Court of Justice of the European Communities (including Court of First Instance Decisions)

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Procedure ° Time-limits ° Intervention ° Time-barred ° Unforeseeable circumstances or force majeure ° Concept
(EC Statute of the Court of Justice, Art. 42, second para.; Rules of Procedure of the Court of First Instance, Art. 115(1))

The period within which an application to intervene must be made, set at three months from the publication in the Official Journal of the European Communities of the notice relating to the lodging of the application initiating proceedings by Article 115(1) of the Rules of Procedure of the Court of First Instance, is mandatory and observance thereof, as in the case of procedural time-limits in general, is a matter of public policy which the Court must raise of its own motion.
For there to exist unforeseeable circumstances or force majeure within the meaning of the second paragraph of Article 42 of the EC Statute of the Court of Justice there must exist abnormal difficulties which are independent of the will of the party concerned and appear unavoidable even if all due care is taken. Neither the complexity of procedures or the slowness of internal communications constitute such circumstances. In particular, a party may not rely on the malfunctioning of its own departments.

In Case T-194/95 Intv II,
Area Cova SA, a company governed by Spanish law, established in Vigo, Spain,
Armadora José Pereira SA, a company governed by Spanish law, established in Vigo,
Armadores Pesqueros de Aldán SA, a company governed by Spanish law, established in Vigo,
Centropesca SA, a company governed by Spanish law, established in Vigo,
Chymar SA, a company governed by Spanish law, established in Vigo,
Eloymar SA, a company governed by Spanish law, established in Estribela, Spain,
Exfaumar SA, a company governed by Spanish law, established in Bueu, Spain,
Farpespan SL, a company governed by Spanish law, established in Moaña, Spain,
Freiremar SA, a company governed by Spanish law, established in Vigo,
Hermanos Gandón SA, a company governed by Spanish law, established in Cangas, Spain,
Heroya SA, a company governed by Spanish law, established in Vigo,
Hiopesca SA, a company governed by Spanish law, established in Vigo,
José Pereira e Hijos SA, a company governed by Spanish law, established in Vigo,
Juana Oya Pérez, residing in Vigo,
Manuel Nores González, residing in Marín, Spain,
Moradiña SA, a company governed by Spanish law, established in Cangas,
Navales Cerdeiras SL, a company governed by Spanish law, established in Camariñas, Spain,
Nugago Pesca SA, a company governed by Spanish law, established in Bueu,
Pesquera Austral SA, a company governed by Spanish law, established in Vigo,
Pescaberbés SA, a company governed by Spanish law, established in Vigo,
Pesquerías Bígaro Narval SA, a company governed by Spanish law, established in Vigo,
Pesquera Cíes SA, a company governed by Spanish law, established in Vigo,
Pesca Herculina SA, a company governed by Spanish law, established in Vigo,
Pesquera Inter SA, a company governed by Spanish law, established in Cangas,
Pesquerías Marinenses SA, a company governed by Spanish law, established in Marín,
Pesquerías Tara SA, a company governed by Spanish law, established in Cangas,
Pesquera Vaqueiro SA, a company governed by Spanish law, established in Vigo,
Sotelo Dios SA, a company governed by Spanish law, established in Vigo,
Asociación Nacional de Armadores de Buques Congeladores de Pesca de Merluza (Anamer), an association governed by Spanish law, established in Vigo,
Asociación Nacional de Armadores de Buques Congeladores de Pesquerías Varias (Anavar), an association governed by Spanish law, established in Vigo, and
Asociación de Sociedades Pesqueras Españolas (ASPE), an association governed by Spanish law, established in Vigo,
represented by Antonio Creus Carreras and Xavier Ruiz Calzado, of the Barcelona Bar, and by Bonifacio García Porras, of the Salamanca Bar, of Cuatrecasas Abogados, 78 Avenue d' Auderghem, Brussels.
applicants,
v
Council of the European Union, represented by John Carbery, Legal Adviser, and by Germán-Luis Ramos Ruano, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Bruno Eynard, Director-General of the Legal Affairs Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer, Kirchberg,
defendant,
APPLICATION for the annulment of Council Regulation (EC) No 1761/95 of 29 June 1995 amending, for the second time, Regulation (EC) No 3366/94 laying down for 1995 certain conservation and management measures for fishery resources in the Regulatory Area as defined in the Convention on Future Multilateral Cooperation in the North-West Atlantic Fisheries, inasmuch as it establishes the quota for Greenland halibut for the Community fleet (OJ 1995 L 171, p. 1),
THE PRESIDENT OF THE FIFTH CHAMBER OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES
makes the following
Order

