61983J0209

1 . PROCEDURE - TIME-LIMIT FOR INSTITUTING PROCEEDINGS - COMMUNITY RULES - SCOPE

( RULES OF PROCEDURE , ART . 80 ( 1 ))

2.COMMUNITY LAW - PRINCIPLES - FORCE MAJEURE - CONCEPT

3.PROCEDURE - TIME-LIMIT FOR INSTITUTING PROCEEDINGS - BARRING OF ACTIONS - CASE OF FORCE MAJEURE - CONCEPT - LIMITS

( STATUTE OF THE COURT OF JUSTICE OF THE ECSC , ART . 39 , FIRST AND THIRD PARAS .)

1 . TIME-LIMITS FOR INSTITUTING PROCEEDINGS BEFORE THE COURT ARE GOVERNED EXCLUSIVELY BY COMMUNITY LAW AND CONSEQUENTLY ARE NOT SUBJECT TO THE NATIONAL RULES OF THE MEMBER STATES REGARDING IN PARTICULAR THE SUSPENSION OF TIME-LIMITS FOR INSTITUTING PROCEEDINGS BEFORE THEIR OWN COURTS DURING THE JUDICIAL VACATION .

2.APART FROM THE SPECIAL FEATURES OF THE SPECIFIC AREAS IN WHICH IT IS USED , THE CONCEPT OF FORCE MAJEURE ESSENTIALLY COVERS UNUSUAL CIRCUMSTANCES WHICH MAKE IT IMPOSSIBLE FOR THE RELEVANT ACTION TO BE CARRIED OUT . EVEN THOUGH IT DOES NOT PRESUPPOSE ABSOLUTE IMPOSSIBILITY , IT NEVERTHELESS REQUIRES ABNORMAL DIFFICULTIES , INDEPENDENT OF THE WILL OF THE PERSON CONCERNED AND APPARENTLY INEVITABLE , EVEN IF ALL DUE CARE IS TAKEN .

3.THE CONCEPT OF FORCE MAJEURE DOES 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 .

IN CASE 209/83

FERRIERA VALSABBIA SPA , HAVING ITS REGISTERED OFFICE IN ODOLO ( BRESCIA ), REPRESENTED BY ITS MANAGING DIRECTOR , GIOVABATTISTA BRUNORI , AND BY ANGELO CARATTONI , AVVOCATO , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , 34 B RUE PHILIPPE-II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ORESTE MONTALTO , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MANFRED BESCHEL , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR A DECLARATION THAT THE COMMISSION DECISION OF 14 JULY 1983 IMPOSING A FINE ON THE APPLICANT IS VOID ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 19 SEPTEMBER 1983 , THE APPLICANT , FERRIERE VALSABBIA SPA , HAVING ITS REGISTERED OFFICE AT ODOLO ( BRESCIA , ITALY ) BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 36 OF THE ECSC TREATY PRIMARILY FOR A DECLARATION THAT COMMISSION DECISION C ( 83 ) 1022/4 OF 14 JULY 1983 FINING IT LIT 284 240 000 PURSUANT TO ARTICLE 64 OF THE ECSC TREATY IS VOID , ALTERNATIVELY FOR A REDUCTION OF THAT FINE AND , IN THE FURTHER ALTERNATIVE , FOR A LONG EXTENSION OF THE PERIOD IN WHICH THE FINE MUST BE PAID .

2 IN THE CONTESTED DECISION IT IS STATED THAT ON SEVERAL OCCASIONS DURING THE THIRD QUARTER OF 1981 THE APPLICANT SOLD CONCRETE REINFORCING BARS , BILLETS AND WIRE ROD AT PRICES HIGHER THAN THOSE SHOWN IN THE PRICE-LIST WHICH IT HAD PUBLISHED IN ACCORDANCE WITH ARTICLE 60 OF THE ECSC TREATY AND IN ARTICLE 1 OF THE DECISION IT IS FOUND THAT SUCH OVERCHARGING CONSTITUTES AN INFRINGEMENT OF THAT PROVISION OF THE TREATY .

3 THE DECISION WAS SENT TO THE APPLICANT BY REGISTERED LETTER ON THE DAY ON WHICH IT WAS ADOPTED AND THE APPLICANT RECEIVED IT ON 21 JULY 1983 .

