CELEX: 62011TO0365
Language: en
Date: 2011-12-12 00:00:00
Title: ORDER OF THE GENERAL COURT (Appeal Chamber) 12 December 2011.#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.#Case T‑365/11 P.

ORDER OF THE GENERAL COURT (Appeal Chamber)
      12 December 2011 (*)
      
      (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)
      In Case T-365/11 P,
      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 [2011] ECR-SC I-A-1-0000 and II-A-1-0000 seeking to have that order set aside,
      
      AO, a former official of the European Commission, residing in Brussels (Belgium), represented by P. Lewisch, lawyer,
      
      appellant,
      the other party to the proceedings being
      European Commission, represented by J. Currall and J. Baquero Cruz, acting as Agents,
      
      defendant at first instance
      THE GENERAL COURT (Appeal Chamber),
      composed of M. Jaeger, President, I. Pelikánová (Rapporteur) and L. Truchot, Judges,
      Registrar: E. Coulon,
      makes the following
      Order
      1        By his appeal brought under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellant,
         AO, requests the Court (i) to set aside the order of the European Union Civil Service Tribunal (First Chamber) of 4 April
         2011 in Case F-45/10 AO v Commission ECR-SC I-A-1-0000 and II-A-0000 (‘the order under appeal’), by which the Tribunal dismissed as being, in part, clearly inadmissible
         and, in part, clearly unfounded his action for annulment of the Commission’s decision of 23 July 2009 ordering that he should,
         by way of a disciplinary measure, be removed from his post without reduction to his entitlement to a retirement pension, with
         effect from 15 August 2009, and (ii) to order compensation to be paid for the psychological and professional harm suffered
         as a result of that decision.
      
       Background to the dispute
      2        The facts which gave rise to this dispute are set out, in paragraphs 6 to 19 of the order under appeal, in the following terms:
      
      ‘6      The applicant entered the employment of the Commission as a temporary staff member on 1 October 1995. After sitting an internal
         competition, he was appointed as a probationary official on 16 March 2003. After two extensions of his probationary period
         following problems relating to his conduct in the service, the applicant was established in his post with effect from 16 June
         2004.
      
      7      From 16 March 2003 to 14 April 2009 (“the period at issue”) the applicant was assigned to the Directorate-General for Research,
         within which he worked for a number of Units. At the time the decision to remove him from his post was adopted, he was classified
         at grade AD 10.
      
      8      During the period at issue, and in particular from May 2007, several incidents occurred involving the applicant and his superiors.
      9      On 5 October 2007 the appointing authority mandated the Investigation and Disciplinary Office of the Commission (IDOC) to
         hear the applicant, in accordance with Article 3 of Annex IX to the Staff Regulations, in order to determine whether, by reason
         of his behaviour since May 2007, he had breached the provisions of the Staff Regulations.
      
      10      On 19 December 2007 the applicant was heard by IDOC in accordance with Article 3 of Annex IX to the Staff Regulations. In
         light of the report on that hearing, and in order to find a constructive solution to the professional situation of the applicant,
         the appointing authority opted for the non-disciplinary internal procedure, called the “COMPAS procedure”, which provides
         for the application of an advisory structure of “coordination of psychological, administrative and social assistance”. However,
         as the applicant refused to participate in that procedure, the appointing authority decided, on 6 March 2008, to commence
         a disciplinary procedure before the Disciplinary Board, pursuant to Article 3(c)(ii) of Annex IX to the Staff Regulations,
         for breach of Articles 12 and 21 of the Staff Regulations.
      
      11      On 4 March 2008 the applicant submitted a request for transfer within the institution in accordance with Article 7(1) of the
         Staff Regulations, which request was rejected by memorandum of 4 June 2008. That refusal of requested transfer was not challenged
         and became final.
      
      12      On 15 April 2008 the applicant submitted a request for assistance on the ground of psychological harassment pursuant to Article
         24 of the Staff Regulations. 
      
