CELEX: 62017CJ0660
Appeal
Action for annulment
Sending of the application by fax
Original of the application lodged out of time at the Registry of the General Court
Postal delay
Concept of ‘force majeure or unforeseeable circumstances’

By its appeal, RF seeks to have set aside the order of the General Court of the European Union of 13 September 2017,
RF
v
Commission
(T‑880/16, not published, ‘the order under appeal’,
EU:T:2017:647
), by which the General Court dismissed as inadmissible its action for annulment of Commission Decision C(2016) 5925 final of 15 September 2016 rejecting its complaint in case COMP AT.40251 — Rail transport, freight forwarding (‘the decision at issue’).
Legal context
Statute of the Court of Justice of the European Union
Under Title III, entitled ‘Procedure before the Court of Justice’, Article 45 of the Statute of the Court of Justice of the European Union 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
.’
Under Title IV of that Statute, concerning the General Court, the first and second paragraphs of Article 53 provide:
‘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. ...’
Rules of Procedure of the General Court
Title III, entitled ‘Direct actions’, of the Rules of Procedure of the General Court of 4 March 2015 (
OJ 2015 L 105, p. 1
), which entered into force on 1 July 2015, contains Chapter 1 which is entitled ‘General provisions’. That chapter is divided into five sections, the fourth of which, concerning time limits, comprises Articles 58 to 62 of those rules.
Article 58 of the Rules of Procedure of the General Court, which concerns the calculation of time limits, states:
‘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 … months … shall end with the expiry of whichever day in the last … month … 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 …, 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;
…’
Article 60 of those rules, entitled ‘Extension on account of distance’, provides:
‘The procedural time limits shall be extended on account of distance by a single period of 10 days.’
Article 73 of those rules, entitled ‘Lodging at the Registry of a procedural document in paper form’, provided, in paragraph 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 lodgement 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.’
Article 73 was deleted in the amendments to the Rules of Procedure of the General Court of 11 July 2018 (
OJ 2018 L 240, p. 68
), by which the use of the computer application ‘e-Curia’ was made mandatory for the lodging of procedural documents.
In accordance with Article 126 of the Rules of Procedure of the General Court, where the action is manifestly inadmissible, the General Court may, at any time, decide to give a decision by reasoned order without taking further steps in the proceedings.
Practice Rules for the Implementation of the Rules of Procedure of the General Court
Under part III.A.2, which concerns the lodging of procedural documents and annexes by fax, points 79 to 81 of the Practice Rules for the Implementation of the Rules of Procedure of the General Court (
OJ 2015 L 152, p. 1
) provided:
‘79.
The date on which a procedural document is lodged by fax shall be deemed to be the date of lodgement 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.’
The background to the dispute and the order under appeal
Since the action brought by RF is an action for annulment, it was required to be instituted, in accordance with the sixth paragraph of Article 263 TFEU, within two months of the publication of the decision against which the action was directed, the notification of that decision or the day on which it came to the knowledge of RF, as the case may be.
In the present case, the decision at issue was notified to RF on 19 September 2016. The period of two months for bringing proceedings, extended on account of distance by the period of 10 days provided for in Article 60 of the Rules of Procedure of the General Court, therefore expired at midnight on 29 November 2016.
On 18 November 2016, RF sent to the Registry of the General Court, by fax, the application for annulment. However, the signed original of that application was not received at the Registry of the General Court until 5 December 2016, that is to say, after the expiry of the 10-day period which ran from the receipt of the fax, as provided for in Article 73(3) of the Rules of Procedure of the General Court.
By letters of 20 December 2016, 7 March 2017 and 19 June 2017, the Registry of the General Court requested information from the appellant regarding the date on which the decision at issue had been sent to it, and asked it to explain why the application had been lodged out of time.
By letters of 28 December 2016, 28 April 2017 and 27 June 2017, the appellant provided the requested explanations.
