ORDER OF THE VICE-PRESIDENT OF THE COURT

5 July 2018 ( )

[Text rectified by order of 20 July 2018]

(Appeal — Intervention — Application to intervene made after the period of six weeks laid down in Article 143(1) of the Rules of Procedure of the General Court — Admissibility — Article 47 of the Charter of Fundamental Rights of the European Union — Article 129(4) of the Rules of Procedure of the Court of Justice — Article 45 of the Statute of the Court of Justice of the European Union — Force majeure — Excusable error)

In Case C‑187/18 P(I),

APPEAL under the first paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 12 March 2018,

Ute Müller, residing in Brussels (Belgium),

Anna Colombo, residing in Brussels,

Utta Tuttlies, residing in Brussels,

Michael Hoppe, residing in Brussels,

represented by D.O. Reich, Rechtsanwalt,

appellants,

the other parties to the proceedings being:

QH, residing in Woluwé-Saint-Pierre (Belgium), represented by N. Lhoëst and S. Michiels, avocats,

applicant at first instance,

European Parliament, represented by M. Ecker and Í. Ní Riagáin Düro, acting as Agents,

defendant at first instance,

THE VICE-PRESIDENT OF THE COURT,

after hearing the Advocate General, M. Wathelet,

makes the following

Order

1 By their appeal, Ute Müller, Anna Colombo, Utta Tuttlies and Michael Hoppe seek to have set aside the order of the President of the First Chamber of the General Court of the European Union of 22 February 2018, QH v Parliament (T‑748/16, not published, ‘the order under appeal’, EU:T:2018:104), by which the General Court dismissed their application to intervene in support of the form of order sought by the European Parliament, the defendant at first instance in Case T‑748/16, concerning the action brought by QH seeking, first, the annulment of the Parliament’s decision of 26 January 2016 rejecting his request for assistance and the Parliament’s decision of 12 July 2016 rejecting his complaint, and, secondly, compensation for the harm he claims to have suffered.

2 Furthermore, the appellants ask the Court to grant their application to intervene at first instance and to order the exchequer to pay the costs they have incurred both at first instance and in the present appeal proceedings.

3 By letter of 19 March 2018, the Parliament indicated that it had no objection to the appeal.

4 By his observations lodged at the Court Registry on 3 April 2018, QH contends that the appeal should be dismissed and that the appellants should be ordered to pay the costs.

The order under appeal

5 By the order under appeal, the President of the First Chamber of the General Court dismissed the appellants’ application to intervene in support of the Parliament’s conclusions in Case T‑748/16.

6 Pursuant to Article 143(1) of the Rules of Procedure of the General Court, an application to intervention must be submitted within six weeks of the publication referred to in Article 79 of those Rules, in this case on 23 January 2017.

7 In the present case, the application to intervene was submitted on 24 January 2018, which is after the expiry of that period.

The appeal

Arguments of the parties

8 At the outset, the appellants point out that, in his application at first instance, QH, who worked in the Parliament, accused them of having treated him inappropriately, of not acknowledging his professional role and of blocking his career. The appellants have a legitimate interest in intervening before the General Court, in support of the Parliament, in order in particular to defend their reputation.

9 While acknowledging, in essence, that they did not submit their application to intervene until after the expiry of the six-week period laid down in Article 143(1) of the Rules of Procedure of the General Court, the appellants claim that that period should not have been applied in the present case and that that application should therefore have been allowed by the General Court.

10 The appellants claim, principally, that their interest in intervening in the proceedings at first instance only became apparent after the expiry of that period, following the transmission to QH, without their agreement, of an unredacted version of certain confidential documents exchanged with their lawyers as well as documents mentioning their names and containing defamatory accusations likely to have far-reaching negative consequences for them.

11 Disclosure of those documents to QH in their confidential version, it is claimed, infringes the combined provisions of Articles 91 and 103 of the Rules of Procedure of the General Court and the confidentiality of correspondence between a lawyer and his client. The appellants claim, in essence, that they have an interest in intervening at first instance in order to have access to the file of the proceedings, to assert their right to confidential treatment of those documents and to prevent confidential information being mentioned in the judgment to be delivered by the General Court in the present case.

