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

Provisional text

OPINION OF ADVOCATE GENERAL

WAHL

delivered on 24 January 2019(1)

Case C‑660/17 P

RF

v

European Commission

(Appeal — Failure to comply with the time limit for lodging an application before the General Court — Defence — Unusual delay in postal shipping — Article 45 of the Statute of the Court of Justice of the European Union — Existence of unforeseeable circumstances or of force majeure — Criteria of assessment)

1.        To ensure equality of arms before courts of law, procedural time limits are, as a matter of principle, mandatory in nature. Just as in most domestic jurisdictions, however, a failure to comply with such time limits does not always lead to a time-bar in proceedings before the EU Courts. In particular, in accordance with Article 45, second paragraph, of the Statute of the Court of Justice of the European Union, ‘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’.

2.        In the order under appeal, (2) RF’s action for annulment was declared manifestly inadmissible because the application had been lodged out of time. The General Court considered that RF had not been able to establish the existence of unforeseeable circumstances or of force majeure to justify its failure to comply with the relevant time limit for lodging the signed original of the application at the Registry of the General Court. It considered, in particular, that a significant delay caused by internal technical problems of the postal service provider in question does not constitute an unforeseeable circumstance or force majeure.

3.        This appeal brought by RF allows the Court to provide guidance on how Article 45 of the Statute of the Court of Justice of the European Union should be interpreted. It therefore gives the Court a welcome opportunity to clarify its case-law on the meaning of unforeseeable circumstances, a concept closely related to that of force majeure.

I.      Legal framework

A.      Statute of the Court of Justice of the European Union

4.        Article 45 of the Statute of the Court of Justice of the European Union, which is set out in Title III thereof, provides:

‘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.’

5.        Article 53 of the Statute of the Court of Justice of the European Union reads:

‘The procedure before the General Court shall be governed by Title III.

Such further and more detailed provisions as may be necessary shall be laid down in its Rules of Procedure. …’

B.      Rules of Procedure of the General Court

6.        Title III of the Rules of Procedure of the General Court (3) concerns direct actions. Chapter 1, Section 4, of that title lays down rules on time limits.

7.        Article 58 reads:

‘1.      Any procedural time limit prescribed by the Treaties, the Statute or these Rules shall be calculated as follows:

…

(b)      a time limit expressed in weeks, months or years shall end with the expiry of whichever day in the last week, month or year is the same day of the week, or falls on the same date, as the day during which the event or action from which the time limit is to be calculated occurred or took place; if, in a time limit expressed in months or years, the day on which it should expire does not occur in the last month, the time limit shall end with the expiry of the last day of that month;

…’

8.        Article 60 of that same section concerns the extension of such time-limits on account of distance. It states that ‘the procedural time limits shall be extended on account of distance by a single period of 10 days’.

9.        Chapter 2 of Title III concerns procedural documents. Article 72 states:

‘1.      A procedural document shall be lodged at the Registry either in paper form, where appropriate after transmission of a copy of the original of that document by telefax in accordance with Article 73(3), or by the method referred to in the decision of the General Court adopted pursuant to Article 74.

2.      All procedural documents shall bear a date. In the calculation of procedural time limits, only the date and time in the Grand Duchy of Luxembourg of [lodging] at the Registry shall be taken into account.

…’

10.      Article 73 of those rules provides:

‘…

2.      The original, accompanied by all annexes referred to therein, shall be submitted together with three copies for the General Court and a copy for every other party to the proceedings. Copies shall be certified by the party lodging them.

3.      By way of derogation from the second sentence of Article 72(2), the date on and time at which a full copy of the signed original of a procedural document … is received at the Registry by telefax shall be deemed to be the date and time of [lodging] for the purposes of compliance with the procedural time limits, provided that the signed original of the procedural document … is lodged at the Registry no later than 10 days thereafter. Article 60 shall not apply to that time limit of 10 days.’

C.      Other relevant rules

11.      The Practice Rules for the implementation of the Rules of Procedure of the General Court (‘the Practice Rules of the General Court’) (4) states, as concerns the lodging of procedural documents, inter alia:

‘79.      The date on which a procedural document is lodged by fax shall be deemed to be the date of [lodging] for the purposes of compliance with a time limit only if the original document bearing the handwritten signature of the representative that was transmitted by fax is lodged at the Registry no later than 10 days thereafter, as prescribed under Article 73(3) of the Rules of Procedure.

80.      The original document bearing the handwritten signature of the representative must be sent without delay, immediately after its dispatch by fax, without any corrections or amendments, even of a minor nature, being made thereto.

81.      In the event of any discrepancy between the original document bearing the handwritten signature of the representative and the copy previously received at the Registry by fax, the date on which that original signed document is lodged shall be deemed to be the date of receipt.’

12.      The Practice directions to parties concerning cases brought before the Court (‘the Practice directions of the Court’) (5) provide, as concerns the lodging and transmission of procedural documents, inter alia:

‘42.      …a procedural document may also be sent to the Court by post … pursuant to Article 57(7) of the Rules of Procedure, only the date and time of [the lodging] of the original at the Registry are taken into consideration in the calculation of procedural time limits. To prevent any time-barring, it is therefore strongly recommended that it be sent by registered post or by express delivery, several days before the passing of the time limit prescribed for [lodging] of the document.