      13      On 30 April 2008 the appointing authority decided to suspend the applicant for an indefinite period and to withhold EUR 1 000
         of his salary for six months, in accordance with Articles 23 and 24 of Annex IX to the Staff Regulations.
      
      14      The applicant was informed, by memorandum of 5 June 2008, that his request for assistance on the ground of harassment had
         been forwarded to the Disciplinary Board so that the Disciplinary Board could examine, in the context of the ongoing disciplinary
         procedure, the submissions set out in that request. The applicant did not challenge the memorandum of 5 June 2008, which therefore
         became final; and the Disciplinary Board considered the request for assistance on the ground of psychological harassment to
         be unfounded, as it found that the evidence submitted by the applicant did not establish the existence of such harassment.
      
      15      By letter of 7 August 2008, the applicant brought a complaint against the decision to suspend of 30 April 2008, pursuant to
         Article 90(2) of the Staff Regulations, which was dismissed by decision of 5 November 2008. The decision of 5 November 2008
         was not challenged.
      
      16      On 2 December 2008 the applicant was heard by the Disciplinary Board pursuant to Article 16 of Annex IX to the Staff Regulations.
         On 23 June 2009 he was heard by the appointing authority under Article 22 of that annex. On 23 July 2009, on the conclusion
         of the disciplinary proceedings, the appointing authority adopted the decision to remove the applicant from his post.
      
      17      On 29 October 2009 the applicant brought a complaint, pursuant to Article 90(2) of the Staff Regulations, against that decision.
      18      By letter of 1 December 2009, the applicant provided further information in relation to his complaint of 29 October 2009.
      19      By decision of 26 February 2010, the appointing authority rejected the applicant’s complaint.’
       Procedure at first instance and the order under appeal
      3        By application received at the Registry of the Civil Service Tribunal on 11 June 2010, the applicant sought, inter alia, annulment
         of the Commission’s decision of 23 July 2009 ordering that he should, by way of a disciplinary measure, be removed from his
         post without reduction to his entitlement to a retirement pension, with effect from 15 August 2009, and damages for psychological
         and professional harm suffered.
      
      4        By the order under appeal, adopted under Article 76 of its Rules of Procedure, the Civil Service Tribunal dismissed the action
         as being, in part, clearly inadmissible and, in part, clearly unfounded.
      
      5        The appellant’s lawyer received notification of the order under appeal on 8 April 2011.
      
       The appeal
       Procedure and forms of order sought
      6        By document received at the Registry of the General Court by fax on 20 June 2011, the last day of the time-limit for appeal
         laid down in the first paragraph of Article 9 of Annex I to the Statute of the Court of Justice, the appellant brought the
         present appeal.
      
      7        On 28 June 2011, that is to say, two days before the expiry of the 10-day time-limit laid down in Article 43(6) of the Rules
         of Procedure for lodging the signed original of the appeal, the Registry of the General Court telephoned the appellant’s lawyer
         to inform him that the signed original of the appeal sent by fax had still not reached the Court Registry. The appellant’s
         lawyer stated that he had entrusted that original to a courier service provider on the same day as it had been sent by fax,
         namely 20 June 2011, and that that original would reach the Registry before the 10-day time-limit expired.
      
      8        On 30 June 2011 the 10-day time-limit expired without the signed original of the appeal having reached the Registry of the
         General Court.
      
      9        By letter received at the Registry of the General Court on 1 July 2011, the appellant’s lawyer explained why he considered
         that, in the circumstances of the case, the failure to comply with the 10-day time-limit was due to unforeseeable circumstances
         within the meaning of the first paragraph of Article 9 of Annex I to the Statute of the Court of Justice, read in conjunction
         with the second paragraph of Article 45 of that Statute. He claimed inter alia that the package had been wrongly addressed
         by the courier service provider responsible for preparing the dispatch of the signed original of the appeal to the Court Registry
         (see paragraph 38 below), and that the international group specialising in the provision of courier services to which that
         provider belongs had delayed delivering that original to the Court Registry once the mistake in the address had been corrected.
         As an attachment to his letter the appellant’s lawyer provided various documents to support his explanations.
      
