ORDER OF THE COURT (Eighth Chamber)
5 February 2025 (*)
( Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Public health – Implementing Decision (EU) 2023/686 – Refusal to grant a Union authorisation for a single biocidal product (insecticide) – Notification to the addressee – Third subparagraph of Article 297(2) TFEU – Period for lodging an appeal – Sixth paragraph of Article 263 TFEU – Starting point of that period – Appeal manifestly inadmissible )
In Case C‑308/24 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 29 April 2024,
Dakem, established in Courbevoie (France), represented by P. Sellar and K. Van Maldegem, advocaten,
appellant,
the other party to the proceedings being:
European Commission,
defendant at first instance,
THE COURT (Eighth Chamber),
composed of S. Rodin, President of the Chamber, N. Piçarra (Rapporteur) and O. Spineanu-Matei, Judges,
Advocate General: D. Spielmann,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1        By its appeal, Dakem seeks to have set aside the order of the General Court of the European Union of 1 March 2024, Dakem v Commission (T‑341/23, ‘the order under appeal’, EU:T:2024:160), by which the General Court dismissed as inadmissible its action for the annulment of Commission Implementing Decision (EU) 2023/686 of 24 March 2023 not granting a Union authorisation for the single biocidal product ‘Insecticide Textile Contact’ (OJ 2023 L 90, p. 42; ‘the decision at issue’).
Legal context
The FEU Treaty
2        The sixth paragraph of Article 263 TFEU provides that:
‘The proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.’
3        Under the third paragraph of Article 297(2) TFEU:
‘… decisions which specify to whom they are addressed … shall be notified to those to whom they are addressed and shall take effect upon such notification.’
Rules of Procedure of the General Court
4        In accordance with Article 60 of the Rules of Procedure of the General Court, the procedural time limits shall be extended on account of distance by a single period of 10 days.
Regulation (EU) No 528/2012
5        Recital 45 of Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products (OJ 2012 L 167, p. 1) states:
‘In order to facilitate the functioning of the authorisation and mutual recognition procedures, it is appropriate to establish a system for the mutual exchange of information. To accomplish this, a Register for Biocidal Products should be established. Member States, the [European] Commission and the [European Chemicals Agency (ECHA)] should use this Register to make available to each other the particulars and scientific documentation submitted in connection with applications for authorisation of biocidal products.’
6        Article 71(2) and (6) of that regulation provides:
‘2.      The Register for Biocidal Products shall be used for the exchange of information between competent authorities, [ECHA] and the Commission and between applicants and competent authorities, [ECHA] and the Commission.
…
6.      The competent authorities and the Commission shall use the Register for Biocidal Products to record and communicate the decisions they have taken in relation to the authorisations of biocidal products and shall update the information in the Register for Biocidal Products at the time such decisions are taken. …’
Background to the dispute
7        The background to the dispute is described in paragraphs 2 to 9 of the order under appeal and may be summarised as follows.
8        On 24 April 2016, Dakem, a French company specialising in the formulation and marketing of biocidal products for the control of biting insects, submitted to ECHA an application for Union authorisation of the single biocidal product Insecticide Textile Contact which was recorded in the Register for Biocidal Products maintained by ECHA and used for the exchange of information between competent authorities, ECHA and the Commission, and between applicants and competent authorities, ECHA and the Commission, in accordance with Article 71(2) of Regulation No 528/2012.
9        On 24 March 2023, following a negative opinion issued by ECHA on that application for authorisation, the Commission adopted the decision at issue.
10      On 27 March 2023, that decision was transmitted to Dakem by email from the Secretariat-General of the Commission under number C(2023) 1853 (‘the email of 27 March 2023’).
11      On 28 March 2023, the Commission published the decision at issue in the Official Journal of the European Union.
12      On 29 March 2023, the Commission communicated that decision through the Register for Biocidal Products.
The procedure before the General Court and the order under appeal
13      By an application lodged at the Registry of the General Court on 16 June 2023, Dakem brought an action for annulment of the decision at issue.
14      The Commission submitted a plea of inadmissibility in respect of that action on the ground that it had been brought out of time.
