Opinion of the Advocate General — ECLI:EU:C:2007:457
Date: 2007-07-18
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Free movement of goods;Customs Union;Excise duties
Procedure: Reference for a preliminary ruling
Origin: France

summary, it must be concluded that the definition of force majeure developed in a consistent line of case-law also appears appropriate for the purposes of the current proceedings. 50. The answer to the first question must therefore be that force majeure as the cause of losses occurring under suspension arrangements requires that the loss has occurred because of events which are abnormal and unforeseeable, over which the party who relies on force majeure had no control and the consequences of which could not have been avoided even if all due care had been exercised. C – The second question 51. The second question asks in effect whether the seepage of the fuel into the ground can be seen as a loss inherent in the nature of the product, namely in its nature as a liquid. 52. All the parties concerned, with the exception of SPMR, are agreed that that does not amount to a tax-exempt loss for the purposes of Article 14(1) of Directive 92/12. The concept of ‘losses inherent in the nature of the products’ covers, as the wording already makes clear, only those losses which occur as a result of natural causes without intervention of other special circumstances. (24) An example would be evaporation as a result of the volatility of certain substances. 53. In this case the loss occurred as a result of the cracking and the subsequent bursting of the pipeline, that is to say as a result of an accident. Thus the loss concerned is primarily one caused by an accident and is not a loss occurring naturally in the course of the customary method of transport, attributable solely to the inherent nature of the product. 54. The fact that only the liquid nature of the oil made possible the subsequent seepage into the ground cannot alter that conclusion. Otherwise every leakage of mineral oil and its subsequent seepage into the ground would in the end, independently of the earlier cause of the leak, be attributable to the inherent nature of the products and therefore exempt from tax – even where the transporter acted intentionally or in a reproachable manner. (25) That would be contrary to the responsibility of the warehousekeeper for his sphere of control explained above. 55. That interpretation is confirmed, as the French Government submits, by the fact that several Member States have enacted legal provisions, based on experience, in order to lay down limits for the exemption of tax in respect of losses from natural causes. 56. The reference made by SPMR to the Advocate General’s Opinion in Joined Cases 186/82 and 187/82 Esercizio Magazzini Generali (26) also misses the point. Irrespective of whether the examples provided in that Opinion (27) with a view to explaining Article 11 of Directive 69/74 (28) are appropriate, that case concerned a legal provision whose wording did not correspond to the provision in issue here: while the Article 11 provision subject to interpretation in that case refers to ‘losses … attributable to … causes inherent in the nature of the goods’, or in French only ‘pertes … dues … à des causes dépendant de la nature des marchandises’, an exemption is granted in this case only in respect of losses in the nature of ‘Schwund’ or ‘pertes naturelles’. V – Conclusion 57. In the light of the foregoing I propose that the Court answer the questions posed by the Cour de Cassation as follows: 1. Force majeure as the cause of losses occurring under suspension arrangements in the sense of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products requires that the loss occurred because of events which are abnormal and unforeseeable, over which the party who relies on force majeure had no control and the consequences of which could not have been avoided even if all due care had been exercised. 2. The loss of part of the products which leaked from an oil pipeline due to their liquid nature and to the characteristics of the ground on which they spilled, which prevented their recovery, cannot be regarded as a loss inherent in the nature of the products within the meaning of Article 14(1) of Directive 92/12. 1 – Original language: German. 2 – More precisely: Administration des Douanes et Droits Indirects (Customs and Indirect Taxes Administration), together with the Direction Nationale du Renseignement et des Enquêtes Douanières (National Excise Information and Investigations Department; ‘DNRED’). 3 – Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992, L 76, p. 1). In the meantime that Directive was amended a large number of times, but the provisions which are the subject of dispute in the main proceedings remained unaffected by the amendments. 