C-136/80

JUDGMENT OF 17. 9. 1981 — CASE 136/80 HUDIG EN PIETERS ν MINISTER VAN LANDBOUW EN VISSERIJ

CELEX: 61980CJ0136
Datum: 1981-09-17
Källa: eur-lex.europa.eu

In Case 136/80 REFERENCE to the Court under Article 177 of the EEC Treaty by the College van Beroep voor het Befrijfsleven [administrative court of last instance in matters of trade and industry], The Hague, for a preliminary ruling in the action pending before that court between

THE COURT (First Chamber) composed of: T. Koopmans, President of Chamber, A. O'Keeffe and G. Bosco, Judges, Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

On 29 October 1976 Hudig en Pieters BV, Rotterdam, the plaintiff in the main action (hereinafter referred to as “Hudig”), made a declaration at the office of the Collector of Customs and Excise, Rotterdam, for the transport by road vehicle from Rotterdam to Concorezzo (Milan) under the Community transit procedure of 960 sacks of milk powder coming from Australia.

In accordance with the provisions of Article 27 of Regulation (EEC) No 542/69 a guarantee in comprehensive form was provided for that transit operation. On the same day the collector's office at Rotterdam registered a Τ 1 declaration in accordance with the provisions of Article 17 of that regulation.

When he had not received within the prescribed period the third copy of that declaration which had to be returned to him, the collector by a letter of 30 December 1976 invited Hudig to provide him with evidence to show that the goods described in the document had left the country and had arrived at the office of destination.

On 12 January 1977 the collector advised Hudig that the Τ 1 declaration was regarded as discharged which gave ground to assume that the evidence required had been furnished by Hudig.

However when the third copy of the Τ 1 declaration was sent back to him the collector found that it bore false endorsements and declarations. On 23 April 1977 he therefore again asked Hudig to show that the goods had reached their destination or that they had been lost.

Hudig was not able to provide the evidence required and on 7 July 1977 Hudig was asked by the collector to pay the agricultural levy payable on the importation into the Community of milk powder from a non-member country.

On 2 September 1977 Hudig sent the Inspector of Customs and Excise at Rotterdam a statement of objection against that demand for payment. Although that inspector set aside the demand for formal reasons he still held that the Τ 1 declaration had to be regarded as undischarged because the endorsements and declarations which it bore had not been properly obtained. On 17 January 1978 Hudig received a new demand for payment which it again challenged before the inspector. When the inspector rejected its objections save to the extent of amending the amount payable by way of agricultural levy, Hudig brought an action before the College van Beroep voor het Bedrijfsleven.

Hudig argued before that court that the inspector's decision was incompatible with the first paragraph of Article 35 of Regulation (EEC) No 542/69 which states that “the guarantor (in the Dutch text ‘degene die zekerheid heeft gesteld’) shall be released from his obligations towards the Member States through which the goods were carried in the course of a Community transit operation when the Τ 1 document had been discharged at the office of departure”.

One of the arguments in support of its contention was that the expression “degene die zekerheid heeft gesteld” (the person who furnished a guarantee) refers to the person whom Article 11 of the regulation calls the “principal”, that is to say the person who “requests permission ... to carry out a Community transit operation and thereby makes himself responsible to the competent authorities for the execution of the operation in accordance with the rules” and who, under Article 27 (1), is obliged to “furnish a guarantee”.

By a judgment of 3 June 1980 the College van Beroep voor het Bedrijfsleven stayed the proceedings and referred the following questions to the Court of Justice 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 I 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 Τ 1 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?”

The judgment making the reference was lodged at the Court Registry on 6 June 1980.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC written observations were submitted by Hudig, represented by J. M. F. Finkensieper, of the Amsterdam Bar, and by the Commission of the European Communities, represented by Auke Haagsma and Pieter-Jan Kuyper, members of its Legal Department, acting as Agents.

On hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. By an order of 15 October 1980 it also decided pursuant to Article 95 (1) and (2) of the Rules of Procedure to assign the case to the First Chamber.

II — Observations submitted to the Court in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

Hudig first of all quotes the text of Articles 27 (1) and 35 of Regulation (EEC) No 542/69, as in force until 1 July 1977 when Regulation (EEC) No 542/69 was superseded by Council Regulation (EEC) No 222/77 of 13 December 1976 (Official Journal 1977, L 38, p. 1). The first of those provisions laid down that the principal was required to furnish a guarantee which under the third paragraph of the same article was to consist of the joint and several guarantee of a third person. Article 35 provided that “the guarantor” [in the English version] (“der Sicherungsgeber” in the German version, “le garant” in the French version, “il garante” in the Italian version, “degene die zekerheid heeft gesteld” in the Dutch version and “kautionisten” in the Danish version, the English and Danish versions being added in 1973) was to be released from his obligations when the T 1 document was discharged at the office of departure.

