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

ORDER OF THE GENERAL COURT (Fourth Chamber)

17 December 2020 (*)

(Action for annulment – EAGF and EAFRD – Time limit for bringing an action – Starting point – Notification and publication – No excusable error – Out of time – Inadmissibility)

In Case T‑37/20,

United Kingdom of Great Britain and Northern Ireland, represented by S. Brandon, acting as Agent, and by T. Buley, Barrister,

applicant,

v

European Commission, represented by J. Aquilina and A. Sauka, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for annulment of Commission Implementing Decision (EU) 2019/1835 of 30 October 2019 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 2019 L 279, p. 98), in so far as it concerns certain expenditure incurred by the United Kingdom,

THE GENERAL COURT (Fourth Chamber),

composed of S. Gervasoni, President, P. Nihoul and J. Martín y Pérez de Nanclares (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

 Background to the dispute, procedure and forms of order sought

1        By Implementing Decision (EU) 2019/1835 of 30 October 2019 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 2019 L 279, p. 98), the European Commission excluded from European Union financing, inter alia, certain expenditure incurred by the United Kingdom of Great Britain and Northern Ireland on the ground of ‘weakness in the definition of Active Farmer-connected companies’.

2        By application lodged at the Court Registry on 22 January 2020, the United Kingdom brought the present action for annulment of Implementing Decision 2019/1835 in so far as it excludes that expenditure from European Union financing (‘the contested decision’).

3        By separate document lodged at the Court Registry on 19 February 2020, the Commission raised a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court, contending that the action is out of time. The United Kingdom lodged its observations on that plea, after the time limit had been extended by the Court, on 26 August 2020.

4        By document lodged at the Court Registry on 15 April 2020, the United Kingdom requested that the present proceedings be stayed pending the adoption of several Commission decisions applying the provision relevant for the purposes of the resolution of the present dispute, namely Article 9(2) of Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009 (OJ 2013 L 347, p. 608). The Commission opposed that request for a stay of proceedings and the President of the Fourth Chamber of the General Court rejected it by decision of 2 June 2020.

5        By documents lodged at the Court Registry on 27 April and 14 May 2020, respectively, the Czech Republic and the French Republic applied for leave to intervene in the present proceedings in support of the form of order sought by the United Kingdom.

6        The United Kingdom claims that the Court should:

–        reject the plea of inadmissibility raised by the Commission;

–        annul the contested decision;

–        order the Commission to pay the costs.

7        The Commission contends that the Court should:

–        dismiss the action as inadmissible;

–        order the United Kingdom to pay the costs.

 Law

8        Under Article 130(1) and (7) of the Rules of Procedure, if the defendant submits an application to that effect, the Court may give a decision on inadmissibility without going to the substance of the case. In the present case, as the Commission has applied for a decision on inadmissibility, the Court, considering that it has sufficient information available to it from the documents in the file, has decided to rule on that application without taking further steps in the proceedings.

9        Under the sixth paragraph of Article 263 TFEU, an action for annulment must be brought within two months of the publication of the contested measure, or of its notification to the applicant, 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, in accordance with Article 60 of the Rules of Procedure, that time limit is to be extended on account of distance by a single period of 10 days.

10      According to settled case-law, the time limit prescribed for bringing actions is a matter of public policy, since it was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice, and the EU judicature must ascertain of its own motion whether that time limit has been observed (see, to that effect, judgments of 23 January 1997, Coen, C‑246/95, EU:C:1997:33, paragraph 21, and of 18 September 1997, Mutual Aid Administration Services v Commission, T‑121/96 and T‑151/96, EU:T:1997:132, paragraphs 38 and 39).

11      In the present case, it is apparent from the documents in the file and it is not disputed by the United Kingdom that the contested decision was notified to it on 30 October 2019 and published in the Official Journal on 31 October 2019.

12      Nor is it disputed by the United Kingdom that it should have brought its action within the time limit of two months, extended on account of distance, which began to run on the date of notification of the contested decision, that is to say, before 9 January 2020 at midnight, and not within the time limit that began to run on the date of its publication and expired on 24 January 2020, taking account of the additional period of 14 days applied to measures published in the Official Journal pursuant to Article 59 of the Rules of Procedure.

