Judgment_paragraph 2. · Ministero delle Finanze v Esercizio Magazzini Generali SpA and Mellina Agosta Srl (186/82, 187/82)

2.Article 11 (1) of 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) already provided that “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 fortuituous events, force majeure or causes inherent in the nature of the goods”. A similar provision was to be found in Directive 69/73/EEC relating to inward processing.Article 34 of Council Regulation (EEC) No 222/77 of 13 December 1976 on Community transit (Official Journal 1977, L 38, p. 1), replacing Regulation (EEC) No 542/69 of the Council of 18 March 1969 (Official Journal, English Special Edition, 1969 (I), p. 125), also provides that:“Without prejudice to national provisions prescribing other cases of exemption, the principal shall be exempted by the competent authorities of the Member States from payment of duties and other charges in the case of:(a) goods which have been destroyed as a result of force majeure or unavoidable accident duly proven; or(b) officially recognized shortages arising from the nature of the goods.”Those principles are codified in 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 1979, L 179, p. 31). The fourth recital in the preamble to that directive states that “... the amount of the duties to which imports and exports are subject under the provisions in force must be paid by a natural or legal person, on whom there is an obligation to pay the said amount, which is hereinafter referred to as ‘customs debt’ ”. The ninth recital states that “... except where the amount of the customs debt is paid or subject to the operation of a time bar in accordance with the provisions in force, the reasons for this extinction [of the customs debt] must be based on the recorded fact that the goods have not been used for the economic purpose which justified the application of import or export duties”. Article 4 of the directive stipulates that:“By way of derogation from Article 2, no customs debt on importation shall be 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 various customs provisions which have the effect of delaying the release for consumption of the goods] results from the total destruction or irretrievable loss of the said goods by reason of the nature of the goods themselves or because of unforeseeable circumstances or force majeure;...”