Relying on the Dutch version of Regulation (EEC) No 542/69 which used the same expression in both Article 27 (1) (“wordt door de aangever ... zekerheid gesteld”, meaning “the principal shall furnish a guarantee”) and Article 35 (“degene die zekerheid heeft gesteld”, meaning “the person who furnished a guarantee”), Hudig argues that the deduction from those provisions must be that after discharge of the T 1 document it was the “principal” who was discharged from his liabilities which consequently results in the discharge of the guarantor as well.

It adds that its opinion is shared by the Netherlands Minister of Finance who in his Decision of 7 November 1969 stated by way of explanation of Article 35 aforesaid that “the principal is discharged from his liabilities when the document in respect of which the security was provided is discharged at the office of departure”.

Subsequent conformation of the fact that Article 35 referred to both principal and guarantor is provided by Article 33 of the same regulation according to which an individual guarantee furnished for a single Community transit operation may consist of a cash deposit. In that case it is clear that Article 35 could be referring to one person only, that is to say, the principal.

It is only in Council Regulation (EEC) No 222/77, cited above, that there is mention for the first time in Article 35 of a single “guarantor”. Hudig observes however that that regulation entered into force on 1 July 1977 whilst the document in question was validated on 29 October 1976.

Having thus answered the first question of the national court in the affirmative Hudig goes on to deal with the second one. In this regard it points out that the T 1 document was discharged without any reservation as appears from a letter from the collector of 11 January 1977. Fort that reason Hudig believes that the collector no longer had the right subsequently to change his point of view and to regard the document as undischarged once more. In its opinion such conduct is far too much at variance with the principle of legal certainty.

In substance Hudig therefore concludes that:

The Dutch text of Article 35, as in force until 1 July 1977, can only lead to the conclusion that the expression “degene die zekerheid heeft gesteld” covers the principal as well;

By virtue of the same article notification of discharge by the office of departure has the effect of giving an absolute discharge.

According to Hudig such a solution, attaching importance to the legal protection of the citizen, is particularly necessary in a field of this kind concerned with customs provisions by virtue of which Hudig, through simply having completed as a customs consignor the declaration provided for in Article 17 of Regulation (EEC) No 542/69, is strictly made liable for malpractices in which it has had no part.

The Commission of the European Communities observes that Regulation (EEC) No 542/69 distinguishes between two forms of guarantee: a comprehensive or individual guarantee provided for in Article 27, and a cash deposit referred to in Article 33 (2). In the first case two persons are always involved, namely the principal and the guarantor, whilst in the second case one person alone might act in both capacities.

The Commission believes that the words “degene die zekerheid heeft gesteld” may not in any way be taken as referring both to the principal and the guarantor, or, in the case of a cash deposit made by the principal, to the person who makes the declaration both in his capacity as principal and as the person furnishing the guarantee. Had the Community legislature wished to discharge the “principal” from his liabilities by Article 35 there would have been no difficulty in using that term which, moreover, is used in the regulation and specially defined in Article 11.

The Commission adds that if such a conclusion is clearly discernible from the Dutch version of the article it is still more apparent from a reading of the other versions which all use terms designating “the guarantor” with no chance of misunderstanding.

Although it is true that the Dutch text of Council Regulation (EEC) No 222/77 of 13 December 1976, which consolidated the earlier regulations on Community transit, replaced the words “degene die zekerheid heeft gesteld”, contained in Regulations (EEC) Nos 542/69, cited above, and 1079/71 of the Council of 25 May 1971 (Official Journal, English Special Edition 1971 (I), p. 285), with the term “borg” (guarantor), in the Commission's view that does not afford a ground for arguing that it was desired to give a different meaning to Article 35. The preamble to Regulation (EEC) No 222/77 does not refer to any such amendment. As Regulation (EEC) No 222/77 is a consolidating regulation it may therefore be assumed that by not expressly evincing the intention to amend them it adopted the provisions of the previous regulation as they were.

Since the Commission takes the view that the term “degene die zekerheid heeft gesteld” contained in Article 35 may never mean the “principal” it believes that there is no need to reply to the second question which was asked only in the event of the first question being answered in the affirmative.

It therefore suggests replying in the following manner to the first question put by the national court:

“The first paragraph of Article 35 of Regulation (EEC) No 542/69 of the Council of 18 March 1969 on Community transit must be interpreted as meaning that the term ‘degene die zekerheid heeft gesteld’ means only the person who acts as guarantor in accordance with Article 27 of that regulation.”