15      The General Court, considering that it had sufficient information from the material in the file, decided, in accordance with Article 130(1) of its Rules of Procedure, to give a decision by reasoned order, without going to the substance of the case.
16      In the first place, in paragraphs 30 and 31 of the order under appeal, the General Court recalled that, first, under the sixth paragraph of Article 263 TFEU and the third subparagraph of Article 297(2) TFEU, proceedings for annulment are to be instituted within two months of the publication of the measure at issue, or of its notification to the appellant, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. Secondly, it recalled that, by contrast with acts which must be published in the Official Journal of the European Union, decisions which specify to whom they are addressed are to be notified to those addressees and take effect upon such notification.
17      In paragraph 32 of that order, the General Court inferred from that that, so far as concerns decisions which specify to whom they are addressed, the date to be taken into account for the purpose of determining the starting point of the time limit for bringing an action for annulment is that on which the decision concerned is notified.
18      In paragraphs 33, 36 and 37 of that order, the General Court found, first, that Article 2 of the decision at issue specifies Dakem as the addressee, with the result that the starting point of the time limit for bringing an action for annulment against that decision was the date on which it was notified, and, secondly, that that decision was communicated to Dakem as an attachment to the email of 27 March 2023, and one of its employees acknowledged receipt of it on that same day.
19      As regards the regularity of that notification, the General Court held that the requirements recalled in paragraphs 34, 35, 38 and 39 of that order were met in the present case. It noted, in particular, in paragraph 37 of that order, that the fact that the acknowledgement of receipt came from an employee of Dakem, who, according to that company, did not have authority to bind it in law, did not call into question the regularity of that notification.
20      In paragraph 40 of the order under appeal, the General Court found that the decision at issue had been duly notified to Dakem on 27 March 2023; that the time limit of two months provided for by the sixth paragraph of Article 263 TFEU had therefore begun to run the day after the notification of that decision by email, namely 28 March 2023 at 00:00; and that that time limit, extended on account of distance by a single period of 10 days, in accordance with Article 60 of the Rules of Procedure of the General Court, had expired on 6 June 2023 at midnight. It accordingly held, in paragraph 41 of that order, that the application lodged by Dakem on 16 June 2023 was out of time.
21      In the second place, in paragraphs 43 to 45 of that order, the General Court noted that Article 71(6) of Regulation No 528/2012 provides that decisions taken by the Commission are to be communicated through the Register for Biocidal Products, but neither requires that the notification, for the purposes of the sixth paragraph of Article 263 TFEU, of those decisions be carried out through that register, nor lays down a specific procedure to that end.
22      In the third place, the General Court held, in paragraph 48 of that order, that the clarity of the combined provisions of the FEU Treaty, referred to in paragraph 16 of the present order, left no room for doubt as to the starting point of the time limit and that, accordingly, neither the publication nor the communication of the decision at issue through the Register for Biocidal Products constituted conduct of the Commission capable of giving rise to pardonable confusion in the mind of a party acting in good faith and displaying all the diligence required of a normally well-informed person.
23      In the fourth and last place, the General Court, after finding that Dakem had not demonstrated the diligence necessary as regards the prescribed time limits, rejected, in paragraphs 54 and 55 of the order under appeal, the argument alleging the existence of a case of force majeure on which it relied. In paragraph 56 of that order, the Court recalled that, since the rules concerning time limits for bringing an action are mandatory, the appellant could not derogate from those rules to ensure its right to bring a legal action.
24      In the light of all those elements, the General Court upheld the plea of inadmissibility raised by the Commission and dismissed the action as inadmissible since it was brought out of time.
The form of order sought by the appellant
25      The appellant claims that the Court should:
–        set aside the order under appeal;
–        declare its action admissible; and
–        order the Commission to bear its own costs and to pay those incurred by the appellant in the present proceedings and at first instance.