ADMISSIBILITY

4 THE COMMISSION HAS RAISED AN OBJECTION OF INADMISSIBILITY AGAINST THE APPLICATION UNDER ARTICLE 91 ( 1 ) OF THE RULES OF PROCEDURE ON THE GROUND THAT THE APPLICANT DID NOT OBSERVE THE ONE-MONTH PERIOD STARTING FROM NOTIFICATION OF THE CONTESTED DECISION WHICH ARTICLE 39 OF THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC PRESCRIBES FOR BRINGING PROCEEDINGS AND WHICH WAS EXTENDED BY TEN DAYS IN THE PRESENT CASE IN ACCORDANCE WITH ARTICLE 81 OF THE RULES OF PROCEDURE OF THE COURT AND ARTICLE 1 OF ANNEX II THERETO . SINCE THE APPLICANT WAS NOTIFIED OF THE CONTESTED DECISION ON 21 JULY 1983 , THE PERIOD FOR BRINGING PROCEEDINGS EXPIRED ON 1 SEPTEMBER 1983 , WHEREAS THE APPLICATION DID NOT ACTUALLY ARRIVE AT THE COURT UNTIL 19 SEPTEMBER 1983 . IN THE COMMISSION ' S VIEW , FAILURE TO OBSERVE THE PERIOD PRESCRIBED FOR BRINGING PROCEEDINGS BARS THE APPLICANT ' S RIGHT OF ACTION .

5 THE APPLICANT , ON THE OTHER HAND , SUBMITS THAT THE APPLICATION IS WHOLLY ADMISSIBLE AS FAR AS THE TIME-LIMIT IS CONCERNED . IT CONTENDS FIRST OF ALL THAT ARTICLE 36 OF THE ECSC TREATY DOES NOT LAY DOWN ANY FIXED PERIOD FOR BRINGING PROCEEDINGS AND THAT THE REFERENCE IN THAT PROVISION TO ARTICLE 33 CONCERNS ONLY THE ' ' CONDITIONS ' ' LAID DOWN IN THE FIRST PARAGRAPH OF THAT ARTICLE , THAT IS TO SAY THE RULES RELATING TO ACTIONS AND NOT THE TIME-LIMIT LAID DOWN IN THE THIRD PARAGRAPH . IN THIS CASE , THE PERIOD FOR BRINGING PROCEEDINGS IS TWO MONTHS , WHICH IS THE PERIOD FIXED IN THE DECISION ITSELF FOR PAYMENT OF THE FINE AND WHICH IS ALSO LAID DOWN BY THE EEC TREATY .

6 IN THE ALTERNATIVE , THE APPLICANT SUBMITS THAT , EVEN IF IT DID FAIL TO OBSERVE THE PERIOD PRESCRIBED FOR BRINGING PROCEEDINGS , ITS RIGHT OF ACTION CANNOT BE PREJUDICED IN CONSEQUENCE OF THE EXPIRY OF THAT PERIOD BECAUSE A CASE OF FORCE MAJEURE , WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 39 OF THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC , EXISTED .

7 IN THAT REGARD , IT CONTENDS THAT IT WAS IN FACT IMPOSSIBLE FOR IT TO BRING AN ACTION WITHIN THE PRESCRIBED PERIOD OF ONE MONTH BECAUSE THE COMMISSION DECISION WAS NOTIFIED TO IT SHORTLY BEFORE THE BEGINNING OF THE SUMMER VACATION WHEN WORK AT THE ITALIAN BAR AND IN ITALIAN UNDERTAKINGS STOPS COMPLETELY .

8 IT REFERS IN THIS REGARD TO ITALIAN LAW NO 742 OF 7 OCTOBER 1969 ON THE SUSPENSION OF PROCEDURAL TIME-LIMITS DURING THE SUMMER VACATION ( GAZZETTA UFFICIALE NO 281 OF 6 . 11 . 1969 ). UNDER THAT LAW , THE PROCEDURAL TIME-LIMITS APPLIED IN ORDINARY AND ADMINISTRATIVE COURTS ARE SUSPENDED BETWEEN 1 AUGUST AND 15 SEPTEMBER EVERY YEAR .

9 ALTHOUGH THAT LAW IS A NATIONAL LAW , IT CREATED A SITUATION IN WHICH THE APPLICANT WAS IN FACT PREVENTED FROM ACTING , SO THAT AT THE BEGINNING OF THE ITALIAN JUDICIAL VACATION IT FOUND IT IMPOSSIBLE TO FIND A LAWYER IN ITS AREA WITH SUFFICIENT EXPERIENCE OF COMMUNITY LAW TO ACT ON ITS BEHALF .

10 AS REGARDS THE TIME-LIMIT FOR BRINGING PROCEEDINGS APPLICABLE IN THIS CASE , THE FIRST POINT WHICH THE COURT MUST MAKE IS THAT IT IS PERFECTLY CLEAR FROM THE FIRST PARAGRAPH OF ARTICLE 39 OF THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC THAT THE APPEAL PROVIDED FOR IN ARTICLE 36 OF THE ECSC TREATY MUST BE LODGED WITHIN THE ONE-MONTH PERIOD LAID DOWN IN THE LAST PARAGRAPH OF ARTICLE 33 OF THAT TREATY .