1 By application received at the Registry of the Court of First Instance by means of facsimile transmission on 27 February 1996, the Commission of the European Communities, represented by Thomas van Rijn, Legal Adviser, and by Blanca Vilá Costa, a national civil servant on secondment to the Commission, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, applied to intervene in this case in support of the form of order sought by the defendant. The signed original of the application was received at the Registry on 28 February 1996.
2 It should be recalled first of all that, under Article 115(1) of the Rules of Procedure, "an application to intervene must be made within three months of the publication of the notice referred to in Article 24(6)". That period is mandatory and observance thereof, as in the case of procedural time-limits in general, is a matter of public policy which the Court must raise of its own motion.
3 In this case, the Court finds that the notice relating to the lodging of the application initiating proceedings provided for in Article 24(6) was published on 25 November 1995 (OJ 1995 C 315, p. 22). The period of three months, extended by two days on account of distance pursuant to Article 102(2) of the Rules of Procedure, expired on 27 February 1996. The signed original of the application to intervene was therefore received at the Registry after the expiry of the time-limit provided for in Article 115(1).
4 As regards the faxed version of the application to intervene, received at the Registry before the expiry of the time-limit, it should be observed that Article 43(1) of the Rules of Procedure requires that the original of every pleading be signed by the party' s agent or lawyer. That requirement is fulfilled, therefore, only when such a signed original is in fact received at the Registry and the receipt by the Registry of a mere copy or facsimile copy does not suffice for that purpose. Accordingly, under Article 6(3) of the Instructions to the Registrar of 3 March 1994 (OJ 1994 L 78, p. 32), the Registrar must accept only documents bearing the original signature of the party' s lawyer or agent and, under Article 10(3) of those Instructions he is to accept lodgment of a document received at the Registry by means of facsimile transmission as being within the time-limit only if that time-limit is one which could be extended and the original of the document concerned is then lodged with the required promptness. Since it is not possible to extend the time-limit for intervention, fixed by the Rules of Procedure, under either Article 115 or Article 103 of those Rules, the second subparagraph of Article 10(3) of the Instructions to the Registrar expressly provides that applications to intervene may not be lodged by means of facsimile transmission.
5 When asked for reasons to justify the delay in lodging its application, the Commission stated that, as a result of the complexity of its internal procedures and the slow communications within the institution, there was a delay before the Legal Service received authorization to intervene. It asked the Court to accept its application to intervene on the ground that it is the defendant in the related Case T-12/96 Area Cova and Others v Council and Commission and because it is involved in the facts of the present case and it has competence for the management of the common fisheries policy.
6 It should be observed in this regard that, for there to exist unforeseeable circumstances or force majeure within the meaning of the second paragraph of Article 42 of the EC Statute of the Court of Justice, there must exist abnormal difficulties which are independent of the will of the party concerned and appear unavoidable even if all due care is taken. Neither the complexity of procedures or the slowness of internal communications constitute such circumstances. In particular, a party may not rely in this regard on the malfunctioning of its own departments (see the judgment in Case C-195/91 P Bayer v Commission [1994] ECR I-5619, paragraphs 30 to 34).
7 As regards the other circumstances relied upon by the Commission which are indeed such as to explain its interest in being present in this case, they cannot excuse the failure to observe the time-limit or justify derogation from the application of Article 115(1) of the Rules of Procedure.

On those grounds,
THE PRESIDENT OF THE FIFTH CHAMBER OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The application of the Commission of the European Communities for leave to intervene in Case T-194/95 in support of the form of order sought by the defendant is dismissed.
2. The Commission shall bear its own costs.
Luxembourg, 14 May 1996.