43.      …a [copy of a signed] document lodged by [telefax or email] will be treated as complying with the relevant time limit only if the signed original itself … reaches the Registry at the latest 10 days after [the copy] was sent. That original must therefore be sent without delay, immediately after the dispatch of the copy, without any corrections or amendments, even of a minor nature. In the event of any discrepancy between the signed original and the copy previously transmitted, only the date on which the signed original was lodged will be taken into consideration.’

II.    Background to the proceedings and the order under appeal

13.      RF’s application, seeking the annulment of Commission Decision C(2016) 5925 final of 15 September 2016 rejecting the complaint in case COMP AT.40251 — Rail transport, freight forwarding (‘the decision in question’), was transmitted to the General Court by fax on 18 November 2016. The signed original reached that court on 5 December 2016, 17 days after the transmission of the copy of the application by fax.

14.      As concerns the applicable procedural time limit, the General Court made the following determinations: (1) the decision in question had been notified to RF on 19 September 2016; (2) in accordance with Article 263, sixth paragraph, TFEU, an action for annulment was to be lodged within two months of notification; (3) on the basis of a combined application of Article 58(1) and Article 60 of the Rules of Procedure of the General Court, the time limit for lodging the application had expired on 29 November 2016 at midnight; (4) pursuant to Article 73(3) of the Rules of Procedure, the copy transmitted by telefax before the expiry of that time limit could not be taken into consideration for the purposes of determining the date on which the application was lodged, given that the signed original had not reached the Registry of the General Court within 10 days of the transmission of the copy, as set out in that provision; and (5) the application had consequently been lodged out of time. (6)

15.      It can also be seen from the order under appeal that the signed original had been sent by post on the same day that the application had been transmitted to the General Court by fax. However, according to RF, the time taken (17 days) by Poczta Polska, the main postal operator in Poland, to deliver the parcel containing the signed original had exceeded the usual duration of shipping. As the late delivery was caused by an internal technical problem at Poczta Polska, RF claimed to have acted with all the diligence that could reasonably be expected of it. It considered, in particular, that the original had been lodged out of time because of unforeseeable circumstances or of force majeure within the meaning of Article 45 of the Statute of the Court of Justice of the European Union and, as a consequence, the application should not be time-barred. (7)

16.      In a first step, regarding the issue of whether the circumstances relied upon by RF were sufficient to establish the existence of unforeseeable circumstances or of force majeure, the General Court recalled, first, that time limits for instigating proceedings are mandatory in nature; second, that unforeseeable circumstances or force majeure may be relied upon only in exceptional circumstances; and, third, that in accordance with the Court’s case-law, the applicant 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. (8)

17.      The General Court then went on to state that an applicant could not rely on unforeseeable circumstances or force majeure in circumstances where a diligent and prudent person would have been able to avoid the expiry of the period prescribed for instituting proceedings. The General Court also considered that only an event that cannot be avoided and that thus constitutes the decisive reason for the time-bar can be regarded as an unforeseeable circumstance or force majeure. (9)

18.      Moreover, according to the General Court, it cannot be inferred from Article 73(3) of the Rules of Procedure that a postal delivery exceeding the 10 days referred to in that provision would automatically constitute an unforeseeable circumstance or force majeure. (10) In that connection, it made reference to the Court of Justice’s order in Faktor B. i W. Gęsina, (11) a case that bears unmistakeable factual similarities to the present case. In that case, the Court of Justice confirmed by way of order the General Court’s assessment that the appellant had not established the existence of an unforeseeable circumstance or force majeure. (12)

19.      In a second step, the General Court assessed whether RF had established the existence of unforeseeable circumstances or of force majeure.

20.      More specifically, the General Court examined whether the delay in postal shipment was the decisive reason that RF had brought the action out of time and whether it was an event that RF could not have avoided. In the light of, on the one hand, the explanations provided by RF and, on the other hand, its obligation to pay careful attention to the course of shipment, the General Court held that RF had failed to establish the existence of unforeseeable circumstances or of force majeure. It observed, in particular, that RF had provided no explanation as to measures it had undertaken after the parcel containing the original had been entrusted to the postal service provider for shipping. (13)

21.      The General Court thus declared the action for annulment manifestly inadmissible.

III. Procedure before the Court and forms of order sought

22.      By its appeal, RF claims that the Court should:

—      set aside the order under appeal and refer the case back to the General Court so that that court may examine the application and give a ruling on the merits, subject to appeal;

—      alternatively — if the Court finds that the conditions for giving final judgment are satisfied in the present case — set aside the order under appeal and uphold the forms of order sought at first instance in their entirety;

—      order the European Commission to pay the costs.

23.      The Commission asks the Court to dismiss the appeal and order RF to pay the costs.

24.      Pursuant to Article 76(2) of the Rules of Procedure of the Court of Justice, the Court decided to proceed without a hearing.

IV.    Analysis

25.      RF relies on four grounds in support of its appeal. The first ground alleges that the General Court misinterpreted Article 45 of the Statute of the Court of Justice of the European Union, read in conjunction with Article 53 thereof. The second ground alleges a breach of Article 126 of the Rules of Procedure of the General Court, (14) because RF’s action was declared manifestly inadmissible. The third ground alleges that the General Court erred in finding that RF had not proven the existence of unforeseeable circumstances within the meaning of Article 45 of the Statute of the Court of Justice of the European Union. Last, by the fourth ground RF alleges that the order under appeal is vitiated by a breach of Article 1, Article 6(1) and Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’).