4 – See in that regard Case C‑494/04 Heintz van Landewijck [2006] ECR I–5381, paragraph 41) and, on the similar Article 13A(1) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, Case C‑498/03 Kingscrest und Montecello [2005] ECR I‑4427, paragraph 24 with further references, and my Opinion in Joined Cases C‑443/04 and 444/04 Solleveld and van den Hout-van Eijnsbergen [2006] ECR I‑3617, paragraph 21). 5 – See for example the judgments cited in footnotes 18 and 19. 6 – Council Directive of 25 June 1979 on the harmonization of provisions laid down by law, regulation or administrative action relating to customs debt (OJ 1979 L 179, p. 31). 7 – Joined Cases 186/82 and 187/82 Esercizio Magazzini Generali [1983] ECR 2951, paragraph 14. 8 Compare for example the following language versions, in which the Directive was originally adopted: EN: fortuitous events; ES: caso fortuito; IT: casi fortuiti; DK: haendelige begivenheder; NL: toevallige omstandigheden; PT: casos fortuitos; GR: τυχαία περιστατικά. 9 – Cases C‑372/88 Cricket St. Thomas [1990] I‑1345, paragraph 19; C‑174/05 Zuid‑Hollandse Milieufederatie und Natuur en Milieu [2006] ECR I‑2443, paragraph 20); and Case C‑300/05 ZVK [2006] ECR I‑11169, paragraph 16). 10 – In Austria and Germany the Directive was in that respect adopted literally, which in view of the meaning of the legal concept of Untergang in those legal systems is likely to lead substantive divergences from the Directive (see for example paragraph 38 of the Austrian Mineralölsteuergesetz 1995 – Law on Mineral Oils, BGBl. Nr. 630/1994, and paragraph 14(1) of the German Energiesteuergesetz – Law on energy taxes, BGBl. I 2006, 1534). 11 – Only in the cases of loss attributable to theft (assuming that is to be seen as a case of force majeure) has a thing not at the same time ‘perished’. 12 – See for example Article 45(2) of the Statute of the Court of Justice. 13 – German law frequently distinguishes between fortutitous events of an ‘ordinary’ character (‘einfacher Zufall’) and force majeure as an example of fortuitous events of an ‘aggravated’ nature (‘gesteigerter Zufall’). 14 – See, in that regard, Terré/Simler/Lequette, Droit civil – Les obligations, Éditions Dalloz, ninth edition 2005, paragraph 581 with further references. 15 – In its judgment in Case C‑195/91 P Bayer [1994] ECR I‑5619, paragraph 33), the Court explicitly left open the question whether there is a difference between those concepts. 16 – See, for example, the Case C‑25/65 SIMET [1967] ECR 33, 42-43; Order of 5 March 1993 in Case C‑102/92 Ferriere Acciaierie Sarde [1993] ECR I‑801, paragraph 20); Bayer, cited in footnote 15, paragraph 32. 17 – Only in its very early judgment in SIMET (cited in footnote 16, pp. 42-43), which in that regard has remained an isolated case, did the Court of Justice with reference to Article 45 of its Statute assume that unforeseeable circumstances had occurred, without distinguishing that concept from that of force majeure, when an application did not reach the Court until four days after its arrival in Luxembourg. 18 – See the Court’s settled case-law, for example C‑145/85 Denkavit [1987] ECR 565, paragraph 11; Case C‑12/92 Huygen [1993] ECR I‑6381, paragraph 31; Case C‑105/02 Commission v Germany [2006] ECR I‑9659, paragraph 89; and C‑377/03 Commission v Belgium [2006] ECR I‑9733, paragraph 95. 19 – Bayer, cited in footnote 15, paragraph 32; Order of 18 January 2005 in Case C‑325/03 P Zuazaga Meabe [2005] ECR I‑403, paragraph 25. 20 – Huygen, cited in footnote 18, paragraph 30; Case C‑263/97 First City Tradingand Others [1998] ECR I‑5537, paragraph 41. 21 – Ferriere Acciaierie Sarde, cited in footnote 16, paragraph 20. 22 – In its judgment in Case C‑124/92 An Bord Bainne und Inter-Agra [1993] ECR I‑5061, paragraph 15, the Court for example did not regard it as abnormal and unforeseeable, when legal provisions of an exporting country which had been in force without modification for 30 years were amended without prior announcement or notice. 23 – See Article 5(1) of Directive 92/12. 24 – The French ‘perte naturelle’ makes this particularly clear. 25 – The argument could be taken even further: in the final analysis every case of destruction of a product can be traced back to its inherent nature, for example destruction of a product by fire to its combustible nature, breakage of products to their fragility etc. 26 – Opinion of Advocate General Mancini of 6 July 1983 in Esercizio Magazzini. 27 – In point 3 of his Opinion Advocate General Mancini gives as an example of the loss attributable to the inherent nature of the product, spillage of fuel oil onto the road when the tank containing it bursts. 28 – Council Directive 69/74/EEC of 4 March 1969 on the harmonisation of provisions laid down by law, regulation or administrative action relating to customs warehousing procedure (OJ 1969 L 58, p. 7).