1 By order dated 19 December 198, which was received at the Court on 24 October 1989, the Corte Suprema di Cassazione referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 35 of Council Regulation (EEC) No 222/77 of 13 December 1976 on Community transit (Official Journal 1976 L 38, p. 1).
2 The question arose in proceedings between Berner Allgemeine Versicherungsgesellschaft, a Swiss insurance company (hereinafter referred to as "Berner") and the Amministrazione delle Finanze dello Stato, concerning the obligations arising under a guarantee furnished by Berner pursuant to Article 27 of Regulation No 222/77.
3 Council Regulation (EEC) No 222/77, which codifies the Community transit procedure first set up by Council Regulation (EEC) No 542/69 of 18 March 1969 (Official Journal, English Special Edition 1969 (I), p. 125), provides for a "Community external transit" procedure for goods which do not satisfy the conditions laid down in Articles 9 and 10 of the EEC Treaty. That procedure is governed by Title II (Articles 12 to 38) of the regulation.
4 Article 12 provides that any goods that are to be carried under the procedure for external Community transit are to be covered by a T 1 declaration. The T 1 declaration is to be signed by the person who requests permission to effect an external Community transit operation, called in Article 13 the "principal", and must be produced at the office of departure. According to Article II(c), "office of departure" means the customs office where the Community transit operation begins. Article 17 provides, inter alia, that the office of departure is to register the T 1 declaration, and prescribe the period within which the goods must be produced at the office of destination.
5 Article 27 provides that: "In order to ensure collection of the duties and other taxes which each Member State is authorized to charge in respect of goods passing through its territory in the course of Community transit, the principal shall furnish a guarantee...".
6 Article 35 of the regulation provides as follows: "The guarantor shall be released from 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. When 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 the expiration of a period of 12 months from the date of registration of the T 1 declaration."
7 Following the amendments made to Regulation 222/77 by Council Regulation (EEC) No 3813/81 of 15 December 1981, which has been in force since 1 January 1983 (Official Journal L 383, p. 28), the second paragraph of that provision has been replaced by the following: "When the guarantor has not been notified by the competent customs authorities of the Member State of departure of the non-discharge of the T 1 document, he shall likewise be released from his obligations upon expiry of a period of 12 months from the date of registration of the T 1 declaration."
8 Pursuant to the agreement concluded between the European Economic Community and the Swiss Confederation (Council Regulation (EEC) No 2812/72 of 21 November 1972 (Official Journal 1972 L 294, p. 1)), in force since 1 January 1974 (information published in Official Journal L 334 of 5 December 1973, p. 13), the rules on Community transit apply to the movement of goods between two points situated in the Community via the territory of the Swiss Confederation, whether the goods are consigned direct, with or without transhipment in Switzerland, or reconsigned from Switzerland, where appropriate after storage in a customs warehouse. Those rules may also apply to any other carriage of goods through the territory of the Community and the territory of Switzerland.
9 It appears from the documents in the case that in October 1978 the Swiss customs office at Locarno-Cadenazzo (office of departure) issued two T 1 certificates for goods intended for home use in the Kingdom of Belgium. Nevertheless, the goods in question were unlawfully released for consumption in Italy.
10 Berner, having stood as guarantor for the operation in accordance with the abovementioned rules, was notified by the Swiss customs service in July 1979 of the non-discharge of the T 1 documents.
11 In January 1982 the Como customs office served a demand for the payment of the sum of LIT 6 250 000 on account of the non-discharge of the abovementioned T 1 documents. The guarantor contested the demand before the Tribunale di Milano [Milan District Court], arguing, in particular, that it had not been notified of the non-discharge by the office of departure, contrary to Article 35 of Regulation No 222/77 in the version then in force. The Amministrazione delle Finanze dello Stato [State Finance Administration] argued, on the other hand, that the notification of non-discharge had been served on the guarantor by a competent Swiss authority within the period prescribed.
