ORDER OF THE GENERAL COURT (Appeal Chamber)

12 December 2011

Case T‑365/11 P

AO

v

European Commission

(Appeal — Civil service — Officials — Time-limit for appeal — Late submission — Signed original of the appeal lodged out of time — Unforeseeable circumstances — Article 43(6) of Rules of Procedure of the General Court — Appeal manifestly inadmissible)

Appeal: against the order of the European Union Civil Service Tribunal (First Chamber) of 4 April 2011 in Case F‑45/10 AO v Commission seeking to have that order set aside.

Held: The appeal is dismissed. AO is to bear his own costs and pay those incurred by the European Commission.

Summary

1. Appeals — Time-limits — Mandatory

(Statute of the Court of Justice, Annex I, Art. 9, first para.; Rules of Procedure of the General Court, Art. 102(2))

2. Procedure — Time-limit for instituting proceedings — Claim barred by lapse of time — Unforeseeable circumstances or force majeure — Concept composed of objective and subjective elements

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

3. Procedure — Time-limit for instituting proceedings — Claim barred by lapse of time — Unforeseeable circumstances or force majeure — Definition — Error in the address attributable to a third party — Not included

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

1. Under the first paragraph of Article 9 of Annex I to the Statute of the Court of Justice, an appeal may be brought before the General Court, within two months of notification of the decision appealed against, inter alia, against final decisions of the Civil Service Tribunal. That time-limit for bringing proceedings is mandatory, since it was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice, and it is for the EU Courts to ascertain, of their own motion, whether it has been complied with.

(see paras 23, 24)

See:

C‑246/95 Coen [1997] ECR I‑403, para. 21

T‑121/96 and T‑151/96 Mutual Aid Administration Services v Commission [1997] ECR II‑1355, paras 38 and 39

2. In accordance with the second paragraph of Article 45 of the Statute of the Court of Justice, no derogation from the application of the 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. The concepts of force majeure and unforeseeable circumstances contain an objective element relating to abnormal circumstances unconnected with the party concerned 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 party concerned 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. Since it constitutes an exception to a finding of inadmissibility for failure to observe the time-limits for bringing an action, which are mandatory, the concept of unforeseeable circumstances must be invoked and demonstrated by the party who seeks to rely on it.

(see paras 31-33)

See:

C‑242/07 P Belgium v Commission [2007] ECR I‑9757, paras 16 and 17 and the case‑law cited

T‑40/07 P and T‑62/07 P de Brito Sequeira Carvalho v Commission and Commission v de Brito Sequeira Carvalho [2009] ECR‑SC I‑B‑1‑89 and II‑B‑1‑551, para. 205

3. So far as concerns the time-limits for bringing proceedings, the concept of unforseeable circumstances or force majeure enabling the justification of a derogation from mandatory time-limits for bringing proceedings, in accordance with Article 45 of the Statute of the Court of Justice, the responsibility for preparing, monitoring and checking procedural documents to be lodged at the General Court Registry rests with the party concerned and his legal representative. It is incumbent on them, inter alia, to monitor and check that the envelopes or packages containing such documents, and also the waybills affixed to them, have been correctly prepared and, in particular, correctly addressed to the General Court. It is also incumbent on the party concerned and his legal representative to monitor and check that any courier service providers which they may decide to use in order to dispatch those documents carry out their task correctly within the time‑limits agreed in the contract.

A mistake in the address arising from the fact that the appellant’s lawyer, in practice, delegated to the courier service provider the task of preparing the dispatch of the signed original of the appeal and, in particular, filling in itself the destination address on the group’s airway bill, thus taking a risk that there might be confusion between the different addresses appearing on the cover page of that original is therefore attributable to a lack of monitoring and checking on the part of the appellant’s lawyer and, hence, on the part of the appellant himself.

In that context, the fact that the mistake in the address results from the involvement of a third person, who was given authority by the appellant’s lawyer to prepare the dispatch of the signed original of the appeal to the General Court Registry, cannot be held to be an exceptional circumstance or an abnormal event unconnected to the appellant. It follows that such an error does not entitle the appellant to rely on unforeseeable circumstances.

(see paras 37, 39, 40, 44)

See:

C‑426/10 P Bell & Ross v OHIM [2011] ECR I‑8849, paras 48 to 50