Report for the Hearing in Case C-328/89
I — Legislative background
1. Council Regulation (EEC) No 542/69 of 18 March 1969 (Official Journal, English Special Edition 1969 (I), p. 125) adopted the Community transit procedure to facilitate the transport of goods within the Community and in particular to simplify the formalities to be carried out when internal frontiers are crossed.
2. That regulation, since amended and supplemented, was codified by Council Regulation (EEC) No 222/77 of 13 December 1976 on Community transit (Official Journal L 38, p. 1).
3. According to Article 1 of that regulation, the Community transit procedure includes a procedure for external Community transit and a procedure for internal Community transit. Generally speaking, the procedure for external Community transit applies to goods which do not satisfy the conditions laid down in Articles 9 and 10 of the EEC Treaty, while the procedure for internal Community transit applies to goods which satisfy those conditions.
4. The procedure for external Community transit is regulated under Articles 12 to 38 of Title II of that regulation.
5. Article 12 provides that any goods that are to be carried under the procedure for external Community transit are to e covered by a Tl declaration, that is to say, a declaration on form Tl. The Tl declaration is to be signed by the person who requests permission to effect an external Community transit operation, named the principal, and must be produced att the office of departure. According to Article 11(c), Office of departure means the customs office where the Community transit operation begins.
6. Pursuant to Article 17(1), the office of departure is to register the Tl declaration, prescribe the period within which the goods must be produced at the office of destination, and take such measures for identification as it considers necessary, and according to Article 19(1), [t]he copies of the Tl document delivered to the principal... by the office of departure must accompany the goods.
7. Finally, Article 26 provides that [t]he office of destination shall record on the copies of the Tl document the details of controls and ... send a copy to the office of departure ... .
8. 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 ... , which ... shall consist of the joint and several guarantee of a natural or legal third person...
9. Article 35 of the regulation in question provides as follows:
10. Following the amendments 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:
11. 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 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. These rules may also apply to any other carriage of goods throughout the territory of the Community and the territory of Switzerland.
12. That agreement has been adapted in accordance with the changes made to Community rules and, in particular, to Article 35, cited above (Decision No 2/82 of the EEC-Switzerland Joint Committee of 15 October 1982 (Official Journal L 355, p. 52), and Council Regulation (EEC) No 3330/82 of 3 December 1982 (Official Journal L 335, p. 51)).
II — Procedure in the main proceedings and the preliminary question
13. It appears from the question referred by the national court and from the observations submitted to the Court that, on 12 October 1978, the Swiss Customs office at Locarno-Cadenazzo (office of departure) issued two Tl certificates for goods intended for home use in the Kingdom of Belgium (office of destination: customs office at Antwerp).
14. Nevertheless, the goods in question entered Italy through the customs office at Ponte-Chiasso and were unlawfully released for consumption in Italy.
15. The company Berner Allgemeine Versicherungsgesellschaft (hereinafter referred to as Berner), whose registered office is in Berne (Switzerland), having stood as guarantor for the operation in accordance with the abovementioned rules, was notified by the Swiss customs administration by letter of 3 July 1979 of the non-discharge of the Tl documents.
16. On 29 January 1982 the Como customs office served a demand on the guarantor for the payment of the sum of LIT 6250000 on account of the non-discharge of the abovementioned Tl documents. The guarantor contested the demand before the Tribunale di Milano (Milan District Court), contending in particular, that it had not received the notification required under Article 35 of Regulation No 222/77. By judgment of 17 March 1983 that court allowed the appeal.
17. The Amministrazione delle Finanze dello Stato (State Finance Administration) appealed against that judgment; it contended that the notification of non-discharge had been served on the guarantor within the time-limit prescribed by Article 35. By judgment of 18 December 1984, the Corte d'Appello (Court of Appeal), Milan, allowed the appeal.
18. Berner appealed on a point of law against that decision.
19. The appeal was brought before the Corte Suprema di Cassazione (Supreme Court of Cassation), which observed in its order of 19 December 1988 that the new wording of Article 35, cited above, which, in any event, is not applicable to the present case radone temporis, speaks in general terms of the competent customs authorities of the Member State of departure instead of the office of departure and that it could be interpreted either as a mere clarification of the original text or, on the other hand, as an innovation.
20. In view of those considerations, the national court decided that it was appropriate to suspend the proceedings until the Court had given a preliminary ruling on the following question:
21. The order was received at the Court Registry on 24 October 1989.
III — Written procedure
22. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations were submitted on 2 February 1990 by the Commission of the European Communities, represented by Guido Berardis, a member of its Legal Department, acting as Agent; on 5 February 1990 by Berner, the applicant in the main proceedings, represented by Angelo Pesce, of the Milan Bar; and on 15 February 1990 by the Italian Government, represented by Ivo Braguglia, Avvocato dello Suto, acting as Agent.
23. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court, by decision of 21 November 1990, made pursuant to Article 95(1) and (2) of the Rules of Procedure, assigned the case to the Fourth Chamber and decided to open the oral procedure without any preparatory inquiry.
Written observations submitted to the Court
24. Bemer, the applicant in the main proceedings, observes, in the first place, that the provision which applies ratione temporis to the present case is that of the second paragraph of Article 35 of Regulation No 222/77. As regards the wording of that provision, there is no terminological difficulty in any of the language versions. That also applies to the definition of office of departure contained in Article 11 of the regulation.
25. Berner claims that during the period in which the provision in question was in force, the term bureau of departure was a binding term and did not allow substitutions under national rules, and that if the notification of the non-discharge of the Tl document ws not sent by that office it was devoid of any effect.
26. The office of departure carries out specific functions. It issues an annotates the Tl document; it identifies and seals the goods which are to be transported; it lays down which are to be the offices of transit; it receives from the office of destination the discharged copy which must be sent to it and, finally, where the above formalities have not been observed, it notifies the guarantor of the non-discharge of the Tl document.