In particular, in its letter of 28 December 2016, RF submitted that the application in paper form had been sent on the same day as it had been transmitted to the General Court by fax and, therefore, as soon as possible in relation to the latter date. According to the appellant, it was reasonable to consider that the application in paper form would reach the Registry of the General Court before the 10-day period expired. The fact that the General Court did not receive it until 5 December 2016 had to be regarded as an exceptional delay, falling within the scope of the second paragraph of Article 45, read in conjunction with the first paragraph of Article 53, of the Statute of the Court of Justice of the European Union. That was said to be confirmed by the fact that the 10-day period was also considered to be reasonable by the Rules of Procedure of the General Court and by the Practice Rules for the Implementation of the Rules of Procedure (point 80). RF concluded that the application had to be regarded as having been submitted within the time limit.
In its letter of 27 June 2017, RF attached documentation attesting to the fact that the parcel containing the signed original of the application had been left with Poczta Polska, the main postal operator in Poland, on 18 November 2016. According to RF that fact demonstrates that it had exercised the diligence required to lodge the application in paper form within the 10-day period following its transmission by fax. The fact that the parcel was still in Poland on 2 December 2016 and was not delivered to the Registry of the General Court until 5 December 2016, thus 17 days after it was sent by fax, cannot be attributed to it.
In that letter, RF also pointed out that Poczta Polska had been entrusted with sending the application in paper form on account of the guarantees offered by that public operator. RF also noted that, from the moment it sent the parcel containing the application, the consignment was completely out of its control.
After having recalled, in paragraph 15 of the order under appeal, that time limits for bringing proceedings covered by Article 263 TFEU are mandatory, the General Court stated, in paragraph 16 of that order, that no derogation could be made from those time limits save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to
force majeure
.
In paragraphs 17 and 18 of the order under appeal, the General Court noted that, according to the case-law of the Court of Justice, the concepts of ‘
force majeure
’ or ‘unforeseeable circumstances’ contain an objective element relating to abnormal circumstances unconnected with the appellant and a subjective element involving the obligation, on its part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. In particular, the appellant 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. Thus, the concepts of ‘
force majeure
’ and ‘unforeseeable circumstances’ would 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.
The General Court pointed out, in paragraph 19 of the order under appeal, that, to be classified as ‘unforeseeable circumstances’ or ‘
force majeure
’, an event must be unavoidable, so that that event is the decisive reason for being out of time.
In paragraph 20 of the order under appeal, the General Court took the view that the fact that Article 73(3) of its Rules of Procedure provides for a time limit of 10 days does not mean that the shipping of a parcel containing the signed original of the application which takes longer than that 10-day time limit constitutes an unforeseeable circumstance or
force majeure
. In paragraph 21 of that order, the General Court noted that the slowness of postal shipping alone – unless there are other particular circumstances involved, such as an administrative breakdown, a natural disaster or a strike – cannot, in itself, constitute an unforeseeable circumstance or
force majeure
which the appellant was unable to guard against.
In paragraph 26 of the order under appeal, the General Court found that the appellant had merely stated, in response to a request for information by the General Court, first, that it had sent the parcel containing the signed original of the application by registered letter with a form for acknowledgement of receipt and, secondly, that, given its experience, it had considered that, normally, the document sent would have reached the Registry of the General Court before the 10-day period expired. The General Court held that, although it was for the appellant to pay close attention to the procedure for shipping the parcel, it had not adduced any evidence in that regard.
Moreover, the General Court stated, in paragraph 27 of that order, that RF had not invoked any other particular circumstances, such as an administrative breakdown, a natural disaster or a strike.
In paragraph 28 of the order under appeal, the General Court therefore found that the appellant had not adduced proof, as was incumbent upon it, that the time it took to ship the parcel had been the decisive reason for being out of time, in the sense of its being an unavoidable event which the appellant was unable to guard against.
The General Court concluded, in paragraph 29 of that order, that RF had failed to establish the existence of unforeseeable circumstances or of
force majeure
in the present case, and, therefore, dismissed the action for annulment as manifestly inadmissible.
Forms of order sought by the parties before the Court of Justice
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 case and give a ruling on the merits, subject to appeal;
–
if the Court were to find that the conditions for giving final judgment in the matter are satisfied, set aside the order under appeal and take account of the forms of order sought at first instance in their entirety;
–
order the European Commission to pay the costs.
RF also requests that certain documents be allowed as new evidence.
