61982J0186

EUROPEAN COMMUNITIES - OWN RESOURCES - CUSTOMS DUTIES - CUSTOMS DEBT - THEFT OF GOODS SUBJECT TO CUSTOMS DUTIES - NO EXTINCTION OF CUSTOMS DEBT

( COUNCIL DIRECTIVE 79/623 , ART . 4 )

IT APPEARS FROM ARTICLE 4 TOGETHER WITH THE NINTH RECITAL IN THE PREAMBLE TO DIRECTIVE 79/623 THAT THE REASONS FOR EXTINCTION OF THE CUSTOMS DEBT MUST BE BASED ON THE FACT THAT THE GOODS HAVE NOT BEEN USED FOR THE ECONOMIC PURPOSE WHICH JUSTIFIED THE APPLICATION OF IMPORT DUTIES . IN THE CASE OF THEFT , IT MAY BE ASSUMED THAT THE GOODS PASS INTO THE COMMUNITY COMMERCIAL CIRCUIT . IT FOLLOWS THAT THE LOSS OF THE GOODS FOR THE PURPOSES OF THE DIRECTIVE DOES NOT EMBRACE THE CONCEPT OF THEFT , REGARDLESS OF THE CIRCUMSTANCES IN WHICH IT HAS BEEN COMMITTED .

ACCORDINGLY , ACCORDING TO THE EXISTING COMMUNITY CUSTOMS PROVISIONS THE REMOVAL BY THIRD PARTIES OF GOODS SUBJECT TO CUSTOMS DUTY , EVEN THROUGH NO FAULT OF THE TAXABLE PERSON , DOES NOT EXTINGUISH THE OBLIGATION TO PAY DUTY ON THEM .

IN JOINED CASES 186 AND 187/82

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CIVIL SECTION OF THE CORTE D ' APPELLO ( COURT OF APPEAL ), CATANIA , FOR A PRELIMINARY RULING IN THE ACTIONS PENDING BEFORE THAT COURT BETWEEN

MINISTERO DELLE FINANZE ( MINISTRY OF FINANCE ), IN THE PERSON OF THE MINISTER FOR THE TIME BEING ,

AND

ESERCIZIO MAGAZZINI GENERALI SPA , IN LIQUIDATION , CATANIA ,

AND

MELLINA AGOSTA SRL , CATANIA ,

ON THE INTERPRETATION OF THE CONCEPT OF FORCE MAJEURE FOR THE PURPOSES OF COMMUNITY CUSTOMS LAW ,

1 BY TWO ORDERS OF 18 JUNE 1982 RECEIVED AT THE COURT OF JUSTICE ON 23 JULY 1982 THE CORTE D ' APPELLO , CATANIA , REFERRED TO THE COURT FOR A PRELIMINARY RULING PURSUANT TO ARTICLE 177 OF THE EEC TREATY A QUESTION CONCERNING THE CONCEPT OF FORCE MAJEURE FOR THE PURPOSES OF COMMUNITY CUSTOMS LAW .

2 THE QUESTION WAS RAISED IN THE CONTEXT OF SEPARATE PROCEEDINGS BETWEEN THE MINISTERO DELLE FINANZE AND TWO UNDERTAKINGS , ESERCIZIO MAGAZZINI GENERALI SPA AND MELLINA AGOSTA SRL . IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT IN 1978 A QUANTITY OF FOREIGN MANUFACTURED TOBACCO AND WHISKY BELONGING TO MELLINA AGOSTA WAS STOLEN FROM THE CUSTOMS WAREHOUSE MANAGED IN THE PORT OF CATANIA BY ESERCIZIO MAGAZZINI GENERALI . IN ORDER TO CARRY OUT THE THEFT , THE THIEVES FORCED A METAL SLIDING DOOR FITTED WITH TWO LOCKS . THE KEY TO ONE OF THE LOCKS WAS KEPT BY ESERCIZIO MAGAZZINI GENERALI , WHILST THE KEY TO THE OTHER WAS HELD BY THE PORT CUSTOMS OFFICE . THE CUSTOMS AUTHORITIES OF CATANIA REQUESTED BOTH ESERCIZIO MAGAZZINI GENERALI AND MELLINA AGOSTA TO PAY APPROXIMATELY LIT 78 000 000 AS CUSTOMS DUTY AND VALUE-ADDED TAX ON THE STOLEN GOODS TOGETHER WITH THE LEGALLY PRESCRIBED INTEREST AND COSTS .

3 IN JUNE 1979 THE CUSTOMS AUTHORITIES SERVED AN ORDER ON THE TWO UNDERTAKINGS REQUIRING PAYMENT OF THE ABOVE-MENTIONED SUM . THE UNDERTAKINGS CONTESTED THAT ORDER BEFORE THE TRIBUNALE DI CATANIA WHICH RULED THAT THE SUM WAS NOT PAYABLE . THE ADMINISTRATION APPEALED AGAINST THAT JUDGMENT .

