3.

Let us now consider the Community provisions on customs duties which define the cases in which the customs debt is extinguished for reasons not attributable to the taxable person. Indeed, the Italian legislation must be viewed in the light of those provisions in order to determine whether it is compatible. In that context, 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) should be considered first of all. Article 11 provides that “The depositor and 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 fortuitous events, force majeure or causes inherent in the nature of the goods”. That provision, therefore, links the exemption (or rather the extinguishment of the customs debt) to only two categories of cause: on the one hand the vis or the casus and, on the other, the nature of the goods (as in the case of perishable foodstuffs or products which as a result of their dispersion may no longer be used — an example would be fuel oil spilt onto the road when the tank containing it bursts). That does not, however, deal with the case of theft. The formula employed by the Community legislature does not make it clear whether the “loss” as a result of force majeure relates solely to the destruction of the goods or whether it includes their removal from the importer's possession. It therefore seems to recognize both possibilities. However the fact that Article 11 (3) excludes from the concept of loss “unauthorized removal of goods” would seem to suggest a more restrictive interpretation inasmuch as it provides that for such cases customs duties are to be levied on the basis of the rates applicable on the date of removal. The Italian Government in its defence, correctly, does not suggest that by adopting that line the directive ultimately equates unauthorized removal to release for consumption. It is clear that unauthorized removal is not necessarily equivalent to removal by a third party. Nevertheless the wide scope of the formula and in particular the choice of the adjective (“unauthorized” [irregolare] means essentially an action which is contrary to the rules) suggests that such equivalence was contemplated by the legislature. However any doubt which might remain is removed by examination of Council Regulation (EEC) No 222/77 of 13 December 1976 on Community transit (Official Journal 1977, L 38, p. 1). Article 34 thereof provides that “... 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”. Clearly theft is not covered by either (a) or (b). Thus it gives rise to no exemption from liability. That did not happen by chance. The rule is evidently founded on the principle that the customs debt is conditional on the entry of the goods into the economic circuit. If they are destroyed or deteriorate totally they cannot be marketed and are therefore exempted from the debt. That does not apply to theft, which renders the goods unusable only for the owner and, for that reason, the debt subsists.