| | ECS-45 (Statute)Grace period and force majeure    
| ECJ (Statute) | Article 45 | | Periods of grace based on considerations of distance shall be determined by the Rules of Procedure. No right shall be prejudiced in consequence of the expiry of a time-limit if the party concerned proves the existence of unforeseeable circumstances or of force majeure. |
| Case | Pte | Ref | Text | T-125/06
Centro Studi Antonio Manieri | 22-30 | ECT-230
ECS-45
CFIR-43.6 | 22 The fifth paragraph of Article 230 EC provides that proceedings for annulment 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 accordance with Article 102(2) of the Rules of Procedure of the Court of First Instance, that period must also be extended by 10 days on account of distance.
23 In the present case, the decision of the Council was sent by letter of its General Secretariat dated 16 January 2006, and addressed to the applicant by fax the following day. At the hearing, the applicant expressly acknowledged that it received that letter on 17 January 2006.
24 Since the letter was received by the applicant on 17 January 2006, the time-limit for instituting proceedings for the annulment of the decision in question, extended by 10 days on account of distance, expired at midnight on 27 March 2006 (dies ad quem).
25 It is clear that a copy of the application was received at the Registry by fax on 20 March 2006 and the original application was subsequently lodged on 3 May 2006.
26 Under Article 43(6) of the Rules of Procedure, 20 March 2006 is deemed to be the date of lodgment for the purpose of compliance with the time-limits for taking steps in proceedings, provided that the signed original of the pleading was lodged at the Registry no later than 10 days thereafter, that is, no later than midnight on 30 March 2006. Given that, in the present case, the signed original application was lodged only on 3 May 2006, 20 March 2006 cannot be deemed to be the date of lodgment for the purposes of compliance with the time-limits for taking steps in proceedings. The only date that can be taken into account for the purpose of determining whether the application was lodged out of time is therefore 3 May 2006. Since that date is after the dies ad quem, the action is out of time and must, in principle, be declared inadmissible.
27 However, it is necessary to examine whether, in the present case, there exist unforeseeable circumstances or force majeure which would permit the Court to derogate from the time-limit in question on the basis of the second paragraph of Article 45 of the Statute of the Court of Justice, applicable to proceedings before the Court of First Instance pursuant to Article 53 of that statute.
28 The concepts of ‘force majeure’ and ‘unforeseeable circumstances’ within the meaning of Article 45 of the Statute of the Court of Justice contain both an objective element relating to abnormal circumstances unconnected with the person in question and a subjective element involving the obligation, on that person’s part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. In particular, the person concerned must pay close attention to the course of the procedure set in motion 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 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 (Case 209/83 Ferriera Valsabbia v Commission [1984] ECR 3089, paragraph 22, and order of the Court of Justice in Case C-325/03 P Zuazaga Meabe v OHIM [2005] ECR I-403, paragraph 25). It is therefore necessary to examine whether the circumstances relied on by the applicant may be regarded as exceptional circumstances which constitute a case of force majeure.
29 In the present case, the package containing the original signed application was sent by the applicant on 17 March 2006. By sending the original document on that date, the applicant could reasonably expect it to arrive at the Court before the expiry of the limitation period, especially since, in view of the fact that a copy of that document had been sent by fax, that period had been extended to 30 March 2006. The package in question had already reached the offices of the Luxembourg postal service on 21 March 2006, as demonstrated by the postmark on the package. The fact that the postal service kept the package for a period of 42 days (from 21 March to 3 May 2006) clearly constitutes abnormal circumstances unconnected with the applicant, which, for its part, demonstrated diligence in order to comply with the prescribed time-limits by sending the original application well before the expiry of the limitation period and by taking the steps necessary to extend that period in accordance with Article 43(6) of the Rules of Procedure by sending a copy of the application to the Court Registry by fax. Consequently, the fact that the original application was lodged out of time is attributable to a case of force majeure (see, to that effect, Joined Cases 25/65 and 26/65 Simet and Feram v High Authority [1967] ECR 33, p. 43).
30 It follows that, as the expiry of the time-limit is not enforceable against the applicant, pursuant to the second paragraph of Article 45 of the Statute of the Court of Justice, the Council’s plea alleging inadmissibility must be rejected. | T-125/06
Centro Studi Antonio Manieri | 31-34 | ECS-45
CFIR-43.6
CFIR-47.2-impl | 31 The time-limit for lodging the reply was 10 October 2006. Since the reply was received at the Court Registry on 12 October 2006, it was lodged out of time.
32 The original reply was sent from Brussels by post on 6 October 2006. Although the original was sent only four days before the expiry of the time-limit by which it was to be lodged, the applicant failed to avail itself of the possibility provided for in Article 43(6) of the Rules of Procedure to send a copy of the signed original to the Registry by fax or by any other technical means of communication available to the Court of First Instance, which could have extended the time-limit for lodging the reply by an additional period of up to 10 days.
33 In the light of those circumstances, the applicant failed to demonstrate the diligence to be expected of a reasonably prudent applicant in order to comply with the time-limits. On the contrary, it increased the risk that the reply would be delivered to the Court out of time, first, by failing to draw the appropriate conclusions from the problems encountered in lodging the application and, second, by omitting to send a copy of the signed original to the Registry by fax or by any other technical means of communication available to the Court.
34 Such a lack of diligence rules out the existence of a case of force majeure and it is therefore necessary to reject the reply as inadmissible. |
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