61982CJ0284_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 284/82
ACCIAIERIE E FERRIERE BUSSENI SPA, AT PRESENT SUBJECT TO COURT-CONTROLLED MANAGEMENT PROCEDURE, HAVING ITS REGISTERED OFFICE AT NAVE ( BRESCIA, ITALY ), IN THE PERSON OF ITS SOLE ADMINISTRATOR, MAURIZIO BUSSENI, REPRESENTED BY
FABRIZIO MASSONI, GINO ALBERTO BERGMANN AND GEROLAMO PELLICANO, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ANDRE ELVINGER, 15 COTE D ' EICH,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY SERGIO FABRO, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, BOTH MEMBERS OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR A DECLARATION THAT THE INDIVIDUAL DECISION OF THE COMMISSION OF 13 AUGUST 1982 IMPOSING A FINE ON THE APPLICANT IS VOID,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 25 OCTOBER 1982 ACCIAIERIE E FERRIERE BUSSENI SPA ( HEREINAFTER REFERRED TO AS ' ' BUSSENI ' ' ), WHOSE REGISTERED OFFICE IS AT NAVE ( ITALY ), BROUGHT AN APPLICATION UNDER THE SECOND PARAGRAPH OF ARTICLE 36 OF THE ECSC TREATY CLAIMING ON THE ONE HAND THAT THE COURT SHOULD DECLARE VOID COMMISSION DECISION C ( 82 ) 1191/3 OF 13 AUGUST 1982 FINING IT 514 875 ECU, THAT IS LIT 680 289 981, PURSUANT TO ARTICLE 58 ( 4 ) OF THE ECSC TREATY AND ARTICLE 9 OF THE GENERAL COMMISSION DECISION NO 2794/80/ECSC OF 31 OCTOBER 1980 ESTABLISHING A SYSTEM OF STEEL PRODUCTION QUOTAS FOR UNDERTAKINGS IN THE IRON AND STEEL INDUSTRY ( OFFICIAL JOURNAL, L 291, P . 1 ) AND ON THE OTHER HAND, IN THE ALTERNATIVE, THE REDUCTION OF THE AMOUNT OF THE FINE AND THE GRANT OF TIME FOR PAYMENT .
2 THE STATEMENT OF THE REASONS ON WHICH THE CONTESTED DECISION IS BASED REFERS TO THE FACT THAT FOR THE FIRST AND SECOND QUARTERS OF 1981 BUSSENI EXCEEDED BY
3 398 AND 3 467 TONNES RESPECTIVELY THE PRODUCTION QUOTAS ALLOCATED TO IT FOR GROUP IV PRODUCTS UNDER THE STEEL PRODUCTION QUOTA SYSTEM ESTABLISHED BY DECISION NO 2794/80 . THE COMMISSION ORDERED BUSSENI TO PAY THE FINE WITHIN A PERIOD OF TWO MONTHS FROM NOTIFICATION OF THE DECISION .
3 THE DECISION WAS FORWARDED TO BUSSENI BY LETTER DATED 17 AUGUST 1982 AND RECEIVED BY BUSSENI ON 26 AUGUST 1982 AT ITS REGISTERED OFFICE IN NAVE .
ADMISSIBILITY
4 THE COMMISSION RAISES AN OBJECTION THAT THE APPLICATION IS INADMISSIBLE . IT ALLEGES IN THAT RESPECT THAT BUSSENI HAS NOT OBSERVED THE PERIOD OF ONE MONTH FROM NOTIFICATION OF THE DISPUTED DECISION, LAID DOWN BY ARTICLE 39 OF THE STATUTE OF THE COURT OF THE ECSC AND EXTENDED BY 10 DAYS IN THE PRESENT CASE PURSUANT TO ARTICLE 81 OF THE RULES OF PROCEDURE OF THE COURT AND ARTICLE 1 OF ANNEX II THERETO . THE APPLICATION WHICH OUGHT THUS TO HAVE BEEN MADE BEFORE 6 OCTOBER 1982 DID NOT IN FACT REACH THE COURT UNTIL 25 OCTOBER 1982 .
5 BUSSENI ON THE CONTRARY MAINTAINS THAT THE APPLICATION IS FULLY ADMISSIBLE WITH REGARD TO THE TIME-LIMIT . IT WAS NOT ABLE TO MAKE APPLICATION WITHIN THE PRESCRIBED PERIOD BECAUSE THE UNDERTAKING WAS UNDER THE CASSA INTEGRAZIONE GUADAGNI BECAUSE, BY ORDER OF THE TRIBUNALE, BRESCIA, OF 23 APRIL 1982 IT HAD BEEN PLACED UNDER COURT-CONTROLLED MANAGEMENT FOR TWO YEARS WITH THE APPOINTMENT OF A COMMISSARIO GIUDIZIALE AND BECAUSE IT HAD BEEN COMPLETELY CLOSED FROM 17 MARCH TO 13 SEPTEMBER 1982 . IN THOSE CIRCUMSTANCES THE MANAGEMENT OF THE COMPANY HAD BEEN PREVENTED FROM TAKING COGNIZANCE OF THE SERVICE OF THE DECISION AT ISSUE BEFORE A DATE WHICH BUSSENI PUTS AT 18 DAYS AT LEAST AFTER THE RE-OPENING ON 13 SEPTEMBER 1982 BY REASON OF THE ACCUMULATION OF SIX MONTHS '
POST .
