importing undertaking to provide evidence that the goods had left Netherlands territory and had reached their destination. Subsequently, by letter of 12 January 1977, the collector informed Hudig that the Τ 1 document for the above-mentioned operation “was regarded as discharged” (which implied that the evidence required had been furnished by the plaintiff).
Moreover, by letter of 23 April 1977, the same collector advised Hudig that the third copy of the Τ 1 document relating to the operation in question had reached him bearing false endorsements and declarations. Consequently, the plaintiff was again requested to prove that the goods had reached their destination or that they had been lost. Hudig was unable to provide the evidence required, and did not challenge the false endorsements and declarations borne by the third copy of the Τ 1 document. Therefore, on 7 July 1977, the collector asked Hudig to pay the import levy charged in respect of milk powder (over HFL 100000), as though the imported goods had never left the Netherlands.
After the plaintiff lodged an objection, the Inspector of Customs and Excise at Rotterdam decided on 4 January 1978 that the Τ 1 document had to be regarded as undischarged as a result of the improper declarations and endorsements which it bore. That decision was upheld by the same inspector on 18 October 1978. Hudig then brought an action before the College van Beroep voor het Bedrijfsleven. In connection with the proceedings which were thus instituted, the court hearing the main action, by decision of 3 June 1980, referred to this Court the following questions for a preliminary ruling:
“I.
Must the first paragraph of Article 35 of Regulation (EEC) No 542/69 of the Council as worded and applicable at the time of the declaration in question (29 October 1976) be so interpreted that the words ‘degene die zekerheid heeft gesteld ’ must be taken to cover the principal who has furnished a comprehensive guarantee within the meaning of Article 27 of the regulation?
II.
In the event of Question 1 being answered in the affirmative must the first paragraph of the said Article 35, bearing in mind the intention of that paragraph to provide legal certainty, be so interpreted that the release of the principal by a notification to him by the office of departure stating that the Τ1 document is discharged cannot be nullified by a subsequent notification by that office to the principal stating that the same document is still to be treated as undischarged?”
3.
In relation to the first question, it is necessary in the first place to emphasize that the unfortunate expression used in Article 27 (1), “the principal shall furnish a guarantee”, may give rise to the doubt, expressed by the court hearing the main action, that the term “guarantor” contained in Article 35 may also refer to a principal who has provided security by obtaining the joint and several guarantee of a third person. What lends weight to that doubt, as is apparent from the decision to refer the matter to the Court, is the Dutch version of Regulation (EEC) No 542/69 which uses to denote the guarantor in Article 35 an expression closely resembling that used in the aforesaid Article 27 (1). In reliance upon that expression, the plaintiff interprets Article 35 as meaning that following the discharge of the Τ 1 document, not only the third person providing the guarantee but also the principal is released from his obligations towards the Member States through which goods were carried in the course of a Community transit operation.
In my opinion, that argument is unfounded. Article 27 (3) itself explains, as we have seen, the significance of the “guarantee” to be provided, by laying down that it must consist of “the joint and several guarantee of a natural or legal third person” (in the French text “le cautionnement solidaire d'une personne tierce, physique ou morale”). Even leaving aside the reference to the “personne tierce” contained in that provision, the very concept of joint and several liability presupposes that two persons are involved: the principal and the person jointly and severally liable. It is undoubtedly the latter and the latter alone who should have the status of a guarantor.
It is true that a situation may exist in which the principal acts at the same time in the capacity of guarantor. That situation is envisaged by Article 33 (2) and appropriately covered by an exception under Article 27 (3). It concerns, as I have already said, the payment of a cash deposit in respect of a single Community transit operation. However, that confirms a contrario that in the case of “comprehensive” guarantees, as in the case of forms of guarantee other than the payment of a cash deposit, even if they refer to single transit operations, the guarantor is a separate person from the principal. The distinction also emerges in other provisions of the regulation in question, which I will just mention: Article 28 (1), which provides for the designation by the guarantor of a third person “who also will stand as guarantor for the principal”, Article 32, which enables by a single guarantee a number of transit operations to be covered by the guarantor “whoever the principal may be”, Annexes F and G (referred to in Articles 29 (1) and 30 (3)) containing specimen guarantees in which a clear distinction is drawn between the guarantor and the principal.
Besides, not even the plaintiff in the present case disputes that except where a cash deposit is paid, the guarantor is a separate person from the principal. The plaintiff is endeavouring to widen the scope of the term “guarantor”, in connection with Article 35, to such an extent as to include both the principal who has provided the guarantee (or, more accurately, “who has obtained a guarantor”) and the person who has undertaken the obligations peculiar to a guarantor. That solution is not only contrary to the system of the regulation but seems to be manifestly illogical. It assumes that by employing a single term, Article 35 has designated two persons whose obligations are separate by nature and different in scope (it is sufficient to compare Articles 13 and 27 (1) to dispel any doubts in that regard). It is also possible to conceive, though I believe wrongly, that Article 35 intended to refer to the principal rather than to the guarantor, but it is difficult to see how it could refer to both except in the borderline case in which a single person acts in both capacities.
