62001B0218

1. Procedure - Time-limits for bringing proceedings - Time-bar - Unforeseeable circumstances or force majeure - Concept - Limits

(EC Statute of the Court of Justice, Art. 42, second para.)

2. Commission - Code of good administrative behaviour annexed to the Rules of Procedure of the Commission - Provision requiring the mention in Commission measures of the possibility of starting judicial proceedings and/or of lodging a complaint with the European Ombudsman - Binding nature

(Arts 195 EC and 230 EC; Annex to the Rules of Procedure of the Commission, para. 3, subparas 4 and 5)

3. Procedure - Time-limits for bringing proceedings - Time-bar - Excusable error - Concept

1. The concepts of force majeure and unforeseeable circumstances contain, besides an objective element relating to abnormal circumstances unconnected with the party in question, a subjective element involving the obligation, on his part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. In particular, the party in question must pay close attention to the course of the procedure and, in particular, demonstrate diligence in order to comply with the prescribed time-limits. Thus, the concepts of force majeure and unforeseeable circumstances do not apply to a situation in which, objectively, a diligent and prudent person would have been able to take the necessary steps before the expiry of the period prescribed for instituting proceedings.

( see para. 17 )

2. The fact that the Commission does not refer, in a measure, to the possibility of starting judicial proceedings and/or of lodging a complaint with the European Ombudsman, in accordance with Article 230 EC or Article 195 EC, is a breach of the obligations which that institution has taken upon itself by its adoption of the Code of good administrative behaviour for staff of the European Commission in their relations with the public which is set out in the Annex to the Rules of Procedure of the Commission.

( see para. 25 )

3. The concept of excusable error, the direct source of which is a concern for observance of the principles of legal certainty and of the protection of legitimate expectations, can concern only exceptional circumstances in which, in particular, the conduct of the institution concerned was, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally prudent person. Although such may be the case where the commencement of an action out of time is caused by the provision, by the institution concerned, of wrong information creating pardonable confusion in the mind of such a person, or where the breach by the institution concerned of certain of its rules of procedure, such as, for example, a code of behaviour, has created such confusion, it cannot be the case, where the person concerned cannot harbour any doubt that the measure notified to him is in the nature of a decision. Indeed, in the latter case, the absence of information relating to the possibility of an appeal cannot in any way mislead that person.

( see para. 30 )

In Case T-218/01,

Laboratoire Monique Rémy SAS, established in Grasse (France), represented by J.-F. Pupel, lawyer,

applicant,

v

Commission of the European Communities, represented by A. Bordes, acting as Agent, with an address for service in Luxembourg,

defendant,

APPLICATION for the annulment of Commission Decision C(2001) 1380 of 2 July 2001 withdrawing the financial aid previously granted to the applicant by the European Agricultural Guarantee and Guidance Fund, Guidance Section,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (First Chamber),

composed of: B. Vesterdorf, President, N.J. Forwood and H. Legal, Judges,

Registrar: H. Jung,

makes the following

Order

Facts and Procedure

1 By Decision C(2001) 1380 of 2 July 2001 (hereinafter the contested measure), the Commission withdrew the financial aid granted to the applicant from the European Agricultural Guarantee and Guidance Fund, Guidance Section, by Commission Decision C(93) 3185 of 10 November 1993 in respect of a pilot project to demonstrate exploitation of the Iris, a Mediterranean plant, for the luxury perfume and food flavourings industry (France, Spain, Greece).

2 The contested measure, which was sent to the applicant by the Commission by letter of 2 July 2001, was received by the applicant on 6 July 2001.

3 By application lodged at the Court Registry on 21 September 2001, the applicant brought this action for the annulment of the contested measure.

4 By separate document, lodged at the Court Registry on 26 October 2001, the Commission, pursuant to Article 114 of the Rules of Procedure of the Court of First Instance, raised a plea of inadmissibility of the action in part on the ground that it was brought out of time and in part on the ground of infringement of Article 44 of the Rules of Procedure.

5 The applicant lodged its observations on that plea on 3 December 2001.

Forms of order sought by the parties

6 The applicant claims that the Court should:

- declare the application admissible;

- annul the contested measure;

- order the Commission to pay the costs.

7 The defendant contends that the Court should:

- declare the application manifestly inadmissible;

- order the applicant to pay the costs.

Law

8 Under Article 114(1) of the Rules of Procedure, if a party so applies, the Court may rule on admissibility without going into the substance of the case. Under paragraph 3 of that article the remainder of the proceedings is to be oral unless the Court otherwise decides. In this case, the Court considers that it is sufficiently informed by the documents in the file and that there is no need to open the oral procedure.