The appeal
26      Under Article 181 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.
27      It is appropriate to apply that provision in the present case.
28      The appellant raises four grounds in support of its appeal. The first ground of appeal alleges that the General Court erred in law by failing to examine whether the Commission had failed to comply with its ‘obligation to use best endeavours’, consisting in creating, for the addressee, conditions in which it could effectively take cognisance of the notification at issue. The second ground of appeal alleges an error of law in the interpretation of Article 71 of Regulation No 528/2012. The third ground of appeal alleges an error of law in the application of the criterion of ‘pardonable confusion’. The fourth ground of appeal alleges an error of law in the application of the criterion of ‘deprivation of rights’.
The first ground of appeal
29      By its first ground of appeal, Dakem submits, by disputing paragraphs 30 to 40 of the order under appeal, that the General Court relied on the incorrect premiss that that company ‘must have known that Article 297 TFEU was applicable and what it meant’, even though only an employee of Dakem, an insect engineer, had taken cognisance of the email of 27 March 2023 the content of which was not clear. The Court, it argues, had ‘failed to consider the weight of relevant factors properly’, in order to determine whether the Commission had fulfilled its ‘obligation to use best endeavours’ in respect of Dakem.
30      Where the General Court has established or assessed the facts, the Court of Justice has jurisdiction, under Article 256 TFEU, solely to review their legal characterisation and the legal conclusions which were drawn from them. The appraisal of the facts does not therefore constitute, save where the clear sense of the evidence produced before the General Court is distorted, a question of law which is subject, as such, to review by the Court of Justice (judgment of 11 January 2024, Planistat Europe and Charlot v Commission, C‑363/22 P, EU:C:2024:20, paragraph 50 and the case-law cited).
31      In the present case, Dakem merely criticises the General Court for not examining whether the Commission had complied with its ‘obligation to use best endeavours’ which, in the appellant’s view, it was required to do, by requesting that the Court of Justice re-examine the content of the email of 27 March 2023. In so doing, Dakem is requesting, in essence, that the Court of Justice review factual matters and evidence, without alleging that the General Court distorted them.
32      It follows that the first ground of appeal must be rejected as clearly inadmissible, in accordance with the case-law referred to in paragraph 30 of the present order.
The second ground of appeal
33      By its second ground of appeal, Dakem criticises the General Court for erring in law, in paragraphs 40 to 45 of the order under appeal, when interpreting Article 71 of Regulation No 528/2012, by finding that that provision does not lay down the obligation for the Commission to notify the decision at issue through the Register for Biocidal Products in order for that notification to be regular and comply with all required formalities.
34      It must be found that the decision at issue was communicated through the Register for Biocidal Products on 29 March 2023. Accordingly, assuming that the General Court, under Article 71(6) of Regulation No 528/2012, had to regard the communication of the decision through the Register for Biocidal Products as being the only notification which complied with all required formalities and started the time limit for bringing an action, that time limit would have expired on 8 June 2023 at midnight, or on the expiry of the time limit of two months, provided for by the sixth paragraph of Article 263 TFEU, extended on account of distance by the single period of 10 days, as provided for by Article 60 of the Rules of Procedure of the General Court. Consequently, the action brought by Dakem would also have been out of time in that case.
35      It follows from the foregoing that the second ground of appeal must be rejected as being manifestly ineffective.
The third ground of appeal
36      By its third ground of appeal, Dakem submits that the General Court wrongly held, in paragraphs 46 to 52 of the order under appeal, that the conduct of the Commission had not been capable of creating a ‘pardonable confusion’, that is to say an excusable error in its mind as to the starting point of the time limit for bringing an action against the decision at issue. The Court, it argues, first, did not analyse the content of the email of 27 March 2023 in order to ascertain whether it was misleading, confusing, or inconsistent; secondly, it did not take account of the fact that the Register for Biocidal Products is the only mechanism through which communications are formally notified under that regulation; thirdly, it failed to acknowledge that no legal advice was sought on the meaning of the reference to Article 297 TFEU in the email of 27 March 2023, that the recipient of the email was a lay person and that that email provided no explanation as to the meaning of that reference; and, fourthly, it did not take into account the fact that Dakem had to be regarded as a small or medium-sized enterprise.