13      It follows from the wording of Article 263 TFEU, set out in paragraph 9 above, and in particular from the expression ‘as the case may be’ that the starting point of the period prescribed for instituting proceedings is determined on the basis of the situation in question and that that period begins to run, inter alia, from the publication of the contested measure or from the notification of that measure, but it does not follow that the criterion of the date of publication of the measure in question, as the starting point of the period prescribed for instituting proceedings, takes precedence over that of the date of notification of that measure (see order of 19 April 2016, Portugal v Commission, T‑550/15, not published, EU:T:2016:237, paragraph 31 and the case-law cited; see also, to that effect, judgment of 17 May 2017, Portugal v Commission, C‑337/16 P, EU:C:2017:381, paragraph 38).

14      In the present case, since the contested decision is addressed to the United Kingdom and is therefore of individual relevance, and took effect with regard to the United Kingdom, pursuant to the third subparagraph of Article 297(2) TFEU, upon its notification, which enabled the United Kingdom to become acquainted with its content and the grounds on which it is based, the period prescribed for instituting proceedings began to run from that notification (see, to that effect, judgment of 17 May 2017, Portugal v Commission, C‑337/16 P, EU:C:2017:381, paragraph 36; orders of 23 November 2015, Slovenia v Commission, T‑118/15, not published, EU:T:2015:912, paragraph 24; of 19 April 2016, Portugal v Commission, T‑550/15, not published, EU:T:2016:237, paragraph 27; and of 30 April 2019, Romania v Commission, T‑530/18, EU:T:2019:269, paragraphs 28 to 32).

15      It follows that the present action should have been brought by 9 January at the latest, which the United Kingdom, moreover, acknowledges. The action was brought on 22 January 2020 and is therefore out of time.

16      The United Kingdom nevertheless invokes an excusable error which, in its view, justifies a derogation in the present case from the provisions on time limits for bringing actions. It thus submits that, although it had acted in good faith and with due diligence, the fact that the Commission both notified the contested decision and published it in the Official Journal had created in its mind a pardonable confusion as regards the starting point of the time limit for bringing an action.

17      Admittedly, it is apparent from the case-law that an excusable error may, in exceptional circumstances, have the effect of not causing the applicant to be out of time (orders of 26 October 2000, Austria v Commission, C‑165/99, not published, EU:C:2000:587, paragraph 17, and of 13 January 2009, SGAE v Commission, T‑456/08, not published, EU:T:2009:1, paragraph 17).

18      Nonetheless, in the context of the European Union’s rules on time limits for instituting proceedings, the concept of excusable error justifying a derogation from those rules can concern only exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of the party acting in good faith and displaying all the diligence required of a normally well-informed person (order of 16 November 2010, Internationale Fruchtimport Gesellschaft Weichert v Commission, C‑73/10 P, EU:C:2010:684, paragraph 42, and judgment of 27 September 2007, Pelle and Konrad v Council and Commission, T‑8/95 and T‑9/95, EU:T:2007:298, paragraph 93).

19      In the present case, first, the Commission’s conduct cannot be regarded as having been such as to give rise to confusion as regards the starting point of the time limit for bringing an action against the contested decision. It notified the contested decision to the United Kingdom in accordance with the third subparagraph of Article 297(2) TFEU and also published it in the Official Journal (see, to that effect, orders of 23 November 2015, Slovenia v Commission, T‑118/15, not published, EU:T:2015:912, paragraph 26; of 19 April 2016, Portugal v Commission, T‑550/15, not published, EU:T:2016:237, paragraph 34; and of 30 April 2019, Romania v Commission, T‑530/18, EU:T:2019:269, paragraph 42). The United Kingdom has, moreover, acknowledged that no criticism was to be made of the Commission for that practice of notifying and publishing a single measure. Furthermore, it should be noted that the rules on the time limits applicable in the present case, based on the sixth paragraph of Article 263 and the third subparagraph of Article 297(2) TFEU, are clear and do not give rise to doubts as regards their interpretation (see, to that effect, judgment of 17 May 2017, Portugal v Commission, C‑337/16 P, EU:C:2017:381, paragraphs 42 and 43, and order of 23 November 2015, Slovenia v Commission, T‑118/15, not published, EU:T:2015:912, paragraph 33).

