Ministero delle Finanze v Esercizio Magazzini Generali SpA and Mellina Agosta Srl (186/82, 187/82)

1. Observations submitted by Esercizio Magazzini Generali

Esercizio Magazzini Generali maintains that the theft of goods must release the proprietor from the obligation to pay customs duty.It points out that Decree No 43 of the President of the Republic of 23 January 1973 refers to the special legislation relating to general warehouses, which expressly provides that the effect of force majeure is to exempt those charged with the storage and the temporary admission of goods deposited in that kind of warehouse from liability (Decree Law No 2290 of 1 July 1926 converted into Law No 1158 of 9 June 1927). They are also exempt from payment of duty calculated on the basis of the nature and the quantity of the goods as established when they were put into storage (Royal Decree No 126 of 16 January 1927). The undertaking maintains that the report of the Guardia di Finanza and the judgment of the Tribunale di Catania, whose findings were accepted by the Corte d'Appello in the order making the reference, made it clear that in relation to the theft which occurred the undertaking might not be accused of even minor negligence. According to the order making the reference, “... the theft took place in such a manner as to imply the existence, according to the view of legal writers and of the courts, of a case of force majeure (cf. judgment No 3494 of the Corte di Cassazione of 26 October 1955) and that the event was unforeseeable” (cf. judgment No 1274 of the Corte di Cassazione of 26 April 1954). Italian academic opinion (Messineo, Trattato di Diritto Civile e Commerciale) also considers that the theft amounts to a case of unforeseeable circumstances or force majeure.In accordance with that line of thought, the Italian courts have upheld the exemption from the obligation to pay customs duty where theft is perpetrated by a third party and where the conduct of the person who is liable for the duty is neither fraudulent nor negligent (Corte di Cassazione, judgments No 6148 of 22 December 1978 and No 431 of 18 January 1980).On the basis of the new Law No 891, the Corte di Cassazione amended its position and held in its judgment No 5769 of 31 October 1981 that customs duty was payable on goods stolen whilst being transported by lorry. However, in a similar case the undertaking concerned maintained that Article 37 of the consolidated version contained in Decree No 43, as interpreted in the light of Law No 891, was unconstitutional and accordingly the Tribunale di Catania referred the case to the Italian Constitutional Court.The undertaking also relies on Community law, as in its view under Directive 79/623/EEC the loss of goods as a result of unforeseeable circumstances or force majeure is to be regarded as ground for “exemption” from the obligation to pay duty. It argues that the Economic and Social Committee in its opinion on the proposal for a Council directive envisaged a wider category of exemption from the payment of customs duty and that Article 11 of Directive 69/74/EEC, in spite of its conciseness, covers all the cases suggested.The Court of Justice has also adopted that approach in judgments which refer to force majeure, notably in Case 158/73 (Kampffmeyer [1974] ECR 101), Case 149/78 (Rumi [1979] ECR 2523) and Case 808/79 (Pardini [1980] ECR 2103). The Italian Constitutional Court has given similar rulings.Esercizio Magazzini Generali concludes that Article 22 of Law No 891 is incompatible with the Community rules, inasmuch as it restricts excessively the concept of loss due to force majeure, for which express provision was made, in connection with customs warehouses, by the above-mentioned Article 11 (1) of Directive 69/74/EEC and, in connection with goods in Community transit on which customs duty is payable, by Article 4 of Directive 79/623.