Case C-242/07 P

Kingdom of Belgium

v

Commission of the European Communities

(Appeals – Time for appealing – Article 43(6) of the Rules of Procedure of the Court of First Instance – Original of the application lodged out of time – Inadmissibility – Concept of ‘excusable error’ – Concept of ‘unforeseeable circumstances’)

Order of the Court (Sixth Chamber), 8 November 2007

Summary of the Order

1. Procedure – Time-limit for instituting proceedings – Claim barred by lapse of time – Unforeseeable circumstances or force majeure – Meaning

(Statute of the Court of Justice, Art. 45, second para.)

2. Procedure – Duty to give reasons for decisions – Scope

3. Procedure – Time-limit for instituting proceedings – Claim barred by lapse of time – Excusable error – Meaning

4. Procedure – Time-limit for instituting proceedings – Application sent by fax – Time-limit for lodging the signed original

(Rules of Procedure of the Court of First Instance, Art. 43(6))

5. Procedure – Application initiating proceedings – Rectification – Conditions

(Statute of the Court of Justice, Art. 21; Rules of Procedure of the Court of First Instance, Art. 44(6))

1. Derogation from the application of the Community rules on procedural time-limits may be made only 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, 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.

The concepts of force majeure and unforeseeable circumstances contain an objective element relating to abnormal circumstances unconnected with the trader in question 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 particular, the trader 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. It is not for the Court of First Instance to make good an applicant’s lack of diligence.

(see paras 16-17, 23)

2. The requirement that the Court of First Instance give reasons for its decisions cannot be interpreted as requiring it to respond in detail to every single argument advanced by an applicant, particularly if the argument was not sufficiently clear and precise and was not adequately supported by evidence.

(see paras 20, 34)

3. Full knowledge of the finality of a decision and of the time‑limit for bringing an action under Article 230 EC does not, in itself, prevent an individual from pleading excusable error to justify his application being out of time, since such an error may occur, in particular, when the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally well-informed person.

(see para. 29)

4. The very wording of Article 43(6) of the Rules of Procedure of the Court of First Instance leaves that Court no discretion in the application of that provision. An applicant’s entitlement to rely, for the purposes of compliance with the Rules of Procedure, on the date of receipt of a fax by the Court Registry is subject to the condition that the signed original of the pleading, a copy of which has thus been sent, is received at that Registry no later than 10 days thereafter. Moreover, where the fax is received more than 10 days before the expiry of the time-limit fixed for bringing an action before the Court of First Instance, the provisions of Article 43(6) of the Rules of Procedure of the Court First Instance do not extend that time-limit.

In those circumstances, a Member State cannot rely on a breach of the principle of proportionality since the action’s inadmissibility was caused by that Member State’s want of diligence in sending the signed original of the application to the Registry of the Court of First Instance within the time-limit at issue, and not by the way in which the Court of First Instance applied Article 43(6) of its Rules of Procedure, a provision which incorporates in those rules modern communication techniques, one of the conditions for the application of which was not fulfilled.

(see paras 38-40)

5. Whilst, under Article 44(6) of the Rules of Procedure, an applicant has the opportunity of putting its application in order, particularly by the dispatch of missing annexes, such putting in order is however possible only to the extent that, under Article 21 of the Statute of the Court of Justice, which applies to proceedings before the Court of First Instance, the essential condition for bringing proceedings before the Court of First Instance is satisfied, namely the lodging of the application. The application is the formal document initiating proceedings in which the parties are required to state the subject-matter of the dispute, and beside which the annexes have only a purely evidential and instrumental function. In those circumstances, the lodging of annexes cannot be regarded as equivalent to a partial lodging of the application.

(see para. 41)

ORDER OF THE COURT (Sixth Chamber)

8 November 2007 ( )

(Appeals – Time for appealing – Article 43(6) of the Rules of Procedure of the Court of First Instance – Original of the application lodged out of time – Inadmissibility – Concept of ‘excusable error’ – Concept of ‘unforeseeable circumstances’)

In Case C‑242/07 P,

APPEAL under Article 56 of the Statute of the Court of Justice, brought on 16 May 2007,

Kingdom of Belgium, represented by L. Van den Broeck, acting as Agent, assisted by J.-P. Buyle and C. Steyaert, avocats,

appellant,

the other party to the proceedings being:

