1.

The High Authority maintains in the first place that the two applications are out of time. The applicants in fact were respectively notified of the contested decisions on 20 March 1965 (Simet) and 19 March 1965 (Feram). Their applications, which were sent from Turin on 21 April by registered parcel post, arrived at the Luxembourg customs on Friday 30 April at 5 p.m. but, by reason of the two holidays which followed (Saturday 1 May and Sunday 2 May), the Court was only informed of this on 3 May and took delivery of the applications on 4 May on which date they were entered at the Registry. The High Authority remarks that, taking account of the extension of time on account of distance prescribed for Italy, they ought to have reached the Registry at the latest on 30 April in the case of Simet and 29 April in the case of Feram. This was what it maintained in two applications made under Article 91 of the Rules of Procedure but, as you will recall, .the decision on these applications was reserved for the final judgment by virtue of orders made on 13 July 1965. The rules which you are called upon to apply are the following. According to the third paragraph of Article 33 of the ECSC Treaty proceedings must be instituted within one month of the notification of the contested decision. Article 81 of the Rules of Procedure states that the period starts to run from the day following the receipt by the person concerned of notification of the measure. It should be remarked that, contrary to what the High Authority has said, the period is not one of 30 days but of one month and it may therefore vary slightly according to the number of days in the various months of the year. In other words, when an undertaking is notified of a decision on the 20th day in any particular month, the period starts to run from the 21st and expires in every case in the evening of the 20th day of the following month. To this must be added the extension on account of distance laid down by your Rules of Procedure pursuant to Article 39 of the Protocol on the Statute of the Court of Justice annexed to the ECSC Treaty. According to Annex II of the Rules of Procedure, save where the panties are resident in the Grand Duchy, procedural time-limits shall be extended on account of distance by a period varying according to the country and which for Italy is ten days. As is apparent from the language used, this is not a new period which follows upon an earlier one and which might have its own rules, but merely an extension of the latter. Going back to the previous example, I would say that the period which would normally expire on the 20th is extended for an applicant residing in Italy until the evening of the 30th. On the other hand, when this period, whether or not extended on account of distance, expires on a Sunday or a public holiday, expiry is deferred until the end of the following working day. Lastly it should be remembered that according to Article 37 (3) of the Rules of Procedure: ‘In the reckoning of time-limits for taking steps in proceedings, the only relevant date shall be that of lodgment at the Registry’. We shall have to return later to this provision which you have already had cause to apply. In my opinion there can be no doubt that these are mandatory rules which must be observed upon penalty of being barred from taking proceedings, as is generally the case under national laws. Counsel for the applicants submitted two arguments against this view in the course of the oral procedure. First of all, Article 39 of the ECSC Protocol 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’. But this exception proves the rule and places upon the applicant the burden of proving that the external factor, on which it wishes to rely, did in fact exist. Secondly, Article 82 of the Rules of Procedure which is worded as follows: ‘Any time-limit prescribed pursuant to these Rules may be extended by whoever prescribed it’. The very limited scope of this Article must be remarked. Procedural time-limits may be fixed in two ways. Either by a provision of a general and abstract nature which applies to all cases or to a class of cases: this is so as regards time-limits for instituting proceedings and the extension of time-limits on account of distance fixed by the Treaty, by the Protocol and by the Rules of Procedure. Or by an individual decision taken each time according to the circumstances of the case: this is so as regards the reply and the rejoinder in respect of which Article 41 of the Rules of Procedure gives the President of the Court, or, possibly the President of a Chamber, power to prescribe time-limits. By comparing this Article with Article 40 one is led to the conclusion that it is only in cases of this kind, the only ones in which the time-limit has been fixed pursuant to the Rules of Procedure, that the President, who prescribed the time-limit, may extend it. But no such possibility exists in the case of time-limits for instituting proceedings or concerning the extensions on account of distance which are hid down in mandatory form by the relevant provisions. Let us apply these facts to the present cases. The applications, which were sent by parcel post from Turin on 21 April, were entered at the Court Registry on Tuesday 4 May. They had been preceded by a registered letter, sent on the same day and announcing that they had been dispatched. This communication had arrived at the Registry on 23 April but, since it contained no conclusions, it could not be regarded as an application. It is common knowledge, say the applicants, that post takes 3 to 4 days, or 5 at the maximum, to reach Luxembourg from Italy. The unusual delay in the present case could therefore only be attributed to the inefficient functioning of the postal services, although it is impossible to know whether the Italian or Luxembourg services were at fault, but it does constitute in any event a case of unforeseeable circumstances or of force majeure, as provided for in Article 39 of the Protocol. A number of objections may be made to this. The first is that the length of time which post takes to reach its destination depends on the method of dispatch which was chosen. When the applicants apeak of a normal period of from 3 to 5 days they are no doubt right so far as ordinary or registered letters are concerned (proof of this is the registered letter addressed to the Registry