The Commission contends that the Court should:
–
dismiss the appeal;
–
order RF to pay the costs.
The request for the admission of new evidence
The request for the admission of new evidence must be dismissed. Pursuant to the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, appeals lie on points of law only, to the exclusion of any assessment of the facts, with the result that new evidence is inadmissible at the appeal stage (see, to that effect, judgment of 14 September 1995, Henrichs v Commission,
C‑396/93 P
,
EU:C:1995:280
, paragraph
, and order of the President of the Court of 25 January 2008, Provincia di Ascoli Piceno and Comune di Monte Urano v Apache Footwear and Others,
C‑464/07 P(I)
, not published,
EU:C:2008:49
, paragraph
).
The appeal
RF invokes four grounds in support of its appeal.
The first and second grounds of appeal
Arguments of the parties
By its first ground of appeal, alleging infringement of Articles 45 and 53 of the Statute of the Court of Justice of the European Union, RF complains that, in paragraphs 17 to 22 of the order under appeal, the General Court incorrectly treated the concepts of ‘
force majeure
’ and ‘unforeseeable circumstances’ in the same way. Referring to paragraph 22 of the order of 30 September 2014, Faktor B. i W. Gęsina v Commission (
C‑138/14 P
, not published,
EU:C:2014:2256
), RF recalls that the 10-day time limit on account of distance provided for in the Rules of Procedure of the General Court corresponds to the period of time within which any letter, coming from anywhere within the European Union, should normally be able to reach the Registry of the General Court, although it cannot be ruled out that that period of time may be exceeded. It concludes from this that where that time limit is exceeded on account of reasons which are attributable to the postal operator, this undeniably falls within the scope of unforeseeable circumstances.
That argument is said to be confirmed by point 80 of the Practice Rules for the Implementation of the Rules of Procedure of the General Court, according to which the original document bearing the signature of the representative must be sent without delay, immediately after its dispatch by fax.
Lastly, RF submits that the General Court’s interpretation of ‘unforeseeable circumstances’ in the order under appeal gives rise to discrimination since a party domiciled in Poland is unable to benefit from the legislation that allows parties residing in locations that are geographically remote from that of the General Court to send an application by fax. For those parties, since there is a risk that the signed original will not reach the General Court until after the expiry of the 10-day period, RF claims that it is of no use for them to send the application by fax. They cannot be required to lodge their application in person at the Registry of the General Court.
By its second ground of appeal, RF takes the view that the General Court infringed Article 126 of its Rules of Procedure in declaring that the action was manifestly inadmissible.
The Commission disputes the merits of those grounds of appeal.
Findings of the Court
It must be held that, according to settled case-law on compliance with time limits for bringing proceedings, the concepts of ‘unforeseeable circumstances’ and ‘
force majeure
’ contain the same elements and have the same legal consequences. The General Court did not err in law in recalling, in paragraph 17 of the order under appeal, that those concepts contain an objective element relating to abnormal circumstances unconnected with the appellant and a subjective element involving the obligation, on its part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices (judgment of 15 December 1994, Bayer v Commission,
C‑195/91 P
,
EU:C:1994:412
, paragraph
; orders of 8 November 2007, Belgium v Commission,
C‑242/07 P
,
EU:C:2007:672
, paragraph
; and of 30 September 2014, Faktor B. i W. Gęsina v Commission,
C‑138/14 P
, not published,
EU:C:2014:2256
, paragraph
).
The Court has made it clear that the appellant 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 (judgment of 15 December 1994, Bayer v Commission,
C‑195/91 P
,
EU:C:1994:412
, paragraph
; orders of 8 November 2007, Belgium v Commission,
C‑242/07 P
,
EU:C:2007:672
, paragraph
, and of 30 September 2014, Faktor B. i W. Gęsina v Commission,
C‑138/14 P
, not published,
EU:C:2014:2256
, paragraph
), and that the concepts of ‘unforeseeable circumstances’ and ‘
force majeure
’ do 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 (see, to that effect, judgment of 12 July 1984, Ferriera Valsabbia v Commission,
209/83
,
EU:C:1984:274
, paragraph
, and order of 30 September 2014, Faktor B. i W. Gęsina v Commission,
C‑138/14 P
, not published,
EU:C:2014:2256
, paragraph
).