4 ITALIAN LEGISLATION PROVIDES THAT IN THE CASE OF GOODS ON WHICH CUSTOMS DUTY IS PAYABLE THE EVENT GIVING RISE TO THE FISCAL OBLIGATION IS CONSTITUTED BY THEIR RELEASE FOR CONSUMPTION IN THE CUSTOMS TERRITORY . GOODS ARE REGARDED AS HAVING BEEN DEFINITIVELY RELEASED FOR CONSUMPTION IF THEY HAVE BEEN UNLAWFULLY REMOVED WITHOUT COMPLIANCE WITH THE CUSTOMS OBLIGATIONS . HOWEVER , THE EVENT GIVING RISE TO THE OBLIGATION IS DEEMED NOT TO HAVE OCCURRED WHEN THE THE TAXABLE PERSON ESTABLISHES THAT THE FAILURE TO FULFIL HIS CUSTOMS OBLIGATIONS OR THE FAILURE TO PRESENT THE GOODS IS DUE TO THE LOSS OR DESTRUCTION OF THE GOODS THROUGH UNFORESEEABLE CIRCUMSTANCES OR THROUGH FORCE MAJEURE OR AS THE RESULT OF EVENTS ATTRIBUTABLE TO THE MINOR NEGLIGENCE OF A THIRD PARTY OR THE TAXABLE PERSON HIMSELF .

5 AS A RESULT OF CERTAIN DECISIONS OF THE ITALIAN COURTS CONCERNING THE WORD ' ' LOSS ' ' USED IN THE LEGISLATION , THE ITALIAN LEGISLATURE ADOPTED LAW NO 891 OF 22 DECEMBER 1980 WHICH GIVES AN AUTHORITATIVE INTERPRETATION OF THAT TERM . THE LAW PROVIDES THAT THE WORD MUST BE INTERPRETED AS MEANING THE ' ' DISPERSION ' ' ( DISPERSIONE ), AND NOT THE REMOVAL OF THE PRODUCT . THE CORTE D ' APPELLO THEREFORE CONSIDERED THAT REMOVAL OF THE PRODUCT ( THAT IS TO SAY , THEFT ) DID NOT FALL WITHIN THE SITUATIONS REFERRED TO BY THE NATIONAL LAW , AND ACCORDINGLY IT HELD THAT THE CONDITION FOR EXEMPTION FROM THE FISCAL OBLIGATION WAS NOT SATISFIED .

6 NEVERTHELESS THE RESPONDENTS TOOK THE VIEW THAT THE POSITION WAS DIFFERENT IN COMMUNITY LAW . THE COMMUNITY PROVISIONS PROVIDE FOR EXEMPTION FROM THE PAYMENT OF CUSTOMS DUTIES AND OTHER CHARGES WHEN GOODS HAVE BEEN DESTROYED AS A RESULT OF FORCE MAJEURE OR UNFORESEEABLE CIRCUMSTANCES . IN THE CIRCUMSTANCES OF THE CASE , THE THEFT OF THE GOODS WAS COMMITTED IN CONDITIONS WHICH WERE SUCH AS TO CONSTITUTE A CASE OF FORCE MAJEURE WITHIN THE MEANING OF COMMUNITY LAW .

7 IN THOSE CIRCUMSTANCES THE CORTE D ' APPELLO STAYED THE PROCEEDINGS IN THE TWO CASES AND , BY THE ABOVE-MENTIONED ORDERS , REFERRED THE FOLLOWING QUESTION TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :

' ' MAY THE REMOVAL OF GOODS SUBJECT TO CUSTOMS DUTIES , CARRIED OUT IN THE MANNER INDICATED ABOVE OR , IN MORE GENERAL AND ABSTRACT TERMS , BY METHODS WHICH , IN VIEW OF THE FOREGOING ARGUMENTS , ASSIMILATE SUCH REMOVAL TO A CASE OF FORCE MAJEURE BY VIRTUE OF ORDINARY LEGAL PRINCIPLES , FALL WITHIN THE CONCEPT OF FORCE MAJEURE AS FORMULATED IN THE COMMUNITY CUSTOMS PROVISIONS?

' '

8 COUNCIL DIRECTIVE 69/74/EEC OF 4 MARCH 1969 ON THE HARMONIZATION OF PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION RELATING TO CUSTOMS WAREHOUSING PROCEDURE ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( I ), P . 82 ) PRESCRIBES THE RULES WHICH MUST BE INCLUDED IN THE PROVISIONS OF MEMBER STATES LAID DOWN BY LAW , REGULATION AND ADMINISTRATIVE ACTION RELATING TO THAT PROCEDURE . ACCORDING TO ARTICLE 2 THEREOF , THE EFFECT OF THE SYSTEM OF CUSTOMS WAREHOUSES IS THAT CUSTOMS DUTIES , CHARGES HAVING EQUIVALENT EFFECT AND AGRICULTURAL LEVIES ARE NOT COLLECTED DURING THE PERIOD OF STORAGE OF GOODS .

9 ACCORDING TO ARTICLE 11 ( 1 ) OF THE DIRECTIVE , THE DEPOSITOR AND THE WAREHOUSE-KEEPER MUST BE ABLE TO ENJOY COMPLETE EXEMPTION FROM CUSTOMS DUTIES , CHARGES HAVING EQUIVALENT EFFECT AND AGRICULTURAL LEVIES IN RESPECT OF LOSSES OCCURRING DURING THE STORAGE PERIOD AND ATTRIBUTABLE TO UNFORESEEABLE CIRCUMSTANCES , FORCE MAJEURE OR CAUSES INHERENT IN THE NATURE OF THE GOODS .