which I have just mentioned). However, just as there are quicker methods (telegrams, telex, express letters), there are others, cheaper and notoriously slower, such as parcel post which was utilized by Simet and Feram and for which a period of 10 days from Turin to Luxembourg does not appear to exceed what is reasonably predictable. Since the time-limit for lodging an application is mandatory, it is for the applicants to send their mail on such a date that it can arrive in time, bearing in mind the method of dispatch which they have freely chosen. Second objection: without embarking on a study of the different legal systems of the Member States, we may defend grosso modo unforeseeable circumstances and force majeure as external events beyond the control of the person under the obligation, of a kind which that person could not foresee and the consequences of which he could not imagine. This is certainly not so where there is a delay of some days in the transmission of post which it is always wise to take into consideration and which can be avoided by allowing a sufficiently large margin of time. As the High Authority observed during the oral proceedings, the situation is in no may the same as that brought about by prolonged strikes or by natural disasters of the kind which have recently befallen Italy. It is not enough that the applicants, on whom it is incumbent by virtue of Article 39 of the EGSC Protocol to prove the existence of unforeseeable circumstances or of force majeure, simple to allege that the postal services were not working properly, without even enquiring whether it was the Italian or the Luvembourg service. I have therefore no hesitation in dismissing any idea of force majeure or unforeseeable circumstances in this case. However there remains a more delicate problem. The departments of the Court only received notice of the arrival at the customs of the two postal packets containing the applications on 3 May. They took delivery of them on 4 May, on which date the applications were entered in the register. But it is apparent from the information given by the customs administration that the packets arrived at Luvembourg railway station on Friday 30 April at 5 p.m., that is to say, the last day of the limitation period in the case of Simet, which had been notified of the contested decision on 20 March, on the day after the last day of the said period in the case of Feram, which received the decision concerning it on 19 March. Of these two dates, 30 April or 4 May, arrival in Luxembourg or entry in the Court register, which is to be adopted? In principle, it is the second date, according to Article 37 of the Rules of Procedure which provides that in the reckoning of time-limits for taking steps in proceedings the only relevant date shall be that of lodgment at the Registry. Attention was drawn to this in your judgment of 17 July 1959 in Joined Casts 36 to 41/58 (Rec, 1958 1959, p. 351) in order to dismiss the allegation of the Italian applicants that it was necessary to take account of the date of posting. In general the rule presents no difficulty since the application is normally transmitted either by the applicant himself or by the postal services as far as the Registry which has only to receive it and register it. But is the rule to be applied with the same strictness where, as in the present case, it is for the Court's own services to go themselves to collect the packet from the place where it is deposited as the result of customs or postal regulations? It is a fact that the applications had arrived in Luxembourg on 30 April and that, in theory at least, the appropriate department of the Court could have collected them and registered them on the same day. This is theoretical of course since this supposes that the department was informed immediately which, as you know, was not the case, but the mere possibility of this seems to me enough for it to be possible to dispense with too strict an application of the provisions of Article 37. Thus I am personally inclined to the view that the date of arrival of the applications in Luxembourg should be deemed in the present case to be the date of lodgment. This interpretation, which I acknowledge to be a generous one, means that the application of Simet is to be regarded as admissible but not, for the reason I have given, the application of Feram. It will not however enable me to dispense with an examination of the substance of the arguments of the latter company any more than with those of the former. I need not dwell for very long on two other objections put forward by the High Authority. The first only concerns Application 25/65 of Simet. The defendant points out that this application is expressly directed against the individual decision of 11 February 1965 imposing on the undertaking tone obligation to pay the sum of 252974228 lire whereas all the arguments and the submissions raised relate to the other decision of the same day fixing the basis of its assessment to contribution to the equalization scheme. This is true, but it is impossible to ignore the fact that the two decisions are closely connected, that the fixing of the amount due depends in particular on the determination of the assessable tonnage, as is pointed out in the contested decision which refers to the decision of the same day relating to the tonnage. In my view this would appear to justify, or at least to explain, the method adopted by the applicant. On the other hand, the High Authority says that the two undertakings request the annulment of general Decision No 7/63, relying on all the grounds set forth in the first paragraph of Article 33 of the Treaty, whereas for this purpose they were only entitled to rely on the ground of misuse of powers. The subject-matter indicated at the head of the two applications in fact includes the annulment of the general decision, but the conclusions which end them, although requesting you to say that the decision infringes an essential procedural requirement, infringes the Treaty and constitutes a misuse of powers, do not claim that it should be annulled. It therefore requires very little effort to regard these conclusions as intended in reality to have the decision declared inapplicable to the two applicants and to consider it as being based, in accordance with your case-law, on all the grounds set forth in the first paragraph of Article 33.