C-136/80

J U D G M E N T O F T H E C O U R T (FIRST CHAMBER) 17 SEPTEMBER 1981

Hudig en Pieters BV ν Minister van Landbouw en Visserij (reference for a preliminary ruling from the College van Beroep voor het Bedrijfsleven)

(Community transit)

Case 136/80

Free movement of goods — Community transit — External Community transit — Tl document — Discharge at the office of departure — Effect — Release of the guarantor — Concept of "guarantor" (Art. 27 (3) and the first paragraph of Art. 35 of Regulation (EEC) No 542/69 of the Council, as amended by Regulation No 1079/71)

The first paragraph of Article 35 of do not cover the principal but mean only Regulation No 542/69 of the Council, in the person who, in the case of the joint the version in force on 29 October 1976, and several guarantee referred to in must be interpreted as meaning that the Article 27 (3) of that regulation, acts as words "degene die zekerheid heeft guarantor in accordance with that regu­ gesteld" appearing in the Dutch version lation.

JUDGMENT OF 17. 9. 1981 — CASE 136/80

on the interpretation of the first paragraph 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),

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

23 April 1977 he therefore again asked the regulation calls the "principal", that Hudig to show that the goods had is to say the person who "requests reached their destination or that they permission . . . to carry out a Community had been lost. transit operation and thereby makes himself responsible to the competent authorities for the execution of the Hudig was not able to provide the operation in accordance with the rules" evidence required and on 7 July 1977 and who, under Article 27 (1), is obliged Hudig was asked by the collector to pay to "furnish a guarantee". the agricultural levy payable on the importation into the Community of milk powder from a non-member country. By a judgment of 3 June 1980 the College van Beroep voor het Bedrijfsleven stayed the proceedings and On 2 September 1977 Hudig sent the referred the following questions to the Inspector of Customs and Excise at Court of Justice for a preliminary ruling: Rotterdam a statement of objection against that demand for payment. " I . Must the first paragraph of Article Although that inspector set aside the 35 of Regulation (EEC) N o 542/69 demand for formal reasons he still held of the Council as worded and that the Τ 1 declaration had to be applicable at the time of the regarded as undischarged because the declaration in question (29 October endorsements and declarations which it 1976) be so interpreted that the bore had not been properly obtained. On words 'degene die zekerheid heeft 17 January 1978 Hudig received a new gesteld' must be taken to cover the demand for payment which it again principal who has furnished a challenged before the inspector. When comprehensive guarantee within the the inspector rejected its objections save meaning of Article 27 of the regu­ to the extent of amending the amount lation? payable by way of agricultural levy, Hudig brought an action before the College van Beroep voor het II. In the event of Question I being Bedrijfsleven. answered in the affirmative must the first paragraph of the said Article 35, bearing in mind the intention of that Hudig argued before that court that the paragraph to provide legal certainty, inspector's decision was incompatible be so interpreted that the release of with the first paragraph of Article 35 of the principal by a notification to him Regulation (EEC) N o 542/69 which by the office of departure stating that states that "the guarantor (in the Dutch the Τ 1 document is discharged text 'degene die zekerheid heeft gesteld') cannot be nullified by a subsequent shall be released from his obligations notification by that office to the towards the Member States through principal stating that the same which the goods were carried in the document is still to be treated as course of a Community transit operation undischarged?" when the Τ 1 document had been discharged at the office of departure". The judgment making the reference was One of the arguments in support of its lodged at the Court Registry on 6 June contention was that the expression 1980. "degene die zekerheid heeft gesteld" (the person who furnished a guarantee) In accordance with Article 20 of the refers to the person whom Article 11 of Protocol on the Statute of the Court of

Justice of the EEC written observations Relying on the Dutch version of Regu- were submitted by Hudig, represented by lation (EEC) No 542/69 which used the J. M. F. Finkensieper, of the Amsterdam same expression in both Article 27 (1) Bar, and by the Commission of the (“wordt door de aangever … zekerheid European Communities, represented by gesteld”, meaning “the principal shall Auke Haagsma and Pieter-Jan Kuyper, furnish a guarantee”) and Article 35 members of its Legal Department, acting (“degene die zekerheid heeft gesteld”, as Agents. meaning “the person who furnished a guarantee”), Hudig argues that the On hearing the report of the Judge- deduction from those provisions must be Rapporteur and the views of the that after discharge of the T 1 document Advocate General, the Court decided to it was the “principal” who was open the oral procedure without any discharged from his liabilities which preparatory inquiry. By an order of 15 consequently results in the discharge of October 1980 it also decided pursuant to the guarantor as well.