However, in the present case, the appellant merely claims that the 10-day time limit on account of distance provided for in the Rules of Procedure of the General Court was exceeded for reasons which are imputable to the postal operator without demonstrating, as the Advocate General observed in point 71 of his Opinion, that it had taken all appropriate steps to guard against such an event, since sending the signed original immediately after the transmission of the copy by fax is only one of the steps that must be taken in that regard.
This conclusion is supported by the Court of Justice’s case-law, according to which the fact that the Rules of Procedure of the General Court provide for a single period of 10 days to send an original document after it has been sent by means of electronic communication does not mean that postal shipping which takes longer than the period of 10 days constitutes an unforeseeable circumstance or
force majeure
. Like the single period on account of distance provided for in Article 60 of the Rules of Procedure of the General Court, the time limit of 10 days laid down in Article 73(3) of the Rules of Procedure of the General Court enabled account to be taken of the shorter or greater distances to be covered and the variable speed of postal operators. That time limit therefore corresponds not to the maximum time guaranteed for the postal shipping, but to a period of time within which any letter, coming from anywhere within the European Union, should normally be able to reach the Registry of the General Court, although it cannot be ruled out that that period of time may be exceeded (see, by analogy, order of 30 September 2014, Faktor B. i W. Gęsina v Commission,
C‑138/14 P
, not published,
EU:C:2014:2256
, paragraph
).
Contrary to the appellant’s submission, a postal delivery period that is greater than 10 days is not an unforeseeable event, but is a possibility that may become reality despite the indications given by postal operators.
Thus, the slowness of postal shipping alone cannot constitute an unforeseeable circumstance or
force majeure
, which the appellant was unable to guard against, unless there are other particular circumstances involved (see, to that effect, order of 30 September 2014, Faktor B. i W. Gęsina v Commission,
C‑138/14 P
, not published,
EU:C:2014:2256
, paragraph
).
For the same reasons, it cannot be inferred from point 80 of the Practice Rules for the Implementation of the Rules of Procedure of the General Court that where the original document bearing the signature of the representative has been sent without delay, immediately after its dispatch by fax, any receipt of that document beyond the 10-day period must be considered to be covered by unforeseeable circumstances or
force majeure
. Those practice rules, which contain explanations and advice for the parties in order to encourage them to be attentive in complying with deadlines, cannot, in any case, conflict with Article 45 of the Statute of the Court of Justice of the European Union, as interpreted by the case-law of the Court.
As regards the existence of alleged discrimination resulting from the case-law on ‘unforeseeable circumstances’, the Court has repeatedly held that no derogation from the application of the EU rules on procedural time limits may be made save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to
force majeure
, in accordance with the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, since the strict application of those rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (order of 8 November 2007, Belgium v Commission,
C‑242/07 P
,
EU:C:2007:672
, paragraph
and the case-law cited).
Not acknowledging that slow postal services may in themselves constitute an unforeseeable circumstance or
force majeure
is a rule that applies to all individuals, irrespective of their place of residence or the place from which the document concerned is sent. Applying that rule enables any discrimination or arbitrary treatment of individuals to be avoided, since nobody is given an advantage when they invoke and demonstrate the unexpected occurrence of an unforeseeable circumstance or
force majeure
.
Consequently, the first two grounds of appeal must be rejected.
The third ground of appeal
Arguments of the parties
By the third ground of appeal, RF complains that the General Court incorrectly considered RF not to have established the existence of unforeseeable circumstances, within the meaning of the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, and criticises in that regard the findings in paragraph 26 of the order under appeal. It submits that it is hard to imagine which ‘additional measures’ it could have taken to avoid the delays in the delivery of the parcel, since it examined the consignment route using the ‘Tracking’ service, although, after a certain point, it lost ultimate control over the consignment. It takes the view that the General Court’s argument that it could have had some influence over the time it took to deliver the consignment is clearly unfounded.
The Commission contends that the third ground of appeal must be rejected as inadmissible since the appellant, without alleging that the evidence submitted to the General Court has been distorted, challenges the General Court’s assessment of that evidence.