III — Oral procedure

The Commission of the European Communities, represented by P.J. Kuyper, a member of its Legal Department, acting as Agent, presented oral argument at the sitting on 7 May 1981.

The Advocate General delivered his opinion at the sitting on 18 June 1981.

Decision

1. By judgment dated 3 June 1980 which was received at the Court on 6 June 1980 the College van Beroep voor het Bedrijfsleven [administrative court of last instance in matters of trade and industry], The Hague, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of the first paragraph of Article 35 of Regulation No 542/69 of the Council of 18 March 1969 on Community transit (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 which have to be undergone when they cross internal frontiers Regulation No 542/69 of the Council, as thus amended, provides for a system of Community transit which, in the case of goods arriving in the customs territory of the Community from a non-member country, is the system of external Community transit governed by Articles 12 to 38 of the regulation.

3. According to Article 12 (1) and (3) of that regulation any goods that are to be carried under the procedure for external Community transit are to be covered by a declaration on a Τ 1 form complying with Annex A to the regulation and signed by the person who requests permission to effect the transit operation, namely the “principal” who, according to the definition contained in Article 11 (a) of the regulation, “makes himself responsible to the competent authorities for the execution of the operation in accordance with the rules”.

4. According to Article 17 of the regulation an external Community transit operation begins with the registration of the Τ 1 declaration at the office of departure and, according to Article 26, ends with the office of destination sending a copy of that declaration to the office of departure.

5. Article 27 (1) of the regulation provides on the other hand that “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”. Paragraph 2 of that article states that “the guarantee may be comprehensive, covering a number of Community transit operations, or individual, covering a single Community transit operation”. Paragraph 3 further provides 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”.

6. According to the Netherlands version of the first paragraph of Article 35 of the regulation, the person who furnished a guarantee (“degene die zekerheid heeft gesteld”) “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 Τ 1 document has been discharged at the office of departure”.

7. According to the judgment making the reference for a preliminary ruling, on 29 October 1976 the appellant in the main action made a declaration, within the meaning of Article 12 (3) of Regulation No 542/69, to the Collector of Customs and Excise, Rotterdam, for the external Community transit of certain quantities of milk powder coming from Australia and intended for release into free circulation in Italy. For the purpose of the transit operation a comprehensive guarantee was provided under Article 27 of that regulation in the form of a joint and several guarantee of a third person in accordance with paragraph 3 thereof.

8. The collector's office, being the office of departure for the Community transit operation, first asked the appellant in the main action to provide evidence to show that the goods described in the document had left the Netherlands and had arrived at the office of destination in Italy. In view of the evidence provided by the appellant the collector's office informed it that the Τ 1 document was to be considered as discharged.

9. However, when the third copy of the Τ 1 document was returned to the collector's office at Rotterdam, it was found to bear false endorsements and declarations, and that office again asked the appellant to provide evidence to show that the goods in question had actually reached their destination or that they had been lost.

10. The appellant was not able to provide the evidence required and on 7 July 1977 it was asked by the collector's office to pay the agricultural levy due on the importation into the Community of milk powder from a non-member country.

11. The company concerned challenged the lawfulness of the imposition of that levy. Relying in particular on the first paragraph of Article 35 of Regulation No 542/69 it contended that, once the Τ 1 document was discharged, it was released, just like the guarantor, from its obligations towards the Member States, in particular the Netherlands, through which the goods were carried in the course of the Community transit operation in question.

12. The Netherlands authorities argued that under that provision the discharge of the Τ 1 document at the office of departure released only the “guarantor” and that in the particular case of a comprehensive guarantee that expression covers only a person other than the principal.

13. In order to resolve the issue the College van Beroep voor het Bedrijfsleven referred the following questions to the Court for a preliminary ruling:

II. In the event of Question I 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 Τ 1 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?”

The first question

14. Having regard to the particular facts of the case referred to by the national court the first question basically seeks to determine whether, where the guarantee provided for by Article 17 of Regulation No 542/69 of the Council on Community transit is a comprehensive one consisting of the joint and several guarantee of a natural or legal third person, the expression “degene die zekerheid heeft gesteld” (the person who has furnished a guarantee), appearing in the Dutch text of the first paragraph of Article 35 of that regulation as in force on the date in question, covers the principal, too, as well as the guarantor.