26.      The Commission claims that the grounds of appeal put forward by RF should be dismissed as partly unfounded (first and second grounds of appeal) and partly inadmissible (third and fourth grounds of appeal).

A.      Assessment

1.      First and second grounds of appeal

27.      By the first and second grounds of appeal, which are intrinsically linked, RF submits in essence that the General Court erred in law in dismissing its action on the basis of Article 126 of the Rules of Procedure of the General Court as manifestly inadmissible (second ground). That error stems from a misinterpretation of Article 45 of the Statute of the Court of Justice of the European Union (first ground). More specifically, it maintains that the General Court erred in conflating the concepts of ‘force majeure’ and ‘unforeseeable circumstances’. RF maintains, in that regard, that the order under appeal confuses the clear distinction established by the authors of the Statute of the Court of Justice of the European Union between ‘unforeseeable circumstances’ and ‘force majeure’. Moreover, RF claims that the General Court’s reading of Article 45 of the Statute of the Court of Justice of the European Union is discriminatory since it places those residing further from the Court in a disadvantageous position.

28.      The Commission disagrees. It submits that the General Court followed consistent case-law which does not make a distinction between ‘unforeseeable circumstances’ and ‘force majeure’. It observes, moreover, that a strict interpretation of Article 45 of the Statute of the Court of Justice of the European Union, according to which a problem that occurs during postal shipping cannot alone constitute an unforeseeable circumstance or force majeure, is neutral and does not adversely affect those whose geographical distance to the Court is greater.

(a)    The assessment of ‘unforeseeable circumstances or force majeure’ under Article 45 of the Statute of the Court of Justice of the European Union: two concepts but one test

29.      I can see merit in the arguments of both parties.

30.      As the Commission has correctly pointed out, the Court’s case-law concerning the possibility of being exempted from time-bar on the basis of Article 45 of the Statute of the Court of Justice of the European Union does not make a clear distinction between the concepts of unforeseeable circumstances and force majeure. In the case-law, those concepts are often bundled together and examined according to identical criteria without further explanation regarding their possible differences.

31.      The roots of the Court’s case-law regarding exemptions from procedural time limits can be traced back to the case-law on force majeure in the field of agricultural regulations. (15) Of particular significance is the line of case-law originating in Busseni, (16)case-law that defines force majeure as covering ‘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’. (17)

32.      A similar definition has been adopted in the context of procedural time limits, a definition that covers both unforeseeable circumstances and force majeure. It can be inferred from the Court’s judgment in Bayer v Commission (18) that the concepts of unforeseeable circumstances and force majeure each contain two elements.(19) The concepts contain an objective element relating to abnormal circumstances unconnected with the party and 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 that respect, the Court has explained that, in order to be able to rely on unforeseeable circumstances or force majeure, a party 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. (20)

33.      Although the Court has never, to my knowledge, made a clear distinction between the two concepts, it seems reasonable to suppose that their scope is not exactly the same.

34.      How should those concepts be understood within the context of proceedings before the EU Courts?

35.      In that regard, I would argue that force majeure (vis major) refers to a more limited set of extreme events, or ‘acts of God’. Those events would in any event include natural disasters such as major floods, earthquakes and hurricanes, but may also cover other particularly irresistible (manmade) circumstances. (21) Thus, to my mind, force majeure refers to an external force which hinders the party from fulfilling an obligation and leaves that party with no alternative course of action (this would for example be the case where a parcel sent by airmail could not be delivered because the plane carrying it crashed into the ocean).

36.      On the other hand, to me, the concept of unforeseeable circumstances is somewhat more flexible. It can encompass a broader set of circumstances not covered by force majeure. Those could include any number of unusual circumstances such as technical interruptions, electricity blackouts or failures in communication systems.

37.      To a certain extent, the definition of those concepts in relation to each other is a matter of personal judgment, and they might even partly overlap. Nevertheless, no matter how the demarcation between the two concepts is drawn, it is clear that they are very closely connected and designate a set of exceptional circumstances in which derogations may be granted from the application of procedural time limits — time limits that are otherwise to be interpreted strictly. Indeed, a strict application of time limits is, as a matter of principle, necessary to ensure legal certainty and to avoid any discrimination or arbitrary treatment in the administration of justice. (22)

38.      At the same time, however, it should be emphasised that the legislature has chosen to devise an exception to that very fundamental procedural principle, a rule that makes it possible to derogate from such time limits. According to Article 45 of the Statute of the Court of Justice of the European Union, both unforeseeable circumstances andforce majeure are reasons to derogate from those time limits.

39.      To me, the choice to include both concepts in Article 45 of the Statute of the Court of Justice of the European Union constitutes a strong indication that the legislature did not intend for the list of circumstances falling under Article 45 to be construed too narrowly. That choice is also a good indicator that the legislature did not wish to lay down an exhaustive list of circumstances that may be relied upon to derogate from procedural time limits, but a rather flexible rule that can be adapted to the circumstances of the particular case.

40.      The test applied by the Court to establish the existence of unforeseeable circumstances or of force majeure in my view reflects those choices. Although it is true that the Court has repeatedly held that derogations from time limits can be made only in quite exceptional circumstances, (23) the test allows the Court to flexibly assess in each individual case on the basis of the particularities of the case whether the prescribed time limit has been exceeded as a result of an event that the party could not reasonably have foreseen and thus avoided without unreasonable sacrifices.