12 The dispute came before the Corte Suprema di Cassazione [Supreme Court of Cassation], which, with regard to the interpretation of the second paragraph of Article 35 of Regulation No 222/77, observed that the new wording, which entered into force after the facts of the dispute and which refers in general terms to "the competent customs authorities of the Member State of departure" instead of "the office of departure", could be interpreted either as a clarification of the original text or, on the other hand, as an innovation.
13 The Corte Suprema di Cassazione therefore suspended proceedings and put the following question to the Court for a preliminary ruling: "Is Article 35 of Council Regulation No 222/77 of 13 December 1976 on Community transit - which, in its original wording, provides that when 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 the expiration of a period of 12 months from the date of registration of the T 1 declaration - to be interpreted as meaning that the power to give the relevant notification is vested exclusively in the office of departure, or is that power also held by the office which under national provisions is of higher rank than the office of departure and can perform that function in its place?"
14 Reference is made to the Report for the Hearing for a fuller account of the legal background, the facts of the case before the national court and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
15 Berner and the Commission argue that, according to the version of Article 35 of Regulation No 222/77 in force at the time of the facts in question, the guarantor was only liable where he had been notified of the non-discharge of the T 1 document by the office of departure. That term has the specific meaning defined in Article 11(c), and is sufficiently clear to obviate the need for any clarification. Consequently, the amendment made to the provision in force as from 1 January 1983 confirms that it had a narrower sense in the original version.
16 The Italian Government states, on the other hand, that the aim of the disputed provision is for the guarantor to be informed with certainty within the prescribed period of his position under the guarantee obligation. The guarantor could not legitimately doubt the correctness of that information where it emanates from an office of higher rank than the office of departure. The purely literal interpretation of the provision in question should therefore give way to its logical interpretation. The amendment was therefore intended as clarification.
17 That argument cannot be accepted.
18 As the Court held in its judgment in Case 277/80 (SIC v Amministrazione dello stato [1982] ECR 629), the provision in question 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 by providing in particular for their release upon the expiry of a period of twelve months where they have not been notified of the non-discharge of the T 1 document.
19 Consequently, on the basis of that requirement for legal certainty, persons who act as guarantors for transit operations, not being directly linked to them, have a right to know clearly the conditions under which they are liable. Any uncertainty regarding those conditions is liable to increase the costs of furnishing a guarantee and would therefore be contrary to the very objectives of the Community transit procedure.
20 One of the functions of the office of departure under Article 35 of Regulation 222/77, as in force at the time in question, was precisely to notify the guarantor of the non-discharge of the T 1 document, so that the guarantor could expect that it would receive notification exclusively from the office of departure and not from some other authority, even one which was higher ranking than the office of departure. That approach is the only one which can satisfy the requirements of legal certainty.
21 Furthermore, since the obligation of the guarantor to pay duties and other charges which may be demanded if an offence or an irregularity is committed in the course of a transit operation may be considered to be a kind of penalty, it should be emphasized that, according to the case-law of the Court, a penalty, even of a non-criminal nature, may not be imposed unless it rests on a clear and unambiguous legal basis (judgment in Case 117/83 Koenecke v BALM [1984] ECR 3291).
22 In view of those considerations, the concept of office of departure as defined clearly and precisely in the provisions in question must not be departed from.
23 This interpretation is supported by the amendment made to the provision in issue by Regulation No 3813/81, which constitutes a substantive amendment and not an explanation of the version previously in force, as is clear from the first recital in the preamble to the amending regulation, which states that "... experience over several years of the application of the Community transit procedure ... has revealed that certain formalities required by that procedure can be made more flexible."
24 Consequently, the answer to the question submitted by the national court must be that Article 35 of Regulation No 222/77, in the version in force before its amendment by Regulation No 3813/81, must be interpreted as meaning that responsibility for notifying the guarantor of the non-discharge of the T 1 document rested exclusively with the office of departure.