security was provided is discharged at P r o t o c o l on t h e S t a t u t e of the office of departure”. t h e C o u r t of J u s t i c e of t h e EEC Subsequent conformation of the fact that Article 35 referred to both principal and Hudig first of all quotes the text of guarantor is provided by Article 33 of Articles 27 (1) and 35 of Regulation the same regulation according to which (EEC) N o 542/69, as in force until 1 an individual guarantee furnished for a July 1977 when Regulation (EEC) No single Community transit operation may 542/69 was superseded by Council Regu- consist of a cash deposit.

Hudig observes provided that “the guarantor” [in the however that that regulation entered into English version] (“der Sicherungsgeber“ force on 1 July 1977 whilst the document in the German version, “le garant” in the in question was validated on 29 October French version, “il garante” in the Italian 1976. version, “degene die zekerheid heeft gesteld” in the Dutch version and Having thus answered the first question “kautionisten” in the Danish version, the of the national court in the affirmative English and Danish versions being added Hudig goes on to deal with the second in 1973) was to be released from his one. In this regard it points out that the obligations when the T 1 document was T 1 document was discharged without discharged at the office of departure. any reservation as appears from a letter

— The Dutch text of Article 35, as in The Commission adds that if such a force until 1 July 1977, can only lead conclusion is clearly discernible from the to the conclusion that the expression Dutch version of the article it is still "degene die zekerheid heeft gesteld" more apparent from a reading of the covers the principal as well; other versions which all use terms designating "the guarantor" with no : — By virtue of the same article chance of misunderstanding. notification of discharge by the office of departure has the effect of giving Although it is true that the Dutch text of an absolute discharge. Council Regulation (EEC) No 222/77 of 13 December 1976, which consolidated According to Hudig such a solution, the earlier regulations on Community attaching importance to the legal transit, replaced the words "degene die protection of the citizen, is particularly zekerheid heeft gesteld", contained in necessary in a field of this kind Regulations (EEC) Nos 542/69, cited concerned with customs provisions by above, and 1079/71 of the Council of 25 virtue of which Hudig, through simply May 1971 (Official Journal, English having completed as a customs consignor Special Edition 1971 (I), p. 285), with the declaration provided for in Article 17 the term "borg" (guarantor)1, in the of Regulation (EEC) No 542/69, is Commission's view that does not afford strictly made liable for malpractices in a ground for arguing that it was desired which it has had no part. to give a different meaning to Article 35. The preamble to Regulation (EEC) No The Commission of the European 222/77 does not refer to any such Communities observes that Regulation amendment. As Regulation (EEC) No (EEC) No 542/69 distinguishes between 222/77 is a consolidating regulation it two forms of guarantee: a comprehensive may therefore be assumed that by not or individual guarantee provided for in expressly evincing the intention to amend Article 27, and a cash deposit referred to them it adopted the provisions of the in Article 33 (2). In the first case two previous regulation as they were. persons are always involved, namely the principal and the guarantor, whilst in the Since the Commission takes the view second case one person alone might act that the term "degene die zekerheid in both capacities. heeft gesteld" contained in Article 35 may never mean the "principal" it The Commission believes that the words believes that there is no need to reply to "degene die zekerheid heeft gesteld" the second question which was asked may not in any way be taken as referring only in the event of the first question both to the principal and the guarantor, being answered in the affirmative.

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”.

HUDIG EN PIETERS ν MINISTER VAN LANDBOUW EN VISSERIJ

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".

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.

1 1 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.

1 3 In order to resolve the issue the College van Beroep voor het Bedrijfsleven referred the following questions to the Court 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 sub­ sequent notification by that office to the principal stating that the same document is still to be treated as undischarged?"

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.

JUDGMENT OF 17. 9. 1981 — CASE 136/80

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.

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.

JUDGMENT OF 17. 9. 1981 — CASE 136/80

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:

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.

Koopmans O'Keeffe Bosco

Delivered in open court in Luxembourg on 17 September 1981.

J. A. Pompe T. Koopmans Deputy Registrar President of the First Chamber