Case T‑530/18

Romania

European Commission

Order of the General Court (Eighth Chamber), 30 April 2019

(Actions for annulment — EAGF and EAFRD — Commission Implementing Decision — Notification to the addressee — Publication of the decision in the Official Journal of the European Union — Period within which proceedings must be commenced — Point from which time starts to run — Out of time — Inadmissibility)

Action for annulment — Time limits — Mandatory — Point from which time starts to run — Notification –Decision of the Commission excluding from European Union financing certain expenditure incurred by the Member States under the EAGF and EAFRD — Subsequent publication of the decision in the Official Journal — Irrelevant

(Arts 263, sixth para., and 297(2), third subpara., TFEU)

(see paragraphs 22-25, 27-32, 36-38, 42-47)
Action for annulment — Time limits — Point from which time starts to run — Notification — Concept

(Arts 263, sixth para., and 297(2), third subpara, TFEU)

(see paragraph 26)
Action for annulment — Time limits — Mandatory — Point from which time starts to run — Notification –Purely formal errors irrelevant

(Arts 263, sixth para., and 297(2), third subpara, TFEU)

(see paragraphs 48-58)

Résumé

In the case which gave rise to the order in Romania v Commission (T‑580/18) of 30 April 2019, the General Court heard an action brought by Romania seeking partial annulment of a Commission Implementing Decision excluding from European Union financing certain expenditure incurred by the Member States under European agricultural funds. ( 1 ) By that decision, the Commission had, inter alia, applied to Romania a financial correction of a sum of over EUR 90 million. This case allowed the General Court to make clarifications on the starting point of the period for instituting proceedings for the annulment of an act of individual relevance, such as a decision taken under the third subparagraph of Article 297(2) TFEU, where that act has been brought to the knowledge of its addressee by two different means. In the present case, the contested decision was both notified to the Permanent Representation of Romania to the European Union on 14 June 2018 and published in the Official Journal of the European Union on 15 June 2018.

First of all, the General Court recalled that, under the sixth paragraph of Article 263 TFEU, annulment proceedings must be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. In addition, pursuant to Article 60 of the Rules of Procedure of the General Court, the procedural time limits are to be extended on account of distance by a single period of 10 days, and pursuant to Article 59 of the Rules of Procedure, where the time limit allowed for initiating proceedings against a measure adopted by an institution runs from the publication of that measure in the Official Journal, that time limit is to be calculated from the end of the 14th day after such publication.

Next, the General Court stated that the date to be taken into account for the purposes of determining the starting point of the period prescribed for instituting annulment proceedings is the date of publication in the Official Journal, when such publication, which is a precondition for the coming into force of the act, is provided for in the TFEU, and the date of notification in the other cases referred to in the third subparagaph of Article 297(2) TFEU, amongst which is that of decisions which specify those to whom they are addressed. Thus, as regards an act specifying those to whom it is addressed, only the text which is notified to those addressees is authentic, even if that act may also have been published in the Official Journal. In the present case, in so far as the contested decision expressly designates Romania as an addressee, that decision took effect with regard to Romania by means of its notification. Further, the period prescribed for instituting proceedings began to run from the time of that notification and, Article 59 of the Rules of Procedure not being applicable, that period, including the extension on account of distance, expired on 24 August 2018. Therefore, the General Court held that the action brought by Romania on 7 September 2018 was out of time and must be dismissed as being inadmissible.

Finally, the General Court observed that that conclusion cannot be invalidated by the arguments put forward by the applicant.

In that regard, first, Romania claimed that, in the absence of an automatic correlation between the starting point of the time period prescribed for instituting annulment proceedings against a measure adopted by an institution and the time when that measure enters into force or takes legal effect, in the present case, the date of publication of the contested decision in the Official Journal can be accepted as the starting point of that period, even if that decision had already produced effects with regard to Romania, as a result of its previous notification. The General Court stated, inter alia, that those arguments were premissed on a confusion between the conditions relating to the admissibility of an action for annulment, referred to in Article 263 TFEU, and those relating to the validity of the act challenged by such an action.

Secondly, Romania relied on the existence of an established practice on the part of the Commission to publish in the Official Journal decisions such as that at issue in the present case, while also notifying them to their addressees. Romania claimed that, in those atypical circumstances, the starting point of the period for instituting proceedings must be the publication of those decisions. The General Court stated that, even if such consistent practice exists, since the decision was previously notified, it is necessary to take into account that date, rather than the subsequent publication in the Official Journal, for the purposes of calculating the period for instituting proceedings. Further, the adoption of the sole criterion of notification as the starting point of the period for instituting annulment proceedings against acts which designate their addressees guarantees legal certainty and effective judicial protection, unlike in the case of a hybrid solution, where the addressee of an act who has been duly notified thereof must make further enquiries as to the publication of the act in the Official Journal which, not being mandatory, is merely a possibility and thus uncertain.

Thirdly, as regards the argument according to which there are differences between the text published in the Official Journal and the notified text, alleged to be incomplete, the General Court recalled that notification is the operation by which the author of a decision of individual relevance communicates the decision to the addressees and thus puts them in a position to take cognisance of its content and the grounds on which it was based. By their minor nature, those differences were not such as to prevent Romania from becoming acquainted, with sufficient clarity and precision, with the content of the contested decision and the grounds on which it was based. Therefore, they have no effect on the application of the period for instituting annulment proceedings.

( 1 ) Commission Implementing Decision (EU) 2018/873 of 13 June 2018 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2018 L 152, p. 29).