Commission of the European Communities, represented by L. Flynn and A. Steiblytė, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Sixth Chamber),

composed of K. Schiemann, acting as President of the Sixth Chamber, P. Kūris and C. Toader (Rapporteur), Judges,

Advocate General: J. Kokott,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1 By its appeal, the Kingdom of Belgium claims that the Court of Justice should set aside the order of the Court of First Instance of the European Communities of 15 March 2007 in Case T‑5/07 Belgium v Commission, not published in the ECR (hereinafter ‘the order under appeal’), by which that Court dismissed as manifestly inadmissible the Kingdom of Belgium’s action for annulment of the Commission’s decision, contained in a letter of 18 October 2006, refusing to repay the appellant the sum it had paid in respect of the principal owed, plus interest, for debts to the European Social Fund (hereinafter ‘the contested decision’), on the ground that the action was commenced out of time and that the facts relied upon did not constitute unforeseeable circumstances within the meaning of the second paragraph of Article 45 of the Statute of the Court of Justice, which applies to proceedings before the Court of First Instance by virtue of Article 53 thereof.

Background to the dispute and the order under appeal

2 The order under appeal states that the Kingdom of Belgium received notification of the contested decision on 19 October 2006 and that it had a period which expired on 2 January 2007 within which to bring an action under Article 230 EC for annulment of that decision.

3 On 21 December 2006, the Kingdom of Belgium sent a copy of its signed application, accompanied by annexes, by fax to the Registry of the Court of First Instance. Under Article 43(6) of the Rules of Procedure of the Court of First Instance, that date could be taken into account for the purposes of compliance with the time-limits for taking steps in proceedings, provided that the signed original of the application was lodged at the Registry of the Court of First Instance no later than 10 days thereafter.

4 The order under appeal states that the original annexes alone were received by the Court of First Instance on 27 December 2006, whereas the signed original of the application, which was sent by mistake to the Belgian Embassy in Luxembourg in the diplomatic bag, was not received at the Registry of the Court of First Instance until 5 January 2007.

5 In the order under appeal, the Court of First Instance then decided that in default of the Kingdom of Belgium lodging the signed application within 10 days following the sending of the copy thereof by telefax, only the date of the lodgement of the signed original of the application, that is 5 January 2007, could be taken into account for the purposes of compliance with the time-limits for bringing proceedings. Accordingly, the Court of First Instance held that the application had been lodged out of time.

6 In a letter of 2 February 2007, the Kingdom of Belgium invoked, however, excusable error to exclude the time-limit in question and alleged unforeseeable circumstances within the meaning of the second paragraph of Article 45 of the Statute of the Court of Justice.

7 That Member State maintained, in that letter, that its services had demonstrated the diligence required by sending, by telefax, the copy of the signed application well before the date of expiry of the time-limit for commencing proceedings and that they could not have found out about the failure to forward the original application until they were informed thereof by the Registry of the Court of First Instance, on 5 January 2007. In addition, that State argued that a signed application, sent by fax, could not be regarded as void on the ground that the original was not received within a time-limit of 10 days.

8 In the order under appeal, the Court of First Instance, after noting the Community case-law on the concept of unforeseeable circumstances, held that the late lodgement of the original of the application was caused by the fact that the ministry concerned had sent that original to the Belgian Embassy in Luxembourg, which had not finally lodged it at the Court Registry until 5 January 2007. The Court of First Instance also found that no other evidence had been put forward to demonstrate that there were exceptional circumstances or abnormal events which were unconnected to the Kingdom of Belgium’s institutions and caused the alleged unforeseeable circumstances. Finally, it found, as regards the excusable error relied upon by that Member State, that questions connected to the functioning of the applicant’s services could not, by themselves, render the error so made excusable.

The appeal

9 In its appeal, in support of which it relies on four grounds, the Kingdom of Belgium claims that the Court of Justice should:

– set aside the order under appeal;

– declare its action for the annulment of the contested decision admissible and uphold the claims it made before the Court of First Instance;

– if appropriate, refer the case back to the Court of First Instance for adjudication on the substance;

– order the Commission to pay the costs of the proceedings both on the appeal and at first instance.

10 The Commission of the European Communities contends that the Court should dismiss the appeal and order the Kingdom of Belgium to pay the costs.

11 Under Article 119 of the Rules of Procedure, where the appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, dismiss the appeal by reasoned order.