12 The appellants claim, in essence, first, that the six-week period laid down in Article 143(1) of that regulation does not apply in such circumstances. That period, it is claimed, applies only where the interest in intervening appears before the expiry of that period, which is not the case here.

13 Secondly, the intervention of the appellants should be allowed in order to guarantee respect for their right to effective judicial protection, enshrined, inter alia, in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). In that regard, the appellants claim that an action for damages brought after the judgment of the General Court is delivered is insufficient to ensure that that requirement is satisfied.

14 In the third place, the appellants claim that Article 129(4) of the Rules of Procedure of the Court of Justice should be applied by analogy, and which provides that an application to intervene lodged after the expiry of the six-week period laid down in Article 130 of that regulation, but before the decision to open the oral phase of the procedure, may be taken into consideration.

15 In the alternative, the appellants submit, in essence, that the transmission to QH of the documents referred to in paragraph 10 of the present order is an unforeseeable and unavoidable circumstance. Pursuant to Article 19 TEU, Article 281 TFEU and the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, the expiry of the period laid down in Article 143(1) of the Rules of Procedure of the General Court, which is due to an excusable error, cannot be invoked against them. However, the General Court did not respond to that argument in the order under appeal.

16 QH considers that all the appellants’ arguments must be rejected.

Findings of the Court

17 It is indicated in the appeal that the appellants claim that, although it had been submitted after the expiry of the six-week period laid down in Article 143(1) of the Rules of Procedure of the General Court, their application to intervene should have been allowed. In that regard, they rely, in essence, on two grounds of appeal, the first, which is the main ground, alleging infringement of that provision and of Article 47 of the Charter and the application, by analogy, of Article 129(4) of the Rules of Procedure of the Court of Justice and, the second, in the alternative, alleging, first, a failure to state reasons for the order under appeal and, secondly, the existence of unforeseeable and unavoidable circumstances and an excusable error.

18 As regards the first ground of appeal, this must be rejected as unfounded without it being necessary to rule on its admissibility.

19 The time limit laid down in Article 143(1) of the Rules of Procedure of the General Court is a matter of public policy and is not within the discretion either of the parties or indeed that of the court (see, by analogy, order of 29 November 2017, Società agricola Taboga Leandro e Fidenato Giorgio v Parliament and Council, C‑467/17 P, not published, EU:C:2017:916, paragraph 15).

20 In that regard, the strict application of the European Union’s rules on procedural time limits serves the requirements of legal certainty and the need to avoid discrimination or arbitrary treatment in the administration of justice (judgment of 23 April 2013, Gbagbo and Others v Council, C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraph 71 and the case-law cited).

21 Accordingly, it follows from the case-law of the Court of Justice that no derogation from the application of those rules 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 of the European Union (judgment of 12 July 1984, Ferriera Valsabbia v Commission, 209/83, EU:C:1984:274, paragraph 14, and order of 8 November 2007, Belgium v Commission, C‑242/07 P, EU:C:2007:672, paragraph 16 and the case-law cited).

22 Consequently, in the absence of such circumstances, the fact, assuming it is plausible and established, that the appellants’ interest in intervening became apparent after the expiry of the six-week period, laid down in Article 143(1) of the Rules of Procedure of the General Court, cannot justify disapplying that time limit.

23 Accordingly, the appellants’ arguments based on the existence of such an interest in intervening, which are set out in paragraphs 10 and 11 of the present order, must be rejected as ineffective in so far as they cannot result in the contested order being set aside.

