Report for the Hearing in Case C-12/92

I — Legislative background

1. The EEC-Austria Agreement on free trade (Agreement between the European Economic Community and the Republic of Austria signed in Brussels on 22 July 1972 and concluded and approved on behalf of the Community by virtue of Regulation (EEC) No 2836/72 of the Council of 19 December 1972 (OJ, English Special Edition 1972 (31 December) L 300, p. 3) established preferential arrangements applicable inter alia to goods which are either produced in Austria or produced in a Member State of the EEC, then imported into Austria and re-exported to the EEC without undergoing any significant changes.

II — Facts and procedure

2. The German undertaking Jagenberg Werke had manufactured in 1970 a machine for gluing folding cardboard boxes. That machine was exported to Austria on purchase by the Austrian undertaking Ernst Schausberger & Co GmbH on 25 February 1970. That undertaking in turn sold the machine to the Belgian company Grafimat s. p. r. 1. in 1985 and re-exported it from Austria to Belgium. The import formalities were carried out by the Belgian company E. Depairc SA.

3. After the goods had been imported and on the basis of Protocol 3, the Belgian authorities undertook a subsequent verification of the data appearing on the EUR.l certificate supplied to them. The Belgian customs sent the Austrian customs a request for information as to the origin of the machine.

4. Mr Huygen, Mr Verraes and Mr Blocked were prosecuted before the Correctionele Rechtbank te Kortrijk (Criminal Court, Courtrai) for infringement of Articles 202(1) and (2) and 259 of the Algemene Wet inzake Douane en Accijnzen, consolidated by Royal Decree of 18 July 1977, confirmed by the Law of 6 July 1978, and of Article 8(l)(a), 9(1) and (2) and 10(2) of Protocol 3 to the EEC-Austria Agreement. At the same time the companies Edmond Dcpaire and Grafimat were involved in the criminal procedure as parties with civil liability.

5. In those circumstances the Hof van Cassatie decided to stay the proceedings and to refer the following questions of interpretation to the Court of Justice for a preliminary ruling under Article 1 77 of the EEC Treaty:

6. The order for reference was lodged at the Court Registry on 13 January 1992.

7. Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preliminary inquiry and to assign the case to the Fifth Chamber.

III — Summary of the written observations submitted to the Court

8. According to the Belgian Government, the subject of the question submitted to the Court is the concept of force majeure. That legal concept has been analysed in a considerable number of judgments given by the Court of Justice. According to that case-law force majeure comprises two elements: on the one hand, an objective element, namely abnormal circumstances beyond the control of the person liable to tax; on the other hand, the position must be that the consequences of the fact alleged to constitute force majeure could not be avoided despite the exercise of all due care. The latter element involves the duty to take precautions against the consequences of an abnormal event by taking all appropriate measures, without, however, being required to accept excessive sacrifices.

9. Before considering the questions raised by the Hof van Cassatie, the Commission calls attention to several principles to be taken into account for the purpose of interpreting the EEC-Austria Agreement and Protocol 3 thereto.

1 Language of the case: Dutch.

2 Protocol 3 was subsequently amended principally by Council Regulation (EEC) No 1598/88 of 24 May 1988 (OJ 1988 L 149, p. 1) and by Council Regulation (EEC) No 4271/88 of 21 December 1988 (OJ 1988 L 381 p. 1).

3 It is in fact Article 10(4) of Council Regulation (EEC) No 3386/84 which was applicable at the material lime.

4 Sec previous footnote