The first ground of appeal, alleging failure to state the grounds for the order under appeal

Arguments of the parties

12 The Kingdom of Belgium complains that the Court of First Instance referred to the Community case-law without stating, in the grounds of the order under appeal, in what respect it did not follow from the facts of this case that there were exceptional circumstances or an excusable error.

13 It submits, in particular, that the Court of First Instance declined to accept that there were exceptional circumstances, confining itself to holding that the error was made by the Kingdom of Belgium’s services and to stating, wrongly, that no other evidence had been put forward by it. Thus, the Court of First Instance did not, particularly, state the reasons why it did not follow that there were exceptional circumstances from certain evidence, which had been put forward, such as the fact that one of its ministerial staff, responsible for Case C‑227/06, which was pending before the Court of Justice had, on about 27 December 2006, contact by telephone with the Registry of the Court of Justice, during which the receipt of two envelopes was confirmed to him and he was assured that everything was in order, as well as the fact that the Court of First Instance did not inform him until 5 January 2007 that the original application had not been received with the annexes which were actually received on 27 December 2006.

14 As regards excusable error, the Kingdom of Belgium submits that the Court of First Instance did not explain in what respect the exceptional and unprecedented circumstance that the original of the application, unlike the annexes, had not been received at the Registry within the time-limit, did not enable it to conclude, in this case, that there was an excusable error. Accordingly, it also failed in its duty to state its reasons in that regard.

15 The Commission submits, for its part, that the order under appeal gave sufficient reasons and that it enabled the Kingdom of Belgium to ascertain the grounds upon which the action was dismissed as inadmissible.

Findings of the Court

16 It is appropriate to recall that the Court has repeatedly held that no derogation from the application of the Community 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, 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 (see, to that effect, particularly, Case 42/85 Cockerill-Sambre v Commission [1985] ECR 3749, paragraph 10; Case C‑59/91 France v Commission [1992] ECR I‑525, paragraph 8; and Case C‑239/97 Ireland v Commission [1998] ECR I‑2655, paragraph 7).

17 The Court has also had occasion to make clear that the concepts of force majeure and unforeseeable circumstances contain an objective element relating to abnormal circumstances unconnected with the trader in question 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 particular, the trader 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 (Case C‑195/91 P Bayer v Commission [1994] ECR I‑5619, paragraph 32).

18 In this case, the Court of First Instance, after recalling the abovementioned case‑law, found, in paragraph 16 of the order under appeal, that the late lodgement of the original of the application was caused by the fact that the Kingdom of Belgium dispatched that original by the diplomatic bag.

19 As regards the other matters relied upon by the Kingdom of Belgium, it must be said, first of all, that the latter is relying for the first time, at the stage of appeal, on an alleged telephone call to the Registry of the Court of Justice, which confirmed to it that all was in order. In that regard, it is sufficient to state that, since no such evidence was adduced before the Court of First Instance, it cannot be criticised for not having mentioned it in the grounds of the order under appeal.

20 Next, as regards the fact that the Registry did not inform it until 5 January 2007 that the original of its request had not been received, it is appropriate to observe that the requirement that the Court of First Instance give reasons for its decisions cannot be interpreted as meaning that it is obliged to respond in detail to every single argument advanced by the appellant, particularly if the argument was not sufficiently clear and precise and was not adequately supported by evidence (see, to that effect, Case C‑404/04 P Technische Glaswerke Ilmenau v Commission [2007] ECR I‑0000, paragraph 90 and the case-law cited).

21 In this case, while it is true that it was stated, in the letter of 2 February 2007 mentioned above, that the fact that the Registry did not immediately acknowledge receipt of the letter from the Kingdom of Belgium was a matter related to external circumstances, that Member State did not, however, express that statement in such a way as to make it sufficiently clear and precise to enable its possible relevance to be grasped for the purposes of determining whether the alleged unforeseeable circumstances existed.

22 In those circumstances, it must be accepted that the Court of First Instance could, without infringing its obligation to state the grounds for its decisions, hold, in paragraph 16 of the order under appeal, that no evidence had been put forward to demonstrate the existence of exceptional circumstances or abnormal events unconnected to the institutions of the Kingdom of Belgium which caused the alleged unforeseeable circumstances.