15. It is common ground that, owing to its use at the date in question of the words “degene die zekerheid heeft gesteld”, the Netherlands version of the first paragraph of Article 35 is not without ambiguity in this regard whereas in order to designate that same person most of the other language versions of that provision used at that date the term “surety” or “guarantor”. Council Regulation No 222/77 of 13 December 1976 (Official Journal 1977, L 38, p. 1), which entered into force after the events with which this case is concerned, replaced the expression in question in the Netherlands version by a term designating the guarantor alone (“borg”).

16. However, it is common ground, too, that, as regards the guarantee, Article 27 (1) of Regulation No 542/69 provides in all the language versions that “the principal shall furnish a guarantee”.

17. In view of the ambiguity which may therefore arise from the expression “the person who has furnished a guarantee” contained in the Netherlands version of the first paragraph of Article 35 of the regulation, that article should be construed in accordance with the. aims and general scheme of all the provisions of which it forms part.

18. An examination of those provisions shows that in the performance of external Community transit operations there is a distinction between the principal and the guarantor, particularly in regard to the extent of the obligations which both assume towards the competent national authorities and the conditions on which they are released from them.

19. As is apparent from Articles 11 (a) and 13 (b) of the regulation in question, the principal, namely the person who requests permission to carry out an external Community transit operation and who for that purpose completes and signs the Τ 1 transit document at the office of departure, undertakes to ensure “the execution of the operation in accordance with the rules” 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”.

20. In the event of its being found that offences or irregularities have been committed in the course of a Community transit operation, Article 36 (1) of Regulation No 542/69 provides that the Member State or States concerned are to effect “the recovery of duties or other charges” relating to the goods in question from the principal “without prejudice to the institution of criminal proceedings”.

21. As far as the guarantor is concerned, however, it is apparent from the very purpose of the provision of the guarantee as required by Article 27 (1) of Regulation No 542/69 that the obligations which the guarantor assumes as such towards the competent national authorities are not the same as those assumed by the principal but are intended to ensure that the competent national authorities receive any duties and charges which one of the Member States is entitled to require in respect of goods carried through its territory.

22. Where, moreover, the guarantee is one provided under Article 27 (3) of the regulation, there is a distiction between the obligations of the principal and those of the guarantor in addition to the distinction between the two persons.

23. Although paragraph 1 of Article 27 of the regulation provides that the “principal shall furnish a guarantee”, paragraph 3 states in fact 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”.

24. Article 33 (2) of the regulation provides that the guarantee may be a cash deposit and therefore it does not rule out the principal's being the guarantor at the same time. Since however, as is apparent from paragraph 1, that possibility is restricted to the case in which the guarantee is provided individually for one Community transit operation, it follows that where the guarantee is a comprehensive guarantee in respect of several Community transit operations and for that reason is provided in the form of a joint and several guarantee, the provision of the guarantee entails the participation of a third natural or legal person.

25. In the particular case of a comprehensive guarantee consisting of the joint and several guarantee of a third person, that distinction between the principal and the guarantor is moreover apparent from the wording of the guarantee document itself, as set out in Annex F to the regulation, which provides that the person signing it “guarantees” sums owed by the principal on account of any infringements or irregularities committed by the principal in the course of Community transit operations.

26. Finally that distinction is borne out by Article 28 (1) of the regulation which, by providing that “the person standing as guarantor ... shall be responsible for designating, in each of the Member States through which the goods will be carried in the course of Community transit, a natural or legal third person who will also stand as guarantor for the principal”, implies that where goods are carried through the territory of several Member States during the course of an external Community transit operation there are several guarantors for one and the same principal.

27. In view of those provisions it would be a misapprehension of the objectives and the scheme of the external Community transit rules, particularly where the guarantee consists of the joint and several guarantee of a third person, to construe the words “the person who has furnished a guarantee” appearing in the Dutch version of the first paragraph of Article 35 of Regulation No 524/69, or the word “guarantor” appearing in the other versions, as meaning both the principal and the guarantor.

28. The answer to the first question should therefore be that the first paragraph of Article 35 of Regulation No 542/69 of the Council of 18 March 1969, in the version in force on 29 October 1976, must be interpreted as meaning that the words “degene die zekerheid heeft gesteld” do not cover the principal but mean only the person who, in the case of the joint and several guarantee referred to in Article 27 (3) of that regulation, acts as guarantor in accordance with that regulation.

The second question

29. The national court asked the second question only in the event of the first question being answered in the affirmative. In view of the answer to that question it is not necessary to consider the second question.

Costs

The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since the proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT (First Chamber) in answer to the questions referred to it by the College van Beroep voor het Bedrijfsleven, The Hague, by judgment of 3 June 1980, hereby rules: