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.