37      Under Article 170(1) of the Rules of Procedure of the Court of Justice, the subject matter of the proceedings before the General Court may not be changed in the appeal. The jurisdiction of the Court of Justice in an appeal is confined to a review of the findings of law on the pleas argued before the General Court. A party cannot therefore put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court, since that would amount to allowing that party to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court (judgment of 4 October 2024, thyssenkrupp v Commission, C‑581/22 P, EU:C:2024:821, paragraph 123).
38      It is apparent from paragraph 46 of the order under appeal that Dakem, in support of the argument raised at first instance that its error as to the starting point of the time limit for bringing an action against the decision at issue had to be regarded as excusable, referred only to the sequence of events, attributable to the Commission’s conduct, according to which the decision at issue was, first of all, notified, then published in the Official Journal of the European Union, and, lastly, communicated through the Register for Biocidal Products, over the course of three days.
39      By arguing that the General Court, in its examination of the question whether the error made by Dakem is excusable as regards the starting point of the time limit for bringing an action against the decision at issue, wrongly failed to take account of the facts referred to in paragraph 36 of the present order, which had not in fact been raised at first instance, Dakem is in reality putting before the Court of Justice a plea which was not raised before the General Court. Such a ground of appeal, which is based solely on those facts, must therefore be rejected as inadmissible (see, to that effect, order of the Vice-President of the Court of 22 February 2022, Fastweb v Commission, C‑649/21 P(I), EU:C:2022:171, paragraph 31).
40      It follows from the foregoing that the third ground of appeal must be rejected as being manifestly inadmissible.
The fourth ground of appeal
41      By its fourth ground of appeal, the appellant criticises the General Court for erring in law in applying a criterion which it identifies as that of ‘deprivation of rights’, in that the Court did not carry out ‘a full appreciation/assessment of the relevant factors and the situation that the [a]ppellant found itself in’.
42      According to settled case-law, based on the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of that appeal, failing which the appeal or ground of appeal concerned will be inadmissible (judgment of 11 January 2024, Planistat Europe and Charlot v Commission, C‑363/22 P, EU:C:2024:20, paragraph 40 and the case-law cited).
43      A mere abstract statement of the grounds in the application does not alone satisfy the requirements laid down in Article 21 of the Statute of the Court of Justice of the European Union and in Article 169 of the Rules of Procedure of the Court of Justice (orders of 31 January 2019, Iordăchescu v Parliament and Others, C‑426/18 P, EU:C:2019:89, paragraph 29, and of 23 July 2019, UC v Parliament, C‑196/19 P, EU:C:2019:653, paragraph 22).
44      Moreover, a complaint which merely comments on a paragraph of the decision at issue without setting out a coherent legal argument designed specifically to identify the error of law which allegedly vitiates that paragraph, must be rejected as manifestly inadmissible (see, to that effect, orders of 21 March 2012, Fidelio v OHIM, C‑87/11 P, EU:C:2012:154, paragraph 62, and of 22 December 2022, Jalkh v Parliament, C‑82/22 P, EU:C:2022:1039, paragraph 49).
45      In the present case, while the appeal identifies the criticised paragraphs of the order under appeal, it is clear that it merely raises, in a vague manner, a complaint alleging infringement of the criterion of ‘deprivation of rights’ and does not contain a coherent legal argument allowing for the identification of the error of law allegedly made by the General Court.
46      The fourth ground of appeal must, therefore, be rejected as manifestly inadmissible.
47      In the light of all the foregoing considerations, the appeal must be dismissed as manifestly inadmissible.
Costs
48      Under Article 137 of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. Since the present order was adopted without the appeal being served on the other party to the proceedings and, therefore, without it being able to incur costs, it is appropriate to decide that Dakem is to bear its own costs.
On those grounds, the Court (Eighth Chamber) hereby orders:
1.      The appeal is dismissed as manifestly inadmissible.
2.      Dakem shall bear its own costs.
Luxembourg, 5 February 2025.
A. Calot Escobar
S. Rodin
Registrar
President of the Chamber
*      Language of the case: English.