      10      By letter received at the Court Registry on 4 July 2011, the appellant’s lawyer repeated his explanations and provided a ‘second
         original’ of the appeal. Finding that that document did not correspond to the signed original of the appeal which had been
         sent to it by fax, the Court Registry refused to register it.
      
      11      On 5 July 2011 the signed original of the appeal sent by fax reached the Court Registry, which registered it.
      
      12      On 28 July 2011 the President of the General Court decided to serve on the European Commission both the appeal and the letters
         of 1 and 4 July 2011. It also decided to invite the Commission to submit observations by 23 August 2011 on the existence of
         unforeseeable circumstances in the present case.
      
      13      By letter received at the Court Registry on 30 August 2011, the Commission stated that, in order to determine whether the
         mistake in the address was in fact attributable to the courier service provider, it was necessary to check whether the address
         on the envelope or the box which contained the original of the appeal was that of the General Court or that of the appellant,
         since in the latter case the mistake would be the appellant’s. It also stated that it was necessary to verify the content
         of the contract or form signed by the appellant with the courier service provider. In addition, the Commission asked the Court
         to suspend the proceedings until the latter had settled the issue of whether the appeal was admissible since it had been lodged
         out of time.
      
      14      On 7 September 2011 the President of the General Court decided to place the Commission’s reply on the file and to obtain the
         appellant’s observations on the Commission’s request to suspend the proceedings.
      
      15      On 7 October 2011, the Commission lodged its defence.
      
      16      On 18 October 2011 the appellant lodged at the Court Registry his observations on the Commission’s request to suspend the
         proceedings.
      
      17      By decision of 28 October 2011, the President of the Court refused to allow the appeal and the defence to be supplemented
         by a reply and a rejoinder, in accordance with Article 143(1) of the Rules of Procedure.
      
      18      By letter received at the Court Registry on 30 November 2011, the appellant lodged a reasoned application under Article 146
         of the Rules of Procedure to be heard in the oral stage of the procedure. 
      
      19      The appellant claims, in essence, that the Court should:
      
      –        set aside the order under appeal;
      –        if appropriate, grant the form of order he sought at first instance;
      –        grant him symbolic damages of one euro in compensation for the psychological and professional damage suffered;
      –        order the Commission to pay the costs.
      20      The Commission contends that the Court should:
      
      –        dismiss the appeal as manifestly inadmissible;
      –        in the alternative, reject the appeal as manifestly inadmissible in part and manifestly unfounded in part;
      –        in the further alternative, dismiss the appeal as manifestly unfounded;
      –        order the appellant to pay the costs. 
       Law
      21      Pursuant to Article 145 of its Rules of Procedure, where an 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, by reasoned order dismiss it in whole
         or in part, without opening the oral procedure.
      
      22      In this instance, although the appellant has made an application for a hearing to be held, the General Court considers that
         it has sufficient information from the documents in the file and has decided, pursuant to that article, to give judgment without
         taking further steps in the proceedings.
      
      23      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. Under Article 102(2) of the Rules of Procedure, the prescribed time-limits are to be extended
         on account of distance by a single period of 10 days.
      
      24      It is settled case-law that that time-limit for bringing an appeal is a matter of public policy 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 the European Union Court must ascertain of its own motion whether that time-limit was observed (see, by analogy,
         Case C-246/95 Coen [1997] ECR I-403, paragraph 21, and Joined Cases T-121/96 and T-151/96 Mutual Aid Administration Services v Commission [1997] ECR II-1355, paragraphs 38 and 39).
      
      25      In the present case, as was stated in paragraph 5 above, the appellant received notification of the order under appeal on
         8 April 2011.
      
      26      It is clear from the rules for calculating the time-limits for commencing proceedings laid down in Article 101(1)(a) and (b)
         and Article 102(2) of the Rules of Procedure that the time-limit for bringing an appeal expired on 18 June 2011. Since that
         day was a Saturday, the time-limit for bringing an appeal must be regarded as having expired on Monday, 20 June 2011, in accordance
         with Article 101(2) of the Rules of Procedure.
      