9 Under the terms of the fifth subparagraph of Article 230 EC proceedings for annulment are to be instituted within two months of the publication of the contested measure, or of its notification to the applicant, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. Under Article 102(2) of the Rules of Procedure, that period is also to be extended by 10 days on account of distance. Under Article 101(2) of those Rules, if that period would otherwise end on a Saturday, Sunday or official holiday, it is to be extended until the end of the first following working day.

10 In this case the contested measure was notified to the applicant on 6 July 2001.

11 The period prescribed for bringing the action for annulment expired, under the rules mentioned in paragraph 9 above, at midnight on Monday 17 September 2001.

12 The action in this case, which was commenced on 21 September 2001, is therefore out of time.

13 The applicant however claims that having posted the envelope containing the application by registered post on 11 September 2001, it was entitled, in view of the fact, alleged by it, that the time for delivery of a registered letter is four days, to believe that the application would reach the Court Registry on 17 September 2001 at the latest. The arrival of that letter only on 21 September 2001 amounts to unforeseeable circumstances.

14 The Court finds first that, contrary to applicant's statement, the envelope containing the application was posted on 13 September 2001, as shown by the postmark on it, that is, at best, only five days, including a Saturday and Sunday, before the expiry of the period prescribed for bringing the action.

15 The Court notes also that the applicant merely states that the French postal service, La Poste, undertakes to deliver within four days, without adducing any evidence in that regard, or even stating whether that period consists of working or calendar days. That lack of evidence, alone, justifies dismissal of the application.

16 Even if evidence of such an undertaking by La Poste had been adduced, that would not have sufficed to establish the existence of unforeseeable circumstances in this case. Unforeseeable circumstances, like force majeure, are characterised in particular by their predictability (see, to that effect, Case C-97/95 Pascoal & Filhos [1997] ECR I-4209, paragraph 63). However, the existence of an undertaking by La Poste to the sender to deliver a letter within a certain period cannot, by itself, render any delay in its delivery unforeseeable.

17 Furthermore, the concepts of force majeure and unforeseeable circumstances contain, besides an objective element relating to abnormal circumstances unconnected with the party in question, a subjective element involving the obligation, on his part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. In particular, the party in question must pay close attention to the course of the procedure and, in particular, demonstrate diligence in order to comply with the prescribed time-limits (Case C-195/91 P Bayer v Commission [1994] ECR I-5619, paragraph 32). Thus, the concepts of force majeure and unforeseeable circumstances do not apply to a situation in which, objectively, a diligent and prudent person would have been able to take the necessary steps before the expiry of the period prescribed for instituting proceedings (see, to that effect, Case 209/83 Ferriera Valsabbia v Commission [1984] ECR 3089, paragraph 22).

18 By posting the envelope containing the application at most five days - including a Saturday and Sunday - before the expiry of the period prescribed for bringing the action, notwithstanding the alleged undertaking by La Poste with regard to delivery, a risk of delay could not be ruled out and it was clear that any such delay might cause the action to become time-barred, the applicant did not display the diligence expected of an ordinarily prudent applicant with a view to observance of time-limits. Apart from a passing reference to the events which occurred in the United States on 11 September 2001, and to the disturbances of transport resulting therefrom, the applicant does not rely upon any particular circumstance or event capable of constituting unforeseeable circumstances or force majeure and of thus excusing, notwithstanding the established lack of diligence of its part, the delay in lodging the application. That reference to those events and disturbances, made in a vague and general fashion, cannot, however, constitute proof of unforeseeable circumstances or force majeure in this case.

19 The circumstances of this case cannot therefore be compared to those in point in the cases which gave rise to the judgment of the Court of Justice of 2 March 1967 (Joined Cases 25/65 and 26/65 Simet and Feram v High Authority [1967] ECR 33), upon which the applicant relies. In those cases, on the one hand, the applications had been posted by registered parcel post 10 days, and not 5 days, before the expiry of the period prescribed for bringing the action, and on the other hand, the Court of Justice, in finding the existence of unforeseeable circumstances, held that the main cause of the delay could be found in the circumstance that the applications had not come into the Court's possession until four days after their arrival in Luxembourg.

20 The responsibility of the applicant or its counsel for the action being out of time is even more evident from the fact that, as appears from the headed paper on which the application is printed, the applicant's counsel had a fax machine and an e-mail address. He therefore could, as provided by Article 43(6) of the Rules of Procedure, have sent a copy of the signed original of the application to the Court Registry by fax or e-mail, such transmission being effective for the purposes of observance of time-limits, on condition that the original, accompanied by the annexes and the copies mentioned in paragraph 1 of that article, is lodged at the Court Registry no later than 10 days thereafter.