6 IN THE APPLICANT ' S VIEW THE CLOSURE REPRESENTED A VERY SERIOUS CRISIS CONSTITUTING UNFORESEEABLE CIRCUMSTANCES OR FORCE MAJEURE WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 39 OF THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC AND THUS INTERRUPTED THE RUNNING OF THE PRESCRIBED PERIOD .
7 ALTERNATIVELY BUSSENI MAINTAINS THAT EVEN ON THE ASSUMPTION THAT ONLY THE DATE OF THE RE-OPENING IS TO BE TAKEN INTO ACCOUNT THE APPLICATION OUGHT TO BE TREATED AS MADE IN TIME SINCE ACCORDING TO ARTICLE 80 OF THE RULES OF PROCEDURE OF THE COURT THE PERIOD OF ONE MONTH PRESCRIBED FOR BRINGING AN ACTION WOULD HAVE STARTED TO RUN ON 14 SEPTEMBER 1982 AND WOULD HAVE EXPIRED, IN VIEW OF THE 10 ADDITIONAL DAYS PROVIDED BY ARTICLE 1 OF ANNEX II TO THE RULES OF PROCEDURE, ON 24 OCTOBER 1982 . SINCE THAT DAY WAS A SUNDAY THE PERIOD IN FACT EXPIRED ON 25 OCTOBER 1982 WHEN THE APPLICATION WAS REGISTERED AT THE COURT .
8 IT MUST BE STATED THAT THE PERIOD FOR BRINGING AN ACTION MUST BE STRICTLY OBSERVED AND CANNOT BE EXTENDED SAVE ON GROUNDS OF DISTANCE AS PROVIDED IN THE SECOND PARAGRAPH OF ARTICLE 39 OF THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC . NEVERTHELESS THE THIRD PARAGRAPH THEREOF PROVIDES THAT 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 .
9 IN THE PRESENT CASE PURSUANT TO ARTICLE 33 OF THE ECSC TREATY THE PERIOD PRESCRIBED FOR BRINGING AN ACTION WAS ONE MONTH EXTENDED ON ACCOUNT OF DISTANCE BY A PERIOD OF 10 DAYS GRANTED TO ITALIAN APPLICANTS PURSUANT TO ANNEX II TO THE RULES OF PROCEDURE . IN VIEW OF THE FACT THAT THE DECISION AT ISSUE WAS NOTIFIED TO THE APPLICANT ON 26 AUGUST 1982 AND THAT ACCORDING TO ARTICLE 81 OF THE RULES OF PROCEDURE THE PERIOD OF TIME ALLOWED FOR COMMENCING PROCEEDINGS AGAINST A MEASURE ADOPTED BY AN INSTITUTION IS TO RUN FROM THE DAY FOLLOWING THE RECEIPT BY THE PERSON CONCERNED OF NOTIFICATION OF THE MEASURE, THE PERIOD FOR COMMENCING PROCEEDINGS EXPIRED ON 6 OCTOBER 1982 SO THAT THE APPLICATION, REGISTERED AT THE COURT ON 25 OCTOBER 1982, WAS OUT OF TIME .
10 THE ADMISSIBILITY OF THE APPLICATION THUS DEPENDS SOLELY ON THE QUESTION OF THE EXISTENCE IN THIS CASE OF FORCE MAJEURE WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 39 OF THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC .
11 IT IS APPARENT FROM THE ESTABLISHED CASE-LAW OF THE COURT THAT APART FROM SPECIAL CASES IN SPECIFIC AREAS IN WHICH IT IS USED, THE CONCEPT OF FORCE MAJEURE ESSENTIALLY COVERS 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 .
12 IT MUST BE OBSERVED THAT IT IS APPARENT FROM THE FILE THAT THE CLOSURE OF THE BUSSENI UNDERTAKING DID NOT MEAN EITHER THE WINDING-UP OF THE UNDERTAKING OR THE TERMINATION OF THE RESPONSIBILITY OF ITS MANAGEMENT FOR THE NORMAL CONDUCT OF BUSINESS . THE FACT THAT IT RECEIVED THE SUPPORT OF THE CASSA INTEGRAZIONE GUADAGNI, THAT IT WAS PLACED BY ORDER OF 23 APRIL 1982 OF THE TRIBUNALE, BRESCIA, UNDER COURT-CONTROLLED MANAGEMENT FOR TWO YEARS, THAT A COMMISSARIO GIUDIZIALE WAS APPOINTED AND THAT IT ADOPTED MANAGERIAL MEASURES IN THE INTEREST OF ITS RE-OPENING SUFFICIENTLY SHOWS A CONSIDERABLE ACTIVITY INTENDED TO SECURE ITS SURVIVAL AND PRESERVATION .
13 IN CONSEQUENCE IT MUST BE STATED THAT IN THIS CASE THERE ARE NO ABNORMAL AND INEVITABLE DIFFICULTIES OR EXTERNAL EVENTS INDEPENDENT OF THE WILL OF THE MANAGEMENT OF THE UNDERTAKING WHICH MIGHT HAVE JUSTIFIED A FAILURE TO OPEN CORRESPONDENCE RELATING TO THE BUSINESS OF THE UNDERTAKING .
14 IT FOLLOWS THAT THE INSTITUTION OF PROCEEDINGS OUT OF TIME IS NOT DUE TO FORCE MAJEURE AND THAT THE ACTION IS INADMISSIBLE .
Decision on costs
COSTS
15 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE APPLICANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;
2 . ORDERS THE APPLICANT TO PAY THE COSTS .