27. Thus, in the system established by Regulation No 222/77, originally created by Regulation 542/69, the office of departure constitutes the substantial bureaucratic basis of that system and has exclusive competence from which no decision or practice of the national customs authorities may derogate.
28. Consequently, as regards the protection of the legitimate expectation of the guarantor, the guarantor should expect the notification of non-discharge from the office of departure and should not need to inquire into the competence of another office, even if it is of higher rank.
29. In Berner's opinion, it is not possible to interpret the earlier text retrospectively by reference to the new wording of Article 35, in force since 1 January 1983, which assigns in general terms the responsibility for notification of non-discharge to the competent customs authorities of the Member State of the office of departure. That is a new rule applicable for the future.
30. Berner refers to the judgment of the Court in Case 98/78 (Račke v Hauptzollamt Mainz [1979] ECR 69), according to which, in derogation from the principle of legal certainty, an act may take effect retroactively where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected, in support of its argument that the exception is not justified even if the interpretative nature was expressly stated in the new wording of Article 35, since the second of the abovementioned conditions was not satisfied.
31. Berner therefore proposes that the Court should rule, in reply to the question raised, that during the period of validity of Article 35 of Regulation No 222/77 responsibility for notifying the guarantor of the non-discharge of the Tl document belonged exclusively to the office of departure, to the exclusion of any other office, even those ranking above it.
32. The Italian Government considers that there is no valid reason to limit the power to issue the notification of non-discharge of a Community transit operation to the office of departure alone.
33. On the basis of the judgment of the Court of 18 February 1982 (Case 277/80 SIC v Amministrazione dello Stato [1982] ECR 629), according to which Article 35 of Regulation 222/77 seeks to ensure certainty in the law for persons who act as guarantors for transit operations, the guarantor should be notified, with certainty and within the prescribed time, of the state of his guarantee obligations. He could not legitimately doubt the source of that information if it came from an administrative authority higher than the office of departure.
34. The reference to the office of departure in the original version of Article 35 is explained by the fact that the office of destination must return a copy of document Tl to it at the end of the transit operation, so that it is the office of departure which detects, in the first instance, that it has not ended duly. This does not in any way prejudice, however, the possibility for the country of departure to provide for a higher authority to take the place of the office of departure as regards the duties provided for in the Community rules.
35. The Italian Government observes on this point that:
36. On the basis of these arguments, the Italian Government argues that the purely literal interpretation of the provision in question must give way to a logical interpretation.
37. Finally, the Italian Government states that there is no reason to regard the amendment to Article 35 by Regulation No 3813/81 as introducing an innovation. It observes on this point that in the preamble to Decision No 2/82 of the EEC-Switzerland Joint Committee, the first recital speaks of technical amendments, even in relation to the conditions governing the release of the guarantor from his obligations, which seems to confirm the interpretative and explanatory nature of the amendment in question.
38. It therefore proposes to reply tot he question raised that the disputed provision in question must be construed as meaning that competence for sending to the guarantor the notification of non-discharge rests not only with the office of departure, but also with the office which, in the national legal order, is higher ranking and may fulfil that function in its place.
39. The Commission notes, in the first place, that the question put by the national court now has only historical value since, from 1 January 1983, the words ... notified by the office of departure in Article 35 have been replaced by the wider expression ... notified by the competent customs authorities ... .
40. The Commission is of the opinion that that amendment is innovative for the following reasons.
41. First, the original wording of Article 35 was sufficiently clear to obviate the need to search for a different meaning for the terms used. This also applies in view of the extremely precise terminology employed in Regulation No 222/77 wherein the legislature defined at Article 11, inter alia, the concept of Office of departure, which recurs regularly throughout the text. Thus, there is no reason to doubt that, where the Office of departure is referred to, that is the office that is meant.
42. Furthermore, in the context of Article 35, the reference to the office of departure is not fortuitous. The liaison between the office of departure and the office of destination, each of which is well-defined, constitutes the lynchpin in the Community transit procedure created by Regulation No 222/77. It is therefore logical that the guarantor, who remains outside the transit operation, should have precise terms of reference.
43. The Commission also observes that the provisions of Regulation No 222/77 relating to the guarantee (Articles 27 to 35) do not refer to the office of departure in Article 35 alone but in other places, for example in Article 33(1), and that, in any event, nowhere is there any reference to customs authorities in general.
44. The Commission goes on to point out that, since in the scheme of Regulation No 222/77 the guarantee constitutes an important ancillary element which creates liability for a third party, the legislature wanted to give the guarantor safeguards by fixing precisely the rules of play by which the guarantor agrees to participate.
45. The historical development of the provision in question shows that that was always the attitude of the legislature in relation to the guarantor. The Commission observes that the term Office of departure was originally used in Article 35 of Regulation 542/69, and taken up again in Council Regulation (EEC) No 1079/71 of 25 May 1971 (Official Journal, English Special Edition 1971 (I), p. 285), which added a second paragraph to Article 35, as it appears in its codified form in Regulation No 222/77. The second recital in the preamble to Regulation No 1079/71 indicates that the addition is justified by the need for certainty in the law. That need for legal certainty is reflected, moreover, in the judgment of the Court in Case 277/80, above.
46. As regards the amendment of substance made to Article 35 by Regulation No 3813/81, the Commission states that it had become necessary because of practical problems which arose in a Member State and that the legislature had to show greater flexibility.
47. Following the above considerations, the Commission proposes to reply to the question raised that the provision in question must be interpreted as meaning that the notification of non-discharge of the Tl document must e sent to the guarantor by the office of departure and not by other customs offices, even if higher ranking.
1 Language of the case: Italian.