21 Not only could the applicant or its counsel have used those methods of communication, which, whilst assuring almost immediate transmission of the application, often coupled with a form of an acknowledgement of receipt, would have caused a period of 10 days to start running for lodging the original at the Court Registry, but they could also have inquired directly of the Registry about the safe receipt of their letter. Such a step, of elementary prudence, was particularly essential in this case, since because of the very short period between the posting of the application by registered letter with a form for acknowledgement of receipt on 13 September 2001, and the expiry of the period prescribed for bringing the action at midnight on 17 September 2001, the applicant and its counsel could by no means expect the return of the acknowledgement of receipt before such expiry.

22 Alternatively, the applicant refers, in its observations on the plea of inadmissibility, to the Code of good administrative behaviour for staff of the European Commission in their relations with the public (hereinafter the Code of Behaviour), which is set out in the Annex to the Rules of Procedure of the Commission adopted by it on 29 November 2000 (OJ 2000 L 308, p. 26).

23 The fourth and fifth subparagraphs of paragraph 3 of the Code of Behaviour provide:

Where Community law so provides, decisions notified shall clearly state that an appeal is possible and describe how to submit it (the name and office address of the person or department with whom the appeal must be lodged and the deadline for lodging it).

Where appropriate, decisions should refer to the possibility of starting judicial proceedings and/or of lodging a complaint with the European Ombudsman in accordance with Article 230 or 195 of the Treaty establishing the European Community.

24 The applicant claims that the Commission infringed those provisions by not mentioning the possibility of an appeal in the contested measure. That omission prevented the applicant from realising the urgency for a reaction on its part and led to the case being brought before the Court in the last possible days for commencing an action.

25 The Court finds that the fact that the Commission did not refer, in the contested measure, to the possibility of starting judicial proceedings and/or of lodging a complaint with the European Ombudsman, in accordance with Article 230 EC or Article 195 EC, is a breach of the obligations which that institution has taken upon itself by its adoption of the Code of Behaviour.

26 However, the Court points out that that breach is unrelated to the lodgment of the application out of time, which is acknowledged in the observations of the applicant on the plea of inadmissibility.

27 The applicant instructed its counsel at the end of the month of August 2001. He, a professional lawyer, who could not have been ignorant of the question of the time-limit for initiating proceedings, acknowledged, moreover, that he knew the date of expiry of the period for initiating proceedings in this case, since, in the applicant's observations on the plea of inadmissibility, he writes that, [i]n sending a registered letter with a form for acknowledgement of receipt ... on 11 September, [he] was entitled to believe that it would be delivered to the addressee by 17 September at the latest.

28 The lodgment out of time of the application is therefore solely due to the failure of the applicant or its counsel to exercise the diligence and prudence required in respect of time-limits for initiating proceedings.

29 In any event, even if the breach of the Code of Behaviour found at paragraph 25 above had caused the application to be lodged out of time, it would not have made the action admissible by derogation from the rules governing the time-limits for initiating proceedings.

30 The abovementioned breach could not have led the applicant to make an excusable error, namely one which the Community judicature accepts as allowing a derogation from the rules governing time-limits for initiating proceedings. The concept of excusable error, the direct source of which is a concern for observance of the principles of legal certainty and of the protection of legitimate expectations, can, according to settled case-law, concern only exceptional circumstances in which, in particular, the conduct of the institution concerned was, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally prudent person (see, among others, judgment of the Court of First Instance in Case T-12/90 Bayer v Commission [1991] ECR II-219, paragraphs 28 and 29, confirmed by the judgment of the Court of Justice in Bayer v Commission, cited in paragraph 17 above; order of the Court of First Instance in Case T-63/96 Fichtner v Commission [1997] ECR-SC I-A-189 and II-563, paragraph 25, confirmed by order of the Court of Justice in Case C-312/97 P Fichtner v Commission [1998] ECR I-4135, and order in Case T-68/96 Polyvios v Commission [1998] ECR II-153, paragraph 43). Although such may be the case where the commencement of an action out of time is caused by the provision, by the institution concerned, of wrong information creating pardonable confusion in the mind of a person acting in the manner mentioned above, or where the breach by the institution concerned of certain of its rules of procedure, such as, for example, a code of behaviour, has created such confusion, it cannot be the case, where, as here, the person concerned cannot harbour any doubt that the measure notified to him is in the nature of a decision. In the latter case the absence of information relating to the possibility of an appeal cannot in any way mislead that person.

31 It follows from all of the foregoing, without its being necessary to consider whether the application complies with the requirements of Article 44 of the Rules of Procedure, that the application must be dismissed as being manifestly inadmissible.

Costs

32 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the defendant.

On those grounds,

THE COURT OF FIRST INSTANCE (First Chamber)

hereby orders:

1. The application is dismissed as manifestly inadmissible.

2. The applicant shall bear its own costs and pay those incurred by the defendant.