41.      As I read the Court’s case-law, the existence of ‘unforeseeable circumstances or of force majeure’ should therefore be assessed together, as a conceptual cluster, on the basis of the same test emphasising the reasonable nature of the action required of the party concerned to avoid exceeding the prescribed time limit: by verifying on a case-by-case basis that, on the one hand, the non-compliance with procedural rules occurred in abnormal circumstances unconnected with the party concerned and, on the other hand, the party concerned has taken steps to avoid the consequences of the abnormal event without making unreasonable sacrifices.

42.      As is necessarily the case where a circumstantial assessment is called for, the answer as to what might be the abnormal event, on the one hand, and the appropriate steps to avoid the negative consequences of that event, on the other, will depend on the particularities of each case.

43.      Fundamentally, by applying that relatively flexible yardstick it is possible to ensure equality of arms between the parties in circumstances where a strict application of procedural time limits would place the parties to the proceedings on an unequal footing.

(b)    The legal error in the order under appeal

44.      In the order under appeal, the General Court has applied a stricter test than the one dictated by the case-law of the Court of Justice. In excluding the existence of unforeseeable circumstances or of force majeure in the present case, the General Court assessed whether the failure to comply with the prescribed time limit was caused by an event that could not have been avoided. (24)

45.      In fact, although the General Court did indeed reiterate the test stemming from Bayer v Commission in the order under appeal, it went on to hold that the existence of an unforeseeable circumstance or of force majeure within the meaning of Article 45 of the Statute of the Court of Justice of the European Union can only arise where the event in question cannot be avoided and where it constitutes, consequently, the decisive reason why the party has not complied with the prescribed time limit (‘the unavoidability requirement’). (25) It also held that the slowness of postal shipping cannot alone constitute an unforeseeable circumstance or force majeure, unless there are other particular circumstances involved, such as a strike, administrative breakdown or a natural disaster. (26)

46.      As mentioned, the Court’s case-law requires, on the one hand, that the failure to comply with the prescribed time limit is caused by an external and abnormal event unconnected to the party concerned (the objective element). On the other hand, parties must take appropriate measures to guard against the consequences of abnormal events, without however being required to make unreasonable sacrifices to avoid exceeding the prescribed time limit. In that regard, parties are to pay careful attention to ‘the procedure set in motion’ and, in particular, to show that they have acted diligently so as to comply with the prescribed time limits (the subjective element). (27)

47.      By contrast, it does not require, in addition, that the abnormal event could not have been avoided. Applying such an additional requirement would reduce the scope of Article 45 of the Statute of the Court of Justice of the European Union considerably to merely covering situations of near, if not absolute, impossibility.

48.      As the Commission points out, it is true that the Court of Justice seems to have endorsed, on at least one occasion, the approach adopted by the General Court in the order under appeal. This occurred in the Court’s order in Faktor B. i W. Gęsina. (28) In that order, the Court of Justice confirmed the General Court’s assessment regarding the absence of unforeseeable circumstances or of force majeure on the basis of an application of the unavoidability requirement. (29) Just as in this case, the question was whether a considerable delay in postal shipping (from Poland to Luxembourg) could be relied upon by an applicant to establish the existence of unforeseeable circumstances or of force majeure within the meaning of Article 45 of the Statute of the Court of Justice of the European Union. (30)

49.      That order (like the order under appeal) appears to depart from the authority devolving from Bayer v Commission. That is so in so far as the Court of Justice validated the application of the unavoidability requirement by the General Court.

50.      It should not be forgotten that parties may, in accordance with Article 72 of the Rules of Procedure of the General Court, as applicable to the present proceedings, lodge procedural documents at the Registry of that court in paper form. Under those rules, parties still enjoyed that possibility despite the existence of e-Curia, a system that allows parties to lodge procedural documents by electronic means. (31)

51.      The Practice Rules of the General Court and the Practice directions of the Court also deserve mention in this context. Those rulesspecifically envisage the possibility of a party sending procedural documents by post. (32) In that regard, it is stated that, to ensure that a copy sent by fax is taken into account for the purposes of compliance with a time limit, the party must send the signed original without delay, immediately after its dispatch by fax. (33)

52.      Yet the unavoidability requirement applied by the General Court means that an unusual delay in postal shipping will automatically fall outside the scope of Article 45 of the Statute of the Court of Justice of the European Union.

53.      Not every party can bring procedural documents to the EU Courts in person without unreasonable sacrifices. Moreover, because the Rules of Procedure of the General Court as applicable to the present proceedings expressly allow parties to communicate procedural documents in paper form, a categorical exclusion of delays in postal shipping would in my view be at odds with both the case-law of the Court of Justice and the Rules of Procedure of the General Court.

54.      For those reasons, I take the view that the order under appeal is vitiated by an error in law.

55.      That having been established, it should nevertheless be examined how, more concretely, the existence of unforeseeable circumstances and of force majeure should be assessed on the basis of the criteria set out in the case-law.

(c)    The nature of the assessment and the factors to be taken into account in assessing whether the party has acted with sufficient diligence

56.      It is not easy to answer that question on the basis of the Court’s case-law. That is because the assessment of the circumstances relied upon by parties to establish the existence of unforeseeable circumstances or of force majeure on the basis of the test set out in Bayer v Commission is, in the final analysis, a circumstantial one.