As for the arguments which Hudig has attempted to deduce from the Dutch version of Regulation (EEC) No 542/69, they give rise in my opinion to at least three fundamental objections. First, there is no justification for attaching any significance to the resemblance between the expression used in Article 27 (1) and that used in Article 35. The conclusions which I have illustrated above could and should, by adopting a consistent approach, also have been drawn from the Dutch text. In other words it should have been possible to deduce that the duty of the principal to provide a guarantee, in the manner specified by Article 27 (3), certainly does not confer upon him the status of a guarantor or of a person jointly and severally liable under a guarantee. Secondly, the doubts surrounding the exact significance of a provision of Community law in a text drawn up in one of the Community languages should lead to a comparison with the texts drafted in the other languages and, in the case of the regulation under discussion, the texts other than the Dutch text do not use similar expressions in Article 27 (1) or in Article 35 with the result that it is far more difficult to regard the principal as having been included in the concept of guarantor. Finally, the amendment of the Dutch terminology in Article 35 of Regulation (EEC) No 222/77 of 13 December 1976 — the words “degene die zekerheid heeft gesteld” have been replaced by the term “de borg” which undoubtedly denotes the guarantor — could not be regarded as reflecting a fundamental change in the system. In reality, that amendment reflects merely a desire to eliminate the ambiguities raised by the terminology previously used (in fact the Italian and German texts were left unchanged). Accordingly, the amendment, which, it is worth noting, is contained in what amounts to a single text on the matter, has an interpretative function and is not affected by the criterion of the inapplicability of a new text to a situation which occurred before it came into force.
On the basis of the above considerations, the first question submitted by the Netherlands court should be answered in the negative. When the principal has furnished a comprehensive guarantee, within the meaning of Article 27 (2) of Regulation (EEC) No 542/69, as has occurred in the case in point and as is apparent from the manner in which the question has been formulated, another person has necessarily been required to provide a joint and several guarantee and only that person has the status of a guarantor within the meaning of Article 35 (1). However, even if the principal had furnished the guarantee in the exceptional form provided for by Article 33 (2), that is to say by paying a cash deposit himself, release from his obligations, on the basis of the discharge of the Τ 1 document, should be understood as referring only to those obligations undertaken in his capacity as guarantor. The person concerned would therefore be entitled to recover the deposit paid but Article 35 does not permit the assumption to be made that he would at the same time be released from the obligations referred to in Article 13.
The truth is that Article 35 has a bearing on the legal position of the guarantor and not on that of the principal. The effect on the principal of the discharge of the Τ 1 document is a matter which falls outside the scope of that provision (and has not, moreover, been raised by the court hearing the main action). It might be possible to rely on the logic of the system to deduce from it that the principal and not only the guarantor is released from his obligations following the discharge of the Τ 1 document but it is certainly impossible to come to that conclusion by interpreting Article 35.
4.
The second question referred to the Court of Justice by the Netherlands court is subject to the first question's being answered in the affirmative. Since that condition cannot in my opinion be fulfilled, no purpose is served by looking into the question whether the decision to discharge the Τ 1 document may be revoked. Let me say, however, that the national administrative authorities may not be denied the power to revoke a decision adopted under Community legislation if certain elements come to light which are such as to vitiate the actual legal basis of the decision. In principle, revocation is fully justified when the administration, after taking a decision to discharge a Τ 1 document as in the present case, establishes the existence of fresh circumstances of which the persons concerned were or should have been aware at the time of discharge and which are such as to stand in the way of the adoption of the above-mentioned decision. I would say, in fact, that in cases of that kind, the correct application of Community law and the requirement that those subject to the administration must be treated in a uniform manner impose an obligation on the national authorities to reconsider the previous measure, subject to compliance with the conditions which the national law applicable lays down for the valid adoption of an act of revocation.
5.
In conclusion, therefore, I propose that the Court, in reply to the questions referred to it for a preliminary ruling by the College van Beroep voor het Bedrijfsleven by decision of 3 June 1980, rule as follows:
Article 35 (1) of Regulation (EEC) No 542/69 of the Council (in the version in force at the end of October 1976) should be interpreted as meaning that the term “the guarantor” denotes the person who has undertaken the obligation to provide a guarantee, within the meaning of Article 27 (3) of the same regulation, and not the principal who has “furnished a guarantee” by obtaining a comprehensive joint and several guarantee from that person.
(
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)	Translated from the Italian.