      27      The text of the appeal was received at the Court Registry by fax on 20 June 2011, that is to say, the last day of the time-limit
         for bringing an appeal and thus before the expiry of that time-limit.
      
      28      However, pursuant to Article 43(6) of the Rules of Procedure, the date on which a copy of the signed original of a pleading
         is received at the Registry of the General Court by fax is taken into consideration, for the purposes of compliance with time-limits
         for commencing proceedings, only if the signed original of the pleading is lodged at the Registry no later than 10 days thereafter.
      
      29      In the present case, the signed original of the appeal was received at the Court Registry on 5 July 2011, that is to say,
         after the expiry of the 10-day period laid down in Article 43(6) of the Rules of Procedure. According to that provision, only
         the date of lodgement of the signed original of the appeal, that is to say 5 July 2011, can be taken into consideration for
         the purposes of the time-limit within which an appeal must be brought. Accordingly, it must be held that the appeal was lodged
         out of time.
      
      30      In his letters of 1 and 4 July 2011, the appellant’s lawyer claimed the existence of unforeseeable circumstances as justification
         for a derogation from the time-limit at issue.
      
      31      In that regard, it should be noted that the strict application of those procedural rules serves the requirements of legal
         certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice. 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 (see, to that effect, order of the Court of 8 November 2007 in Case C-242/07 P Belgium v Commission [2007] ECR I-9757, paragraph 16 and the case-law cited). 
      
      32      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 (see order in Belgium v Commission, paragraph 31 above, paragraph 17 and the case-law cited).
      
      33      Since it constitutes a plea of inadmissibility resulting from failure to comply with time-limits for bringing an appeal, which
         is a matter of public policy, the concept of unforeseeable circumstances must be raised and argued by the party who seeks
         to benefit under it (see, to that effect and by analogy with the concept of excusable error, Joined Cases 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-1-0000 and II-B-1-0000, paragraph 205).
      
      34      In the present case, the appellant’s lawyer relied, in his letters of 1 and 4 July 2011, on the fact that the courier service
         provider to which he had entrusted the signed original of the appeal on 20 June 2011 to be delivered to the Court Registry,
         had mistakenly sent it to an address in Brussels. It was not until the morning of 28 June 2011 that he was notified of this
         mistake on the part of the courier service provider and the latter confirmed that delivery would be possible, to the correct
         address of the Court Registry in Luxembourg, on 29 June 2011. On 30 June 2011, however, at around midday he was informed that
         the delivery status of the item dispatched was unclear, and at around 17.00 hours that the delivery of the signed original
         of the appeal to the Court Registry was most probably not possible that day. Despite close monitoring of the status of delivery
         through contact with the courier service provider and its group of companies, the appellant’s lawyer could not arrange for
         the signed original of the appeal to be delivered before 5 July 2011. The appellant’s lawyer thus claimed that the mistake
         in the addressing of the signed original of the appeal and the delay in delivering it to the Court Registry once that mistake
         was corrected were attributable to the involvement of third parties, namely the relevant companies that he had used within
         the courier service provider’s group of companies. He also denied all negligence in so far as he had never before encountered
         any reliability problems with that courier service provider, which is the one he normally used to dispatch such items, and
         he had done everything possible to ensure that the signed original of the appeal would be lodged at the Court Registry within
         the time-limit. 
      