57.      It should be borne in mind, however, that the existence of circumstances justifying derogation from procedural time limits is to be assessed on the basis of elements presented by the party relying on Article 45 of the Statute of the Court of Justice of the European Union: according to that provision, that party must prove the existence of unforeseeable circumstances or of force majeure. Accordingly, it is for that party to show that (a) there was an abnormal event unconnected to it (the objective element) and (b) it has taken all reasonable measures to avoid exceeding the prescribed time limit (the subjective element).

58.      As indicated above, according to my reading of the case-law, an unusual delay in postal shipping should not be excluded outright from the scope of Article 45 of the Statute of the Court of Justice of the European Union. Today, it seems to be a reasonable premiss that mail should, at least in principle, reach its destination anywhere in Europe within 10 days. In fact, a delivery time surpassing the 10 additional days provided for in Article 73(3) of the Rules of Procedure can in my view be described as an abnormal event (unconnected to the party concerned). (34)

59.      That is why, in order to satisfy the objective element (a), it should be sufficient for a party to show that the failure to comply with the prescribed time limit was caused by an unusual delay in postal shipping. In that regard, there should be no need to prove that that delay was caused by an extraordinary event such as a strike, a natural disaster or an administrative breakdown. (35)

60.      Nonetheless, experience tells us that delivery times may vary and (even considerable) delays in postal shipping sometimes occur. That is why, in establishing whether the objective element is fulfilled, due regard must be had to whether the delay is unusual in the circumstances, in particular with regard to factors such as distance, time of the year and so on.

61.      Once it has been established that the delay was unusual in the particular circumstances of the case, it must also be examined whether the party has taken all reasonable steps to avoid exceeding the prescribed time limit.

62.      In determining whether the subjective element (b) is satisfied, a number of factors must be considered.

63.      First, it is important to establish when the signed original of the application was entrusted to the mail delivery service. In my view, compliance with paragraph 80 of the Practice Rules of the General Court — that is to say that the original was dispatched without delay, on the same day that the copy was sent by fax, or the next day at the very latest — is an indication of diligent behaviour. (36)

64.      Second, a party should not be required to use the most expensive international delivery services on offer where a less expensive service offered by an operator appears, in principle, adequate to ensure delivery of the signed original to the General Court’s Registry within the prescribed period. (37) However, because delays do occur, a party that decides to send a procedural document by post, instead of via e-Curia, must in my view take such precautions as a diligent person may reasonably be expected to take. Depending on the circumstances (for example, where the service provider is reputedly unreliable or where the time limit expires around a public holiday) therefore, diligence may require the signed original to be sent by express courier, express delivery or, at the very minimum, by registered mail.

65.      Do the obligations of the party end there?

66.      I do not think so. It is true that once a parcel is entrusted to a postal service provider for shipping, the sender loses effective control over the parcel. A point that should be emphasised, however, is that there are risks involved in sending procedural documents by post, risks related to delays that a party could avoid by using e-Curia. (38)

67.      Therefore, in my opinion, a party that has chosen the option provided for in Article 73(3) of the Rules of Procedure of the General Court has an obligation to follow up on the shipment, in order to at least try to prevent those risks from materialising. Indeed, a party must pay careful attention to ‘the procedure set in motion’ and demonstrate diligence in order to comply with the prescribed time limit. (39)

68.      But what, more concretely, does that obligation entail in this particular context?

69.      Where a tracking number is available, it means that a party must monitor closely and regularly the course of the shipment until the document is duly delivered at the Registry of the General Court. Where tracking is not available, it means that a party should contact the Registry (well before the expiry of the prescribed time limit) in order to verify that the signed original has arrived on time. (40) Where it appears that the shipping is delayed, the party can still attempt to comply with the prescribed time limit by actively seeking to locate the parcel by contacting the postal service provider concerned and, if all else fails, by sending (or bringing, where reasonable) to the Registry a version of the application bearing a second original signature, intended to replace the former original which has been lost. (41)

70.      By taking those steps, the party concerned can show that it has acted with diligence, but without making unreasonable sacrifices. In that respect, whether there is a realistic chance of successfully complying with the prescribed time limit is therefore irrelevant.

71.      In conclusion, where a party has chosen to use the option provided for in Article 73(3) of the Rules of Procedure of the General Court, that party must demonstrate, in order to be exempted from time-bar under Article 45 of the Statute of the Court of Justice of the European Union, that it has acted diligently — by taking all reasonable measures to avoid exceeding the prescribed time limit. Thus, the party must show that the signed original was sent immediately after the transmission of the copy by fax; that the original was sent by a postal service that appeared adequate to ensure delivery of the signed original of the application to the General Court’s Registry within the prescribed time limit; and that it has duly monitored the course of the shipping and where that monitoring revealed a delay, the party has attempted to comply with the prescribed time limit.

(d)    Interim conclusion

72.      In the order under appeal, the General Court held, in a first step, that a party may be exempted from time-bar only if the failure to comply with the prescribed time limit was caused by an event that could not have been avoided. In so doing, the General Court erred in law.