11 CONSEQUENTLY , THE APPLICANT ' S FIRST ARGUMENT MUST BE REJECTED .

12 AS REGARDS THE APPLICANT ' S SECOND ARGUMENT , IT MUST BE POINTED OUT THAT TIME-LIMITS FOR INSTITUTING PROCEEDINGS BEFORE THE COURT ARE GOVERNED EXCLUSIVELY BY COMMUNITY LAW AND THAT , CONSEQUENTLY , THEY ARE NOT SUBJECT TO THE NATIONAL RULES OF THE MEMBER STATES REGARDING THE TIME-LIMITS FOR INSTITUTING PROCEEDINGS BEFORE THEIR OWN COURTS .

13 AS THE COMMISSION HAS RIGHTLY POINTED OUT , ARTICLE 80 ( L ) OF THE RULES OF PROCEDURE EXPRESSLY PROVIDES THAT THE PERIOD OF TIME PRESCRIBED FOR THE TAKING OF ANY PROCEDURAL STEP IS TO CONTINUE TO RUN DURING VACATIONS .

14 THE COURT CONSIDERS THAT THE STRICT APPLICATION OF COMMUNITY RULES ON PROCEDURAL TIME-LIMITS MEETS THE REQUIREMENT OF LEGAL CERTAINTY AND THE NEED TO AVOID ANY DISCRIMINATION OR ARBITRARY TREATMENT IN THE ADMINISTRATION OF JUSTICE . IT IS ONLY IF THE PARTY CONCERNED PROVES THE EXISTENCE OF UNFORESEEABLE CIRCUMSTANCES OR FORCE MAJEURE , AS REQUIRED BY THE THIRD PARAGRAPH OF ARTICLE 39 OF THE STATUTE ON THE COURT OF JUSTICE OF THE ECSC , THAT ITS RIGHT OF ACTION IS NOT PREJUDICED IN CONSEQUENCE OF THE EXPIRY OF A TIME-LIMIT .

15 HOWEVER , THE APPLICANT CLAIMS THAT THE CIRCUMSTANCES OF THE PRESENT CASE FALL SQUARELY WITHIN THE CONCEPT OF FORCE MAJEURE ; IN ITS VIEW , THE COURT ' S INTERPRETATION OF THAT CONCEPT WHERE PROCEDURAL QUESTIONS , RATHER THAN QUESTIONS OF SUBSTANCE , ARE CONCERNED SHOULD BE BASED ON EQUITABLE CONSIDERATIONS , SINCE RIGID TIME-LIMITS WOULD EFFECTIVELY EXCLUDE ALL POSSIBILITY OF OBTAINING A REMEDY AND WOULD THUS RESULT IN A BREACH OF THE FUNDAMENTAL RIGHTS OF THE INDIVIDUAL .

16 CONSEQUENTLY , IN THE APPLICANT ' S VIEW , THE TEST FOR DECIDING WHETHER FORCE MAJEURE EXISTS SHOULD BE WHETHER THE PERSON CONCERNED SHOWED A NORMAL DEGREE OF PRUDENCE , AS THE COURT HELD IN ITS JUDGMENT OF 20 FEBRUARY 1975 IN CASE 64/74 , REICH V HAUPTZOLLAMT LANDAU , ( 1975 ) ECR 261 , THAT IS TO SAY WHETHER OR NOT HE SHOWED THE CARE AND ATTENTION REQUIRED TO MEET UNFORESEEABLE SITUATIONS .

17 IN THAT REGARD , THE APPLICANT ALSO REFERS TO THE FACT THAT IN ITALIAN LAW THE TEST OF THE EXERCISE OF DUE DILIGENCE IS USED TO DETERMINE WHETHER FORCE MAJEURE EXISTS AND ITALIAN COURTS MAY EVALUATE THE CIRCUMSTANCES PLEADED BY THE PARTIES WITH A VIEW TO RELAXING TIME-LIMITS ( ARTICLES 650 , 668 AND 663 OF THE ITALIAN CODE OF CIVIL PROCEDURE AND ARTICLE 183 BIS OF THE CODE OF CRIMINAL PROCEDURE .

18 AS FAR AS THE FACTS OF THIS CASE ARE CONCERNED , THE APPLICANT CONSIDERS THAT IT COULD NOT HAVE OVERCOME THIS SITUATION BY EXERCISING A NORMAL DEGREE OF CARE OR BY MAKING EVERY REASONABLE EFFORT . IT STATES THAT , AFTER DRAWING UP THE DOCUMENTS NEEDED TO CONDUCT THE CASE IT TRIED , UNSUCCESSFULLY , AT THE BEGINNING OF AUGUST TO FIND A SUFFICIENTLY WELL-QUALIFIED LAWYER IN ITS AREA . THE LAWYER WHO USED TO ADVISE IT IN ECSC CASES WAS ON HOLIDAY THROUGHOUT THE PERIOD IN WHICH TIME-LIMITS WERE SUSPENDED .