24 In so far as the appellants argue, in essence, that the rejection of their application to intervene breached Article 47 of the Charter, it must be observed that, according to the settled case-law of the Court, that article is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to procedural time limits laid down by EU legislation (see, to that effect, order of 29 November 2017, Società agricola Taboga Leandro e Fidenato Giorgio v Parliament and Council, C‑467/17 P, not published, EU:C:2017:916, paragraphs 27 to 30 and the case-law cited)

25 Furthermore, the right to effective judicial protection is in no way undermined by the strict application of those rules (orders of 21 September 2012, Noscira v OHIM, C‑69/12 P, not published, EU:C:2012:589, paragraph 34, and of 2 October 2014, Page Protective Services v EEAS, C‑501/13 P, not published, EU:C:2014:2259, paragraph 39 and the case-law cited; judgment of 18 June 2015, Ipata v Council, C‑535/14 P, EU:C:2015:407, paragraph 14).

26 Furthermore, the appellants’ argument that Article 129(4) of the Rules of Procedure of the Court of Justice should be applied by analogy, which provides for the possibility of allowing an application to intervene lodged after the expiry of the six-week period laid down in Article 130(1) of those rules but before the decision to open the oral procedure provided for in Article 60(4) thereof, must be rejected.

27 In that respect, it should be noted that such a possibility was provided for in Article 115(1), in conjunction with Article 116(6) of the Rules of Procedure of the General Court of 2 May 1991, as amended on 19 June 2013. However, Article 143 of the new Rules of Procedure of the General Court, which is worded in clear and unconditional terms, specifically did not take up that possibility, so that it cannot be applied by analogy.

28 In the light of the foregoing considerations, the first ground of appeal must be rejected.

29 As regards the second ground of appeal, however, it must be pointed out, first, that, in the context of the appeal, the purpose of review by the Court of Justice is, inter alia, to consider whether the General Court addressed, to the requisite legal standard, all the arguments raised by the appellant. Secondly, the ground of appeal alleging that the General Court failed to respond to arguments relied on at first instance amounts, essentially, to pleading a breach of the obligation to state reasons which derives from Article 36 of the Statute of the Court of Justice, applicable to the General Court by virtue of the first paragraph of Article 53 of that Statute, and from Article 117 of the Rules of Procedure of the General Court (judgment of 9 March 2017, Ellinikos Chrysos v Commission, C‑100/16 P, EU:C:2017:194, paragraph 31 and the case-law cited).

30 In addition, whereas the obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one-by-one all the arguments put forward by the parties, and the General Court’s reasoning may therefore be implicit, that is on the condition that that reasoning enables the persons concerned to know why it has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, to that effect, judgment of 9 March 2017, Ellinikos Chrysos v Commission, C‑100/16 P, EU:C:2017:194, paragraph 32 and the case-law cited).

31 In the present case, as the appellants argue, the General Court did not reply to the their arguments put forward at first instance, that the submission of their application to intervene after the expiry of the period laid down in Article 143(1) of the Rules of Procedure of the General Court is due to unforeseeable and unavoidable circumstances and to an excusable error, so that this application should be declared admissible in accordance with Article 19 TEU, Article 281 TFEU and the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union.

32 Accordingly, the order under appeal is vitiated by a failure to state reasons and must, for that reason, be set aside.

[As rectified by order of 20 July 2018] On the application to intervene before the General Court

33 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court may, after quashing a decision of the General Court, refer the case back to the General Court for judgment or, where the state of the proceedings so permits, itself give final judgment in the matter.

34 In the present case, the Court must give final judgment on the appellants’ application to intervene.

35 It is common ground that that application was submitted after the expiry of the six week time limit provided in Article 143(1) of the Rules of Procedure of the General Court.

36 The appellants submit, however, that the application must exceptionally be granted. To that end, they raised, in essence, two grounds of appeal, for the most part repeating the arguments set out in paragraphs 8 to 15 of the present order.

37 As regards the first ground of appeal, which essentially repeats the arguments set out in paragraphs 10 to 14 of the present order, this must be rejected, for the reasons set out in paragraphs 18 to 28 hereof.

38 As regards the second ground of appeal, which essentially reiterates the arguments set out in paragraph 15 of the present order concerning the existence of unforeseeable and unavoidable circumstances and an excusable error, it is necessary, first, to point out that, under Article 45 of the Statute of the Court of Justice of the European Union, 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.