73.      However, that error should not, in this case, cause the order under appeal to be set aside. It follows from consistent case-law that where the grounds of a decision of the General Court are vitiated by an error of law, but its operative part is shown to be well founded on other legal grounds, such an error is not one that should cause that decision to be set aside, and the grounds should be substituted. (42)

74.      Because the General Court did examine, in a second step, the measures RF had taken to avoid exceeding the prescribed time limit, the legal error identified does not affect the operative part of the order under appeal.

75.      It can be seen from the order under appeal that RF sent the signed original immediately after transmission of the copy of the original to the General Court by fax (the very same day), and that it did so by using registered mail and a service that appeared adequate to ensure timely delivery. However, RF did not adduce any other evidence to show that it had attempted to monitor the course of the shipment and, once the delay was discovered, that it had taken any steps to avoid exceeding the prescribed time limit. (43) In other words, the General Court was nevertheless correct to conclude that RF had not demonstrated diligence in order to comply with the prescribed time limit.

76.      Therefore, I conclude that it is necessary, by making a substitution of the grounds, to reject the argument that by misinterpreting Article 45 of the Statute of the Court of Justice of the European Union, the General Court wrongly concluded that RF had not established the existence of unforeseeable circumstances or of force majeure.

77.      The first and second grounds of appeal should therefore be rejected as unfounded.

2.      Third ground of appeal

78.      RF submits that the General Court incorrectly found that the appellant had not proven the existence of unforeseeable circumstances within the meaning of Article 45 of the Statute of the Court of Justice of the European Union. According to RF, the existence of unforeseeable circumstances was established: it not only submitted more evidence of those circumstances than was necessary but submitted all the evidence available to it in general.

79.      The Commission contends that the arguments presented by the appellant relate to findings of fact and should be rejected as inadmissible.

80.      I agree with the Commission. This ground essentially reproduces the arguments already raised under the first ground of appeal, albeit from a purely factual perspective.

81.      It is well established that, under Article 58 of the Statute of the Court of Justice of the European Union and Article 256 TFEU, the General Court has exclusive jurisdiction to make a finding on the facts and assess those facts. Appeals brought before the Court of Justice are therefore limited to points of law. The Court of Justice may thus review the legal characterisation of those facts and the legal conclusions the General Court has drawn from them. (44) However, the fresh assessment of the facts or evidence is not a question of law which is subject to review by the Court of Justice. That is so unless the facts or the evidence produced before the General Court have been distorted, in which case the alleged distortion should be apparent from the documents in the file. (45)

82.      By its third ground of appeal, RF is clearly seeking a new assessment of the facts and the evidence presented before the General Court without alleging any distortion thereof. On that basis, the third ground of appeal must be dismissed as inadmissible.

3.      Fourth ground of appeal

83.      RF argues that, in the order under appeal, the General Court infringed Article 1, Article 6(1) and Article 14 ECHR. In its view, the manner in which the General Court interpreted Article 45 of the Statute of the Court of Justice of the European Union hinders access to the EU Courts as far as parties residing or established at a considerable distance from the location of the EU Courts are concerned. The restrictive reading of that provision employed by the General Court also constitutes discrimination between parties to proceedings depending on their place of residence.

84.      As its primary contention the Commission submits that this ground of appeal is inadmissible. That is because RF refers to rights laid down in the ECHR and not the Charter of Fundamental Rights of the European Union (‘the Charter’) and because the arguments of RF are unclear. In any event, the Commission considers that this ground of appeal is unfounded.

85.      The appellant has in its rejoinder clarified that this ground alleges the breach of the preamble as well as Articles 20, 21 and 47 of the Charter.

86.      That does not, however, suffice. An appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. (46)

87.      I interpret this ground as mainly alleging that the General Court’s reading of Article 45 of the Statute of the Court of Justice of the European Union discriminates against a party like RF, a party not established in the vicinity of the EU Courts. That is because according to the order under appeal, a party wishing to employ the option laid down in Article 73(3) of the Rules of Procedure of the General Court, that is to say, to use a combination of fax and post to communicate procedural documents to the General Court, cannot rely on an unusual delay in postal shipping to justify non-compliance with the prescribed time limit. To be sure to avoid time-bar RF cannot therefore use the option set out in Article 73(3) of the Rules of Procedure. Instead, it must send the application by post well before the expiry of the prescribed time limit of two months (in addition to the extension of 10 days on account of distance provided for in Article 60 of the Rules of Procedure of the General Court).

88.      I have some sympathy for RF’s argument. Nevertheless, I cannot ignore the fact that this ground is not sufficiently developed in the application and is expressed in general terms without coherently setting out the legal arguments that constitute the basis for the claims made. Quite simply, the arguments lack rigour.

89.      Given that it is not for this Court to develop or supplement the appellant’s arguments so that judgment on the merits is possible, I would advise the Court to declare this ground inadmissible. In particular, RF has failed to identify a legally pertinent comparator as concerns the discrimination allegedly inherent in the order under appeal, and to explain how that appeal could be interpreted as entailing a breach of a right to access to courts within the meaning of Article 47 of the Charter.

90.      Accordingly, the fourth ground of appeal should be dismissed as inadmissible.

B.      Consequences of the assessment

91.      I have concluded that the General Court applied erroneous criteria in finding that the existence of unforeseeable circumstances or of force majeure within the meaning of Article 45 of the Statute of the Court of Justice of the European Union had not been established. Nevertheless, for the reasons explained above, I am of the opinion that that legal error does not give cause to set aside the order under appeal.

