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

3. Observations submitted by the Commission

The Commission maintains that under Community customs law, in particular Directive 69/74, theft may not be regarded as a case of force majeure, whatever the circumstances in which it is committed.To qualify as force majeure, an event must either present certain characteristics or have the legal effects which the legislation attributes to force majeure. The effect of force majeure is to release the parties concerned from liability. If the legislation in force excludes that effect in a specific legal context, it must be concluded that an event, even though it be unforeseeable, irresistible and not attributable to the person liable, cannot qualify as force majeure. In Community customs law, the person concerned is released from liability only if the goods stored in a warehouse are “lost”. Stolen goods are not “lost” within the meaning of the directive. In those circumstances therefore, theft is not a case of force majeure.The Court of Justice has referred to the problem of force majeure in several judgments, but it has never had occasion to consider the problem raised in the present case. It seems nevertheless that the theory set out above is the underlying principle in the cases in which the Court has acknowledged that an event amounted to force majeure. In fact most of those cases involved disputes in agricultural matters in which a legislative measure provided for the extinction of an obligation in the event of force majeure. Even in a case in which force majeure was relied upon on the basis of the general principles of law, rather than a legislative measure, (Case 149/78, Rumi [1979] ECR 2523) the requirement of the extinction of an obligation was upheld.The Commission adds that all the Member States apply the provisions in question in the manner advocated above. The Community provisions are themselves founded on international rules. The Kyoto Convention on the Simplification and Harmonization of Customs Procedures provides, in point 22 of Annex E 3 thereto, that “warehoused goods destroyed or irrevocably lost by accident or force majeure shall not be subjected to import duties and taxes ...”. Annex B 1 to the Convention states that stolen goods shall not be regarded as destroyed or irrecoverably lost. Council Decision 75/199/EEC of 18 March 1975 (Official Journal 1975, L 100, p. 1) concluded that Convention on behalf of the Community and accepted Annex E 3 thereto concerning customs warehouses. It seems however that Annex B 1 has not yet been accepted by the Community.In relation to customs warehouses, Directive 69/74/EEC also contains, in Article 11 (3), a special provision concerning the “unauthorized removal of goods”. Where that occurs, duty is payable and no exemption is provided for. The Commission poses the question whether theft is covered by that provision rather than by Article 11 (1). That such a question must be answered in the negative may be seen both from the preparatory documents (in particular, the Commission's report which accompanied the proposal for a directive) and from a literal interpretation of the provision. A provision which refers to “unauthorized removals” presupposes the existence of “authorized removals”. Such operations could only be carried out by the owner of the goods; it may therefore be concluded that the provision is directed at the owner of the goods.