39 However, without it being necessary to determine whether that provision also applies to the six-week period laid down in Article 143(1) of the Rules of Procedure of the General Court, it should be noted that, according to settled case-law, the concept of force majeure or unforeseeable circumstances, which corresponds to exceptional circumstances, contains both an objective element relating to abnormal circumstances extraneous to the person concerned, and a subjective element involving the obligation of that person concerned to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices (see, to that effect, order of 8 November 2007, Belgium v Commission, C‑242/07 P, EU:C:2007:672, paragraph 17, and judgment of 22 September 2011, Bell & Ross v OHIM, C‑426/10 P, EU:C:2011:612, paragraph 48). It is for the person relying on force majeure to prove the existence thereof (see, to that effect, judgment of 17 October 2002, Parras Medina, C‑208/01, EU:C:2002:593, paragraph 21).

40 In the present case, the appellants argue, in essence, that the decision of the General Court to order the production and transmission to the parties at first instance of the documents referred to in paragraph 10 of the present order, pursuant to Article 91(b) of its Rules of Procedure, without treating those documents as confidential, in accordance with Article 103 of those Rules, constitutes an unforeseeable and unavoidable circumstance.

41 However, irrespective of the merits of that decision of the General Court and of whether that circumstance might have given rise to an interest on the part of the appellants to intervene, as they claim, it must be pointed out that the adoption of such a decision, although beyond the control of the appellants, cannot be regarded as abnormal within the meaning of the case-law cited in paragraph 39 of the present order, since the General Court has merely applied the provisions of its Rules of Procedure. In those circumstances, the appellants have not established the existence of force majeure.

42 Secondly, in so far as the appellants rely on an excusable error, it should be recalled that that concept, which must be strictly construed, can concern only exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally experienced person (order of 14 January 2010, SGAE v Commission, C‑112/09 P, EU:C:2010:16, paragraph 20; judgment of 22 September 2011, Bell & Ross v OHIM, C‑426/10 P, EU:C:2011:612, paragraph 47; and order of 21 September 2012, Noscira v OHIM, C‑69/12 P, not published, EU:C:2012:589, paragraph 38).

43 However, Article 143(1) of the Rules of Procedure of the General Court is worded in clear and unconditional terms, which leave no room for difficulty of interpretation. Furthermore, the appellants have in no way established the existence of conduct on the part of the General Court such as to give rise to any confusion concerning the assessment of the time limit provided for in that provision. In those circumstances, the applicants have not demonstrated that they have committed an excusable error.

44 In the light of the foregoing considerations, the second ground of appeal must therefore be rejected as unfounded.

45 Since none of the arguments put forward by the appellants justify granting their application to intervene after the expiry of the six-week period laid down in Article 143(1) of the Rules of Procedure of the General Court, that application should be rejected as inadmissible.

Costs

46 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs. Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

47 As regards the costs relating to the appeal proceedings, it should be noted that, while the second ground of appeal was allowed, the first was not. Moreover, the appellants did not formally request that QH be ordered to pay the costs, but that the exchequer be ordered to pay the costs. It must therefore be ordered that the appellants, on the one hand, and QH, on the other, are to bear their own costs.

48 As regards the costs relating to the proceedings at first instance, it must be noted that the contested order was adopted without notice of the application to intervene having been served on the parties in Case T‑748/16, who therefore did not bear any costs relating to those proceedings. The appellants, whose application to intervene has been rejected, must therefore be ordered to bear their own costs in those proceedings.

On those grounds, the Vice-President of the Court hereby orders:

1. The order of the President of the First Chamber of the General Court of the European Union of 22 February 2018, QH v Parliament (T‑748/16, unpublished, EU:T:2018:104) is set aside.

2. The application to intervene in Case T‑748/16 submitted by Ute Müller, Anna Colombo, Utta Tuttlies and Michael Hoppe is dismissed.

3. Ute Müller, Anna Colombo, Utta Tuttlies and Michael Hoppe are to bear their own costs both in the appeal proceedings and in the proceedings at first instance.

4. QH is to bear his own costs relating to the appeal proceedings.





Luxembourg, 5 July 2018.





A. Calot Escobar A. Tizzano