23 In any event, the Kingdom of Belgium cannot argue that the Registry of the Court of First Instance did not inform it promptly of the failure to send the original application since it is for the applicant alone to pay close attention to the course of the procedure set in motion, and, in particular, to demonstrate diligence in order to comply with the prescribed time-limits (see, to that effect, Bayer v Commission, cited above, paragraph 32) and that, consequently, it is not for the Court of First Instance to make good the applicant’s lack of diligence.

24 Finally, as regards the fact that the original of the application was not received at the Registry of the Court of First Instance within the prescribed time-limit, whereas the annexes were, themselves, lodged within the time-limit at issue, it is sufficient to state that, in the letter of 2 February 2007 mentioned above, the Kingdom of Belgium did not explain in what respect that fact was sufficiently exceptional to give rise to an excusable error.

25 It is, moreover, appropriate to add that such a fact is, in any event, neither exceptional in the context of legal proceedings nor, here, unconnected to the Kingdom of Belgium’s institutions.

26 In view of the foregoing, the first ground of appeal must be rejected as being clearly unfounded.

The second ground of appeal, alleging an error of law in the application of the concept of excusable error

Arguments of the parties

27 The Kingdom of Belgium submits that the Court of First Instance erred in law in finding, in paragraph 18 of the order under appeal, that questions connected with the functioning of its services could not, by themselves, render the error made excusable.

28 The Commission submits that the Court of First Instance faithfully applied the Community case-law and correctly concluded, in the abovementioned paragraph 18, that the Member State concerned could not rely on the defective functioning of its internal organisation to demonstrate that an excusable error could have been made in this case.

Findings of the Court

29 It must be noted that full knowledge of the finality of a decision and of the time‑limit for bringing an action under Article 230 EC does not, in itself, prevent an individual from pleading excusable error to justify his application being out of time since, according to settled case-law, (see, among others, Bayer v Commission, paragraph 26), such an error may occur, in particular, when the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally well-informed person (Case C‑193/01 Pitsiorlas v Council and ECB [2003] ECR I‑4837, paragraph 24).

30 In the order under appeal, the Court of First Instance correctly applied the case-law cited above. Having found, in paragraph 16 of that order, that the late lodgement of the application was the result of dysfunction in the services of the ministry concerned, the Court of First Instance could, correctly, hold that, in this case and in the absence of other evidence, questions connected to the functioning of the Kingdom of Belgium’s services could not, by themselves, render the error thus made excusable since, here, that error corresponded precisely to a lack of diligence of those services.

31 Consequently, the second ground of appeal must be rejected as clearly unfounded.

The third ground of appeal, alleging an error of law or failure to state reasons on the ground that the Court of First Instance failed to consider an argument

Arguments of the parties

32 The Kingdom of Belgium submits that the Court of First Instance did not consider the argument, which it raised in its letter of 2 February 2007, that to sanction, by annulling the application, non-compliance with the time-limit of 10 days for lodging at the Court Registry the signed original of the application, reflects excessive procedural zeal which conflicts with current developments in the methods of communication, reflected particularly in the legislation on a Community framework for electronic signatures.

Findings of the Court

33 In this case, since the date the fax was received cannot be taken into account for the purposes of compliance with the rules of procedure, only the date of lodgement of the original of the application at the Registry could validly be used. The latter date being outside the time-limit for the Kingdom of Belgium to bring its action, the Court of First Instance could not but declare, not the nullity of the application as that Member State submits, but the inadmissibility of that action because of its late lodgement.

34 In actual fact, on a reading of the letter of 2 February 2007, that alleged argument of the applicant looks more like general criticism of the rules arising from the Rules of Procedure which the Court of First Instance is, however, obliged to apply strictly, as was noted in paragraph 16 of the present order. The requirement that the Court of First Instance give reasons for its decisions, cannot be interpreted as meaning that it is obliged to respond in detail to every single argument advanced by the appellant, particularly if the argument was not sufficiently clear and precise and was not adequately supported by evidence (see Case C‑274/99 P Connolly v Commission [2001] ECR I‑1611, paragraph 121, and Case C‑197/99 P Belgium v Commission [2003] ECR I‑8461, paragraph 81).