92.      The appeal should therefore be dismissed in its entirety.

V.      Costs

93.      Under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the pleadings of the successful party.

94.      If the Court agrees with my assessment of the appeal, then, in accordance with Articles 137, 138 and 184 of the Rules of Procedure, RF should be ordered to pay the costs of the present proceedings, both at first instance and on appeal.

VI.    Conclusion

95.      In the light of those considerations, I propose that the Court should:

–        dismiss the appeal;

–        order RF to pay the costs.

1      Original language: English.

2      Order of 13 September 2017, RF v CommissionRF v CommissionRF v Commission, T‑880/16, not published, EU:T:2017:647.

3      OJ 2015 L 105, p. 1.

4      OJ 2015 L 152, p. 1.

5      OJ 2014 L 31, p. 1.

6      Paragraphs 6 to 11 of the order under appeal.

7      Paragraphs 12 and 14 of the order under appeal.

8      Paragraphs 15 to 17 of the order under appeal.

9      Paragraphs 18 and 19 of the order under appeal.

10      Paragraph 20 of the order under appeal.

11      Order of the Court of 30 September 2014, Faktor B. i W. Gęsina v CommissionFaktor B. i W. Gęsina v CommissionFaktor B. i W. Gęsina v CommissionFaktor B. i W. Gęsina v CommissionFaktor B. i W. Gęsina v CommissionFaktor B. i W. Gęsina v CommissionFaktor B. i W. Gęsina v Commission, C‑138/14 P, not published, EU:C:2014:2256.

12      Idem., paragraphs 20 to 25.

13      Paragraphs 22 to 27 of the order under appeal.

14      That provision states: ‘Where it is clear that the General Court has no jurisdiction to hear and determine an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the General Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.’

15      See, for example, judgments of 11 July 1968, Schwarzwaldmilch, 4/68, EU:C:1968:41, p. 385; of 17 December 1970, Internationale HandelsgesellschaftInternationale Handelsgesellschaft, 11/70, EU:C:1970:114, paragraph 24; and of 30 January 1974, Kampffmeyer, 158/73, EU:C:1974:8, paragraph 8.

16      Judgment of 9 February 1984, Acciaierie e Ferriere Busseni v CommissionAcciaierie e Ferriere Busseni v CommissionAcciaierie e Ferriere Busseni v CommissionAcciaierie e Ferriere Busseni v CommissionAcciaierie e Ferriere Busseni v CommissionAcciaierie e Ferriere Busseni v CommissionAcciaierie e Ferriere Busseni v Commission, 284/82, EU:C:1984:47.

17      Judgments of 9 February 1984, Acciaierie e Ferriere Busseni v CommissionAcciaierie e Ferriere Busseni v CommissionAcciaierie e Ferriere Busseni v CommissionAcciaierie e Ferriere Busseni v CommissionAcciaierie e Ferriere Busseni v CommissionAcciaierie e Ferriere Busseni v CommissionAcciaierie e Ferriere Busseni v Commission, 284/82, EU:C:1984:47, paragraph 11; of 30 May 1984, Ferriera Vittoria v CommissionFerriera Vittoria v CommissionFerriera Vittoria v CommissionFerriera Vittoria v Commission, 224/83, EU:C:1984:208, paragraph 13; and of 12 July 1984, Ferriera Valsabbia v CommissionFerriera Valsabbia v CommissionFerriera Valsabbia v CommissionFerriera Valsabbia v CommissionFerriera Valsabbia v Commission, 209/83, EU:C:1984:274, paragraph 21.

18      Judgment of 15 December 1994, Bayer v CommissionBayer v CommissionBayer v Commission, C‑195/91 P, EU:C:1994:412.

19      This was already argued by Advocate General Capotorti with regard to the concept of force majeure. See Opinions of Advocate General Capotorti in Milch-, Fett- und EierkontorMilch-, Fett- und EierkontorMilch-, Fett- und Eierkontor, 42/79, not published, EU:C:1979:259, p. 3723, and in Joined Cases Ferriera Valsabbia and Others v CommissionFerriera Valsabbia and Others v CommissionFerriera Valsabbia and Others v CommissionFerriera Valsabbia and Others v CommissionFerriera Valsabbia and Others v CommissionFerriera Valsabbia and Others v Commission, 154/78, 205/78, 206/78, 226/78 to 228/78, 263/78, 264/78, 31/79, 39/79, 83/79 and 85/79, EU:C:1979:275, p. 1067.

20      In particular, judgments of 15 December 1994, Bayer v CommissionBayer v CommissionBayer v Commission, C‑195/91 P, EU:C:1994:412, paragraph 32, and of 22 September 2011, and Bell & Ross v OHIMBell & Ross v OHIMBell & Ross v OHIM, C‑426/10 P, EU:C:2011:612, paragraph 48. See also judgment of 23 April 2013, Gbagbo and Others v CouncilGbagbo and Others v CouncilGbagbo and Others v Council, C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraph 72 and order of 8 November 2007, Belgium v CommissionBelgium v CommissionBelgium v Commission, C‑242/07 P, EU:C:2007:672, paragraph 17.

21      It seems that the Court classifies a war as force majeure, rather than an unforeseeable circumstance. See to that effect judgment of 23 April 2013,Gbagbo and Others v Council, C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraph 72.