19 FURTHERMORE , THROUGHOUT THAT PERIOD , THE LAW LIBRARY OF THE BRESCIA BAR WAS CLOSED AND THE CENTRAL LAW LIBRARY IN ROME WAS OPEN FOR ONLY TWO HOURS A DAY , WHICH MADE IT IMPOSSIBLE FOR THE LAWYER WHO WAS EVENTUALLY INSTRUCTED TO FAMILIARIZE HIMSELF WITH COMMUNITY LAW .

20 TO SUPPORT ITS CASE , THE APPLICANT HAS SUBMITTED STATEMENTS BY THE PRESIDENT OF THE ITALIAN BAR AND BY THE PRESIDENT OF THE BRESCIA BAR ASSOCIATION AND ALSO A STATEMENT BY ITS USUAL LAWYER IN ECSC CASES .

21 THE APPLICANT ' S ARGUMENTS CANNOT BE ACCEPTED . THE COURT HAS CONSISTENTLY HELD THAT , APART FROM THE SPECIAL FEATURES OF THE SPECIFIC AREAS IN WHICH IT IS USED , THE CONCEPT OF FORCE MAJEURE ESSENTIALLY COVERS UNUSUAL CIRCUMSTANCES WHICH MAKE IT IMPOSSIBLE FOR THE RELEVANT ACTION TO BE CARRIED OUT . EVEN THOUGH IT DOES NOT PRESUPPOSE ABSOLUTE IMPOSSIBILITY , IT NEVERTHELESS REQUIRES ABNORMAL DIFFICULTIES , INDEPENDENT OF THE WILL OF THE PERSON CONCERNED AND APPARENTLY INEVITABLE , EVEN IF ALL DUE CARE IS TAKEN ( SEE THE JUDGMENT OF 9 . 2 . 1984 IN CASE 284/82 , BUSSENI V COMMISSION , ( 1984 ) ECR 557 ).

22 CONSEQUENTLY , THE CONCEPT OF FORCE MAJEURE DOES 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 .

23 IN THAT REGARD , IT MUST BE STATED THAT THE APPLICANT DID NOT SHOW THE NECESSARY DEGREE OF DILIGENCE , SINCE ON RECEIPT OF THE CONTESTED DECISION IT STILL HAD TEN DAYS BEFORE THE BEGINNING OF THE SUMMER HOLIDAYS TO MAKE CONTACT WITH ITS USUAL LAWYER OR TO FIND A SUFFICIENTLY WELL-QUALIFIED LAWYER TO ACT ON ITS BEHALF .

24 IT IS CLEAR FROM THE APPLICANT ' S OWN STATEMENTS AT THE HEARING THAT IN THE TIME BETWEEN ITS RECEIVING THE CONTESTED DECISION AND THE BEGINNING OF THE SUMMER HOLIDAYS IT SIMPLY PREPARED A FILE AND DID NOT FIRST SEEK A LAWYER TO ACT ON ITS BEHALF . IT WAS NOT UNTIL 8 AUGUST , AT THE EARLIEST , THAT THE APPLICANT MADE CONTACT WITH THE LAWYER WHO HAS ACTUALLY TAKEN CHARGE OF THE CASE .

25 FINALLY , IT SHOULD BE NOTED THAT THE APPLICANT COULD HAVE AVAILED ITSELF OF ARTICLE 38 ( 7 ) OF THE RULES OF PROCEDURE WHICH ALLOWS AN APPLICATION TO BE LODGED EVEN IF IT DOES NOT COMPLY WITH THE FORMAL REQUIREMENTS , PROVIDED THAT IT IS PUT IN ORDER WITHIN A REASONABLE PERIOD PRESCRIBED BY THE REGISTRAR .

26 CONSEQUENTLY , IT MUST BE STATED THAT IN THIS CASE THERE WERE NO ABNORMAL , INSURMOUNTABLE DIFFICULTIES WHICH COULD HAVE JUSTIFIED THE DELAY IN SEEKING A LAWYER TO ACT ON THE APPLICANT ' S BEHALF IF IT HAD TAKEN ALL THE NECESSARY STEPS IN TIME .

27 IT FOLLOWS FROM THE FOREGOING THAT THE DELAY IN BRINGING THE ACTION WAS NOT DUE TO FORCE MAJEURE AND THAT THE ACTION IS INADMISSIBLE .

COSTS

28 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE APPLICANT HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;

2 . ORDERS THE APPLICANT TO PAY THE COSTS .