35 Consequently, the third ground of appeal must be rejected as clearly unfounded.

The fourth ground of appeal, alleging breach of the principle of proportionality

Arguments of the parties

36 The Kingdom of Belgium submits that the inadmissibility of an application, where the original thereof is not received at the Registry of the Court of First Instance within the 10 days following the sending of a copy by telefax within the time-limit under Article 230 EC, is a breach of the principle of proportionality. In the absence of a requirement linked to legal certainty, compliance with that principle requires that an application received by fax within the time-limit for commencing proceedings imposed by the EC Treaty be not declared inadmissible, provided that it is lodged within the 10 days following the date of expiry of the time-limit imposed for lodging the application by fax. Moreover, the original application could have been regarded as having been lodged, in part, in good time at the Court Registry, since the original annexes were actually received on 27 December 2006.

37 The Commission submits that this ground of appeal is inadmissible since it tends to put in question the legality of Article 43(6) of the Rules of Procedure of the Court of First Instance. In the Commission’s submission, the Kingdom of Belgium cannot validly raise, indirectly, the illegality of a provision of the Rules of Procedure of the Court of First Instance which it could validly have challenged within the period of two months under Article 230 EC. In the alternative, it submits that this ground of appeal is unfounded since the Community legislature intended neither to authorise nor to require the Court of First Instance to examine, case by case, the proportionality of a declaration of inadmissibility in circumstances such as those of the present case.

Findings of the Court

38 The very wording of Article 43(6) of the Rules of Procedure of the Court of First Instance leaves that Court no discretion in the application of that provision. An applicant’s entitlement to rely, for the purposes of compliance with the Rules of Procedure, on the date of receipt of a fax by the Court Registry is subject to the condition that the signed original of the pleading, a copy of which has thus been sent, is received at that Registry no later than 10 days thereafter.

39 Moreover, where, as in the present case, the fax is received more than 10 days before the expiry of the time-limit fixed for bringing an action before the Court of First Instance, the provisions of Article 43(6) of the Rules of Procedure of the Court First Instance do not extend that time-limit (Case C‑325/03 P Zuazaga Meabe v OHIM [2005] ECR I‑403, paragraph 18).

40 In those circumstances, the Kingdom of Belgium cannot rely on a breach of the principle of proportionality since, as the Court of First Instance held in the order under appeal, the action’s inadmissibility was caused by that Member State’s want of diligence in sending the signed original of the application to the Registry of the Court of First Instance within the time-limit at issue, and not by the way the Court of First Instance applied Article 43(6) of its Rules of Procedure, a provision which incorporates in those rules modern communication techniques, in amendments adopted by the Court of First Instance, with the agreement of the Court of Justice and with the unanimous approval of the Council, in the Decision of the Court of First Instance of 6 December 2000 (OJ 2000 L 322, p. 4), one of the conditions for the application of which was not fulfilled in this case.

41 Finally, the Kingdom of Belgium cannot maintain that its original application had been lodged, in part, in good time to the extent that the original annexes were actually received at the Registry of the Court of First Instance. While an applicant has, under Article 44(6) of the Rules of Procedure, the opportunity of putting its application in order, particularly by the dispatch of missing annexes, such putting in order is however possible only to the extent that, under Article 21 of the Statute of the Court of Justice, which applies to proceedings before the Court of First Instance, the essential condition for bringing proceedings before the Court of First Instance is satisfied, namely the lodgement of the application. The application is the formal document initiating proceedings in which the parties are required to state the subject-matter of those proceedings (see, to that effect, Case 232/78 Commission v France [1979] ECR I‑2729, paragraph 3, and Case C‑256/98 Commission v France [2000] ECR I‑2487, paragraph 31), beside which the annexes have only a purely evidential and instrumental function (see, to that effect, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rǿrindustri and Others v Commission [2005] ECR I‑5425, paragraph 99). In those circumstances, the lodgement of annexes could not be regarded as equivalent to the lodgement, in part, of the application.

42 Consequently, the fourth ground of appeal must be rejected as clearly unfounded.

43 Accordingly, the appeal must be dismissed as clearly unfounded.

Costs

44 Under Article 69(2) of the Rules of Procedure, which is, pursuant to Article 118 of those rules, applicable to the procedure on appeal, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has applied for costs, and as the Kingdom of Belgium has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds, the Court (Sixth Chamber) hereby orders:

1. The appeal is dismissed.

2. The Kingdom of Belgium is ordered to pay the costs.

[Signatures]