22      Judgment of 23 April 2013, Gbagbo and Others v CouncilGbagbo and Others v CouncilGbagbo and Others v Council, C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraph 71 and the case-law cited. See also order of 7 May 1998, Ireland v CommissionIreland v CommissionIreland v Commission, C‑239/97, EU:C:1998:213, paragraph 7 and the case-law cited.

23      Judgments of 14 December 2016, SV Capital v EBASV Capital v EBASV Capital v EBA, C‑577/15 P, EU:C:2016:947, paragraph 56 and the case-law cited and of 22 September 2011, Bell & Ross v OHIMBell & Ross v OHIMBell & Ross v OHIM, C‑426/10 P, EU:C:2011:612, paragraph 43 and the case-law cited.

24      Paragraphs 25 to 27 of the order under appeal.

25      Paragraph 19 of the order under appeal.

26      Paragraph 21 of the order under appeal.

27      Judgment of 15 December 1994, Bayer v CommissionBayer v CommissionBayer v Commission, C‑195/91 P, EU:C:1994:412, paragraph 32.

28      Order of the Court of 30 September 2014, Faktor B. i W. Gęsina v CommissionFaktor B. i W. Gęsina v CommissionFaktor B. i W. Gęsina v CommissionFaktor B. i W. Gęsina v CommissionFaktor B. i W. Gęsina v CommissionFaktor B. i W. Gęsina v CommissionFaktor B. i W. Gęsina v Commission, C‑138/14 P, not published, EU:C:2014:2256.

29      Idem., paragraphs 19 and 20.

30      Idem., paragraphs 10 and 11.

31      See Article 74 of the Rules of Procedure of the General Court and Decision of the General Court of 14 September 2011 on the lodging and service of procedural documents by means of e-Curia (OJ 2011 C 289, p. 9). Since1 December 2018, the use of e-Curia is mandatory in proceedings before the General Court.

32      See, in particular, paragraphs 79 to 81 of the Practice Rules of the General Court and paragraphs 42 and 43 of the Practice directions of the Court.

33      For documents submitted by post only, the Court recommends the use of express delivery or registered mail. No such recommendation is made for parties wishing to use fax or e-mail in accordance with Article 73(3) of the Rules of Procedure of the General Court.

34      It can be seen from the Annex to Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 L 15, p. 14) that 97 % of cross-border mail should be delivered within five working days of deposit.

35      Cf. paragraph 27 of the order under appeal.

36      See in a similar vein orders of 7 May 1998, Ireland v CommissionIreland v CommissionIreland v Commission, C‑239/97, EU:C:1998:213, paragraph 9 and of 18 January 2005, Zuazaga Meabe v OHIMZuazaga Meabe v OHIMZuazaga Meabe v OHIMZuazaga Meabe v OHIMZuazaga Meabe v OHIM, C‑325/03 P, EU:C:2005:28, paragraph 26.

37      See, in that vein, judgments of 14 January 2015, Abdulrahim v Council and CommissionAbdulrahim v Council and CommissionAbdulrahim v Council and Commission, T‑127/09 RENV, EU:T:2015:4, paragraph 47, and of 21 June 2017, City Train v EUIPO (CityTrain)City Train v EUIPO (CityTrain)City Train v EUIPO (CityTrain)City Train v EUIPO (CityTrain)City Train v EUIPO (CityTrain), T‑699/15, not published, EU:T:2017:409, paragraph 15.

38      Where e-Curia is used, a confirmation of receipt is received by the sender instantly where the documents have been duly transmitted to the EU Courts.

39      In particular, judgments of 15 December 1994, Bayer v CommissionBayer v CommissionBayer v Commission, C‑195/91 P, EU:C:1994:412, paragraph 32, and of 22 September 2011, Bell & Ross v OHIMBell & Ross v OHIMBell & Ross v OHIM, C‑426/10 P, EU:C:2011:612, paragraph 48. See also order of 8 November 2007, Belgium v CommissionBelgium v CommissionBelgium v Commission, C‑242/07 P, EU:C:2007:672, paragraph 17.

40      For a different view, see judgment of 14 January 2015, Abdulrahim v Council and CommissionAbdulrahim v Council and CommissionAbdulrahim v Council and Commission, T‑127/09 RENV, EU:T:2015:4, paragraph 50.

41      See similarly judgment of 14 January 2015, Abdulrahim v Council and CommissionAbdulrahim v Council and CommissionAbdulrahim v Council and Commission, T‑127/09 RENV, EU:T:2015:4, paragraph 52.

42      See, among many, judgment of 26 January 2017, Zucchetti Rubinetteria v CommissionZucchetti Rubinetteria v CommissionZucchetti Rubinetteria v CommissionZucchetti Rubinetteria v CommissionZucchetti Rubinetteria v Commission, C‑618/13 P, EU:C:2017:48, paragraph 49 and the case-law cited.

43      Paragraph 26 of the order under appeal.

44      See, inter alia, judgment of 25 July 2018, Commission v Spain and Others, C‑128/16 P, EU:C:2018:591, paragraph 31 and the case-law cited.

45      See, for example, judgment of 6 September 2018, Klein v CommissionKlein v CommissionKlein v Commission, C‑346/17 P, EU:C:2018:679, paragraphs 124 to 126 and the case-law cited.

46      See, inter alia, judgment of 20 September 2018, Agria Polska and Others v Commission, C‑373/17 P, EU:C:2018:756, paragraph 33 and the case-law cited.

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