C-328/89

4. In order to take advantage of the procedure for external Community transit, a person must furnish a guarantee in 2. Regulation No 222/77 establishes a accordance with Article 27 of the regu- Community transit procedure which is lation. According to the first paragraph of applicable when goods move between two that provision, the purpose of the guarantee points in the Community. According to the is:

* Original language: English.

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OPINION OF MR JACOBS —CASE C-328/89

6. Had the procedure followed its normal 'Is Article 35 of Council Regulation (EEC) course, the office of destination would, No 222/77 on Community transit — which, when the goods arrived there, have returned in its original wording, provides that when copies of the T l declarations to the office of the guarantor has not been notified by the departure, whereupon the documents would office of departure of the non-discharge of have been discharged and the guarantor the Tl document, he shall be released from released from his obligations. However, the his obligations on the expiration of a period goods were unlawfully placed on the market of 12 months from the date of registration in Italy and never reached Belgium. In July of the Tl declaration — to be interpreted as 1979, the Swiss customs authorities notified meaning that the power to give the relevant Berner that the Tl documents had not been notification is vested exclusively in the office discharged within the prescribed time limit. of departure, or is that power also held by In January 1982, the customs office at the office which under national provisions is

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BERNER ALLGEMEINE VERSICHERUNGSGESELLSCHAFT

13. If I found that provision at all ambiguous, I would take the view that the authorities of a Member State should not be entitled to require payment under a 10. That the Community legislature guarantee provided pursuant to Article 27 of intended the expression to bear the meaning the regulation except in circumstances given to it by Article 11(c) in the context of which are clearly laid down. As the Article 35 is confirmed, according to Berner Commission points out, an undertaking and to the Commission, by an amendment which provides guarantees in accordance made to the latter provision in 1981, after with that provision, often a bank or, as in the facts of this case took place. Regulation the present case, an insurance company, N o 3813/81 (Official Journal 1981 L 383, may have no control over the actual transit p. 28) replaced the expression 'the office of of the goods in question. In my view, it is departure' in the second paragraph of therefore entided to know the precise extent Article 35 of Regulation N o 222/77 with of its potential liability, particularly as the the expression 'the competent customs auth- obligation to pay may be regarded as a form orities of the Member State of departure'. In of penalty. As the Court emphasized in the view of Berner and of the Commission, Case 117/83 Könecke [1984] ECR 3291, that amendment provides confirmation, paragraph 11, 'a penalty, even of a should such confirmation be needed, that non-criminal nature, cannot be imposed the second paragraph of Article 35 in its unless it rests on a clear and unambiguous original form bore a narrower meaning. legal basis'.

14. This point is acknowledged by Article been, aware of the non-discharge could be 35 of the regulation, for, as the Court said required to pay under the guarantee into of its predecessor, that provision 'seeks to which he had entered. ensure certainty in the law for persons who act as guarantors for transit operations. . . ' : see Case 277/80 SIC v Amministrazione delle Finanze dello Stato [1982] ECR 629, paragraph 13. The need for legal certainty is self-evident in the field of customs law. 17. The Italian Government does not go as Moreover, uncertainty on the provisions in far as this in the present case, contending issue here would be liable to increase the merely that any official notification of costs of providing guarantees, and so would non-discharge is sufficient. However, other be detrimental to the objectives of the national authorities might wish to go transit procedure. further. If the strict terms of the contested legislation were set aside, it would be unclear precisely what formalities had to be completed before a guarantee could be called in. 15. I consider that the requirements of legal certainty are in this respect satisfied by the second paragraph of Article 35 of the regu- lation, in both its original and its amended forms, interpreted according to the natural 18. The Italian Government also claims that meaning of the words used. Those the practice of the Swiss customs authorities requirements would not in my view be was often to issue notifications of satisfied if Article 35 in its original form non-discharge centrally. This practice was were interpreted in the manner advocated authorized, in the view of the Italian by the Italian Government. Government, by Article 6(1) of the abovementioned Agreement between the Community and the Swiss Confederation. The first sentence of that provision states: 'Les bureaux de douane suisses compétents sont habilités à assumer notamment les 16. The Italian Government argues that fonaions des bureaux de départ, de passage, legal certainty would not be threatened by a de destination et de garantie.' more liberal interpretation of the contested provision, for no-one has suggested that Berner was unaware that the Tl documents had not been discharged. I am unable to accept this argument. If the decisive question was not who notified the guarantor 19. In my view, however, Article 6(1) of the of the non-discharge but simply whether the 1972 Agreement simply empowered the guarantor was aware of it, a guarantor appropriate Swiss customs offices to act in would find himself exposed to the risk that the same way as the customs offices of the notification, perhaps equivocal, from an Member States in giving effect to the unofficial source might subsequently be held Community transit procedure. It did not to have put him on notice that the T l empower a single Swiss institution to document had not been discharged. The perform functions which, in the Member question might also arise whether a States, were the responsibility of a number guarantor who was not, but ought to have of specified customs offices.

23. Moreover, the first recital to Regulation 21. Finally, the Italian Government argues No 3813/81 states that 'experience over that the failure of the Council to refer speci- several years of the application of the fically in the preamble to Regulation Community transit procedure... has No 3813/81 to the amendment to the revealed that certain formalities required by second paragraph of Article 35 of Regu- that procedure can be made more flexible'. lation No 222/77 means that that In my view, that statement is entirely amendment cannot be taken to have consistent with the view that that regulation effected any change of substance. made a substantive amendment to the Otherwise, it is argued, Regulation second paragraph of Article 35 of Regu- No 3813/81 would not satisfy the lation No 222/77 and that, before that requirements of Article 190 of the Treaty, amendment, the provision had to be given according to which regulations must 'state the narrower interpretation which I consider the reasons on which they are based'. to be its clear meaning.

24. I would therefore answer the question referred by the Corte Suprema di Cassazione as follows:

Article 35 of Regulation N o 222/77 of 13 December 1976, in the version in force prior to its amendment by Regulation N o 3813/81 of 15 December 1981, must be interpreted as meaning that the release of the guarantee may be refused only where the guarantor has been notified of the non-discharge of the T l document by the customs office where the Community transit operation began. Release of the guarantee may not be refused where the guarantor was notified of the non-discharge of the T l document by another customs authority of the State of departure, even if under the law of that State that authority has higher status than the aforementioned customs office.