20      Secondly, the view cannot be taken that the United Kingdom displayed the diligence required. It itself states that there was a ‘miscommunication … between the UK’s Permanent Representation and the … authorities’ responsible for reviewing the legality of the contested decision (in particular the Secretary of State for the Environment, Food and Rural Affairs) and thus acknowledges the existence of a deficiency in the functioning of its internal organisation which is considered not to allow the conclusion that an error made is excusable (order of 26 October 2000, Austria v Commission, C‑165/99, not published, EU:C:2000:587, paragraph 18).

21      Lastly, as regards the arguments based on the principle of legal certainty put forward by the United Kingdom, it should be borne in mind that the periods within which legal proceedings must be brought are intended to ensure legal certainty by preventing EU measures which produce legal effects from being called in question indefinitely (judgment of 30 January 1997, Wiljo, C‑178/95, EU:C:1997:46, paragraph 19, and order of 15 November 2012, Städter v ECB, C‑102/12 P, not published, EU:C:2012:723, paragraph 12) and that the strict application of the rules laying down those periods is specifically intended to ensure that legal certainty (see order of 14 January 2010, SGAE v Commission, C‑112/09 P, EU:C:2010:16, paragraph 20 and the case-law cited).

22      Even if, as the United Kingdom submits, the contested decision could, in the present case, have been challenged by third parties within a time limit expiring at a later stage and triggered by its publication (see paragraphs 11 and 12 above), it cannot be inferred from that possibility, relied on by the United Kingdom to demonstrate that the present action does not undermine the stability of legal positions, that that action should be declared admissible. The United Kingdom, which became aware of the contested decision upon its notification and participated in the procedure that led to its adoption, would thus benefit from an extended time limit for bringing an action in relation to third parties which became aware of it only upon its publication in the Official Journal, even though the time limits for bringing actions have been established in order to avoid any discrimination in the administration of justice (see paragraph 10 above). Most importantly, that argument put forward by the United Kingdom calls in question the distinction made by the rules on time limits between the three starting points of the time limit for instituting proceedings and thus the strict interpretation of those rules, which specifically serves the requirement of legal certainty (see, to that effect, judgment of 10 September 2020, Romania v Commission, C‑498/19 P, not published, EU:C:2020:686, paragraph 36).

23      Furthermore, the importance of the legal issue raised by the action and the interest in a ruling being given on it for the future, also invoked by the United Kingdom, are not capable of justifying a derogation from mandatory rules laying down time limits for bringing proceedings, rules which are intended to ensure legal certainty (see, to that effect, order of 11 June 2020, GMPO v Commission, C‑575/19 P, not published, EU:C:2020:448, paragraphs 38 and 41), in particular as such concerns are not considered to allow for an action to be brought (see, to that effect, order of 22 November 2017, Digital Rights Ireland v Commission, T‑670/16, not published, EU:T:2017:838, paragraph 50).

24      Consequently, there was no excusable error on the part of the United Kingdom in the present case.

25      It follows from all of the foregoing that the present action must be dismissed as inadmissible.

26      In those circumstances, there is no longer any need to adjudicate on the applications to intervene of the Czech Republic and the French Republic.

 Costs

27      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the United Kingdom has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

28      Furthermore, pursuant to Article 144(10) of the Rules of Procedure, the Czech Republic and the French Republic must be ordered to bear their own costs relating to their applications to intervene.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby orders:

1.      The action is dismissed.

2.      There is no longer any need to adjudicate on the applications to intervene of the Czech Republic and the French Republic.

3.      The United Kingdom of Great Britain and Northern Ireland shall bear its own costs and pay those incurred by the European Commission.

4.      The Czech Republic and the French Republic shall bear their own costs relating to their applications to intervene.

Luxembourg, 17 December 2020.

*      Language of the case: English.

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