4.

Although Ferriera Vittoria has not expressly based its argument on the third paragraph of Article 39 of the Court of Justice of the ECSC in order to justify its delay in bringing its action, it might be considered that the circumstances relied upon by the applicant constitute “unforeseeable circumstances” or “force majeure” affording a defence to a plea that the action is time-barred. In my view, however, that defence may not be accepted. It is an established and undisputed fact that the Commission notified its decision by registered letter with an acknowledgement of receipt and that the acknowledgement, dated 21 July and signed on behalf of the addressee, was returned to it. ( 4 ) In this regard the status of the person who signed the acknowledgement hardly matters so long as he was — and the applicant does not deny this — “a person authorized for that purpose under the law of the country of destination”, which are the words used in the form of acknowledgement of receipt. Besides, the period for commencing proceedings cannot be made to start from the time when the addressee acquires actual knowledge of the Commission's decision. That would conflict with the mandatory nature of time-limits, since the commencement of the period would then depend on a very uncertain subjective factor and the principle of legal certainty, which constitutes the basis of the rules relating to time-limits, would thus be undermined. A further point which must be made is that the applicant has produced as an annex to its application a number of “credit notes” for refunds and discounts granted to certain customers on account of the poor quality of the products delivered. The notes dated 29 June and 26 July bear the stamp and signature of the person in charge of the undertaking (or of a person authorized to bind it financially). Finally, another credit note, which is unsigned but has also been produced by the applicant, bears the date 22 August 1983. Those documents are significant for two reasons. In the first place, they demonstrate that, although Ferriera Vittoria was being administered under the Cassa Integrazione Guadagni (Italian Law No 675 of 12 August 1977), it had retained its legal structure and personality. Its employees had not been dismissed and the company had not been wound up. It therefore had the legal capacity needed to lodge an appeal against the Commission's decision, ( 5 ) which indeed it did not fail to do in this case, whilst it was in an identical situation. In the second place, the credit notes show that the undertaking was in fact represented by a person who was authorized to sign such documents and who was a fortiori in a position to take cognizance of a registered letter sent by the Commission. Indeed, this is quite clear from the signature on the acknowledgement of receipt. As to the other circumstances to which Vittoria refers — the unexpected delivery of a letter which gave a short time in which to appeal and absence on holiday — neither appears to be independent of the will of the addressee. It must be pointed out in this regard that the Commission's decision concluded a procedure in which the applicant had the opportunity to submit its oral and written observations on the infringement with which it was charged. It must therefore have expected the Commission to impose the contested penalty upon it. In the result, it seems to me that the situation in which the undertaking finally found itself was directly caused by negligence or at the very least imprudence. Therein lies the explanation not only for its delay in bringing the action but also for a clear lack of diligence, since between 27 and 31 August 1983 it was still possible, by means of telex for example, to send an application to the Court. Therefore, to borrow the words used by the Court in its decision in the Bussent case (paragraph 13), 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.”