Findings of the Court
It must be pointed out that, in paragraph 26 of the order under appeal, the General Court noted that the appellant had itself stated that it had sent the parcel containing the signed original of the application by registered letter with a form for acknowledgement of receipt but had not taken any other measures. In paragraph 27 of that order, the General Court stated that RF had not invoked any other particular circumstances, such as an administrative breakdown, a natural disaster or a strike. In paragraph 28, it concluded that the appellant had not adduced proof, as was incumbent upon it, that the time it took to ship the parcel had been the decisive reason for being out of time in the sense of its being an unavoidable event which the appellant was unable to guard against.
Such factors are findings of fact and assessments of evidence which it is not for the Court of Justice to review, unless the facts or evidence have been distorted, which is not alleged in the present case. As mentioned in paragraph 30 of this judgment, the jurisdiction of the Court of Justice in an appeal is limited to points of law.
Having regard to those findings of fact, the General Court did not err in law in holding, in paragraph 29 of the order under appeal, that the appellant had not established the existence of unforeseeable circumstances or of
force majeure
in the present case.
In those circumstances, the third ground of appeal must be rejected.
The fourth ground of appeal
Arguments of the parties
By the fourth ground of appeal, RF takes the view that the General Court’s interpretation of Article 45 of the Statute of the Court of Justice of the European Union, according to which the postal operator’s delay that led to the time limit on account of distance being exceeded is not covered by the concept of ‘unforeseeable circumstances’, constitutes an infringement of Article 1, Article 6(1) and Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. It submits that that interpretation leads to unequal treatment depending on the place of domicile and, accordingly, is discriminatory. According to RF, the resulting restriction of fundamental rights at issue is neither necessary nor proportionate to the aim pursued.
The Commission submits that the fourth ground of appeal is inadmissible since it is too vague and, in any event, unfounded.
Findings of the Court
It should be recalled that the principle of effective judicial protection is a general principle of EU law to which expression is now given by Article 47 of the Charter of Fundamental Rights of the European Union, which corresponds, in EU law, to Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (judgment of 10 July 2014, Telefónica and Telefónica de España v Commission,
C‑295/12 P
,
EU:C:2014:2062
, paragraph
and the case-law cited).
That principle, which ensures that every person has a fair trial, does not preclude the setting of a time limit for the institution of legal proceedings (order of 16 November 2010, Internationale Fruchtimport Gesellschaft Weichert v Commission,
C‑73/10 P
,
EU:C:2010:684
, paragraph
and the case-law cited).
The Court has also held that the right to effective judicial protection is in no way undermined by the strict application of the European Union’s rules on procedural time limits, which, according to settled case-law, serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (order of 16 November 2010, Internationale Fruchtimport Gesellschaft Weichert v Commission,
C‑73/10 P
,
EU:C:2010:684
, paragraph
and the case-law cited).
It is also clear from the case-law that a derogation from those rules cannot be justified by the fact that fundamental rights are at stake. Rules concerning time limits for bringing proceedings are mandatory and must be applied by the court in question in such a way as to safeguard legal certainty and equality of persons before the law (order of 16 November 2010, Internationale Fruchtimport Gesellschaft Weichert v Commission,
C‑73/10 P
,
EU:C:2010:684
, paragraph
and the case-law cited).
Finally, as is clear from paragraph 45 of this judgment, the application of the rule that slow postal services alone cannot be the source of the existence of unforeseeable circumstances or of
force majeure
enables any discrimination or arbitrary treatment of individuals to be avoided, since nobody is to be given an advantage when they invoke and demonstrate the unexpected occurrence of an unforeseeable circumstance or
force majeure
.
It follows that the fourth ground of appeal is unfounded.
Since none of the grounds of appeal has been upheld, the appeal must be dismissed.
Costs
Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) thereof, 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 Commission has applied for RF to be ordered to pay the costs and RF has been unsuccessful, it must be ordered to pay the costs.

On those grounds, the Court (First Chamber) hereby:

1.
Dismisses the request for the admission of new evidence;

2.
Dismisses the appeal;

3.
Orders RF to bear its own costs and to pay the costs incurred by the European Commission.

[Signatures]
(
*1
)	Language of the case: Polish.