10 ARTICLE 11 ( 3 ) PROVIDES THAT IN CASES OF UNAUTHORIZED REMOVAL OF GOODS , CUSTOMS DUTIES , CHARGES HAVING EQUIVALENT EFFECT AND AGRICULTURAL LEVIES SHALL BE COLLECTED ON THE GOODS REMOVED ON THE BASIS OF THE RATES AND AMOUNTS APPLICABLE ON THE DATE OF REMOVAL .

11 COUNCIL DIRECTIVE 79/623/EEC OF 25 JUNE 1979 ON THE HARMONIZATION OF PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION RELATING TO CUSTOMS DEBT ( OFFICIAL JOURNAL , L 179 , P . 31 ) DETERMINES THE RULES WHICH MUST BE INCORPORATED IN THE MEMBER STATES ' PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION CONCERNING , INTER ALIA , THE CREATION OF A CUSTOMS DEBT .

12 ARTICLE 2 THEREOF PROVIDES THAT A CUSTOMS DEBT ON IMPORTATION IS INCURRED BY :

. . .

( C ) THE REMOVAL OF GOODS LIABLE TO IMPORT DUTIES FROM THE CUSTOMS SUPERVISION INVOLVED IN THE TEMPORARY STORAGE OF THE GOODS OR THEIR BEING PLACED UNDER THE CUSTOMS REGIME WHICH INVOLVES SUCH SUPERVISION .

13 ARTICLE 4 OF THE DIRECTIVE STIPULATES THAT BY WAY OF DEROGATION FROM ARTICLE 2 NO CUSTOMS DEBT ON IMPORTATION IS DEEMED TO BE INCURRED IN RESPECT OF SPECIFIC GOODS :

( A ) WHERE THE PERSON CONCERNED PROVES TO THE SATISFACTION OF THE COMPETENT AUTHORITIES THAT THE NON-FULFILMENT OF THE OBLIGATIONS WHICH ARISE FROM :

- THE PROVISIONS ADOPTED IN APPLICATION OF ARTICLE 2 OF DIRECTIVE 68/312/EEC , OR

-KEEPING THE GOODS IN QUESTION IN TEMPORARY STORAGE , OR

-THE USE OF THE CUSTOMS REGIME UNDER WHICH THE SAID GOODS HAVE BEEN PLACED ,

RESULTS FROM THE TOTAL DESTRUCTION OF IRRETRIEVABLE LOSS OF THE SAID GOODS BY REASON OF THE NATURE OF THE GOODS THEMSELVES OR BECAUSE OF UNFORESEEABLE CIRCUMSTANCES OR FORCE MAJEURE .

14 IT APPEARS FROM THE ABOVE-MENTIONED ARTICLE TOGETHER WITH THE NINTH RECITAL OF THE PREAMBLE TO THE DIRECTIVE THAT THE REASONS FOR THE EXTINCTION MUST BE BASED ON THE FACT THAT THE GOODS HAVE NOT BEEN USED FOR THE ECONOMIC PURPOSE WHICH JUSTIFIED THE APPLICATION OF IMPORT DUTIES . IN THE CASE OF THEFT , IT MAY BE ASSUMED THAT THE GOODS PASS INTO THE COMMUNITY COMMERCIAL CIRCUIT . IT FOLLOWS THAT ' ' LOSS ' ' OF THE GOODS FOR THE PURPOSES OF THE DIRECTIVE DOES NOT EMBRACE THE CONCEPT OF THEFT , REGARDLESS OF THE CIRCUMSTANCES IN WHICH IT HAS BEEN COMMITTED .

15 IN REPLY TO THE QUESTION SUBMITTED BY THE CORTE D ' APPELLO , CATANIA , IT SHOULD THEREFORE BE STATED THAT ACCORDING TO THE EXISTING COMMUNITY CUSTOMS PROVISIONS THE REMOVAL BY THIRD PARTIES OF GOODS SUBJECT TO CUSTOMS DUTY , EVEN THROUGH NO FAULT OF THE TAXABLE PERSON , DOES NOT EXTINGUISH THE OBLIGATION TO PAY DUTY ON THEM .

COSTS

16 THE COSTS INCURRED BY THE ITALIAN REPUBLIC AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE ; AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE CORTE D ' APPELLO , CATANIA , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( FOURTH CHAMBER )

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE CORTE D ' APPELLO , CATANIA , BY ORDER OF 18 JUNE 1982 , HEREBY RULES :

ACCORDING TO THE EXISTING COMMUNITY CUSTOMS PROVISIONS THE REMOVAL BY THIRD PARTIES OF GOODS SUBJECT TO CUSTOMS DUTY , EVEN THROUGH NO FAULT OF THE TAXABLE PERSON , DOES NOT EXTINGUISH THE OBLIGATION TO PAY DUTY ON THEM .