      35      The Commission contends that the statements by the director of the courier service provider, in which he acknowledges that
         his company alone was responsible for the mistake in the address, are not sufficient, in the circumstances of this case, to
         conclude that there were unforeseeable circumstances. First of all, the underlying cause of the delay in delivering the signed
         original of the appeal is not that mistake in the address but the appellant’s choice to exhaust the whole of the period for
         bringing proceedings that was available to him, including the 10-day extension on account of distance provided for in Article
         43(6) of the Rules of Procedure. Also, the statement from the courier service provider does not enable the appellant to be
         exonerated from all responsibility for lodging the signed original of the appeal out of time. First, that statement cannot
         be considered to be ‘objective and conclusive evidence’ in view of the long-standing business relationship between that company
         and the appellant’s lawyer. Secondly, it is apparent from the documents before the Court that the underlying cause of the
         delay in delivering the signed original of the appeal was the inadequate or ambiguous nature of the delivery instructions
         given by the appellant or his legal representative to the courier service provider and/or failure by the former to check and
         double check the address which the latter put on the waybill. In any event, the delay is attributable to failure by the appellant
         or his legal representative to check and double check that the item dispatched was being properly shipped by the courier service
         provider, within the scheduled time-limits, via the electronic tracking system available on the website of the service provider’s
         group of companies.
      
      36      As the Commission rightly states, the appellant has not demonstrated the existence of exceptional circumstances in this case,
         or provided proof of the diligence required of a normally experienced trader within the meaning of the case-law recalled in
         paragraph 32 above.
      
      37      It should be noted that the responsibility for preparing, monitoring and checking procedural documents to be lodged at the
         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 in Luxembourg. 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 (see, to that effect
         and by analogy, with regard to the involvement of a provider of copying services, Case C-426/10 P Bell & Ross v OHIM [2011] ECR I-0000, paragraphs 48 to 50).
      
      38      It is apparent from the documents before the Court and in particular from the letter from the director of the courier service
         provider of 1 July 2011, annexed to the letter from the appellant’s lawyer of 1 July 2011, that it is ‘[by] mistake [that
         the courier service provider] put the wrong destination address in the [group’s] airway bill – not the one given on the top
         of the cover letter (General Court of the European Union, Luxemburg) but instead the name and address stated as subject of
         the cover letter (AO, [confidential](1) [Brussels,] Belgium)’. The courier service provider’s mistake in the address therefore arose from confusion between the different
         addresses appearing on the cover page of the signed original of the appeal and, specifically, between the address of the General
         Court in Luxembourg and the appellant’s address in Brussels.
      
      39      The only reason that mistake was possible was because the appellant’s lawyer 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. That mistake 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.
      
      40      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, cannot be held
         to be an exceptional circumstance or an abnormal event unconnected to the appellant.
      
      41      In any event, from the documents before the Court and, in particular, from the abovementioned letter from the director of
         the courier service provider (see paragraph 38 above), from the statement by a colleague of the appellant’s lawyer of 1 July
         2011, from the print-out of 1 July 2011 of the page tracking the delivery on the website of the courier service provider’s
         group of companies, annexed to the letter from the appellant’s lawyer of 1 July 2011, and from the letters from the appellant’s
         lawyer of 1 and 4 July 2011, the following information emerges: the signed original of the appeal was handed to the courier
         service provider on 20 June 2011 for the latter to prepare for express dispatch, by registered mail with proof of delivery,
         by that provider’s group of companies; it was dispatched with tracking number 1ZA70586D950779748 in the electronic tracking
         system available via the website of the group of companies to which the courier service provider belongs; that group guaranteed
         delivery the next working day; the appellant’s lawyer did not monitor or check the state of progress of the dispatch until
         28 June 2011, the date on which he was informed by the courier service provider and by the Court Registry that the item dispatched
         had still not been delivered, and that rerouting it to the General Court had been delayed by the need for a decision to be
         reached within the courier service provider’s group of companies on whether it was possible to redirect an item from one third
         country, to which it had been sent by mistake, to another third country, in this case from Belgium to Luxembourg.
      
      42      The length of time needed to deliver the signed original of the appeal to the Court Registry once the courier service provider’s
         mistake in the address had been corrected is therefore a direct consequence of that mistake, since logistical and organisational
         issues involved in correcting it had to be resolved that required a decision to be taken within the courier service provider’s
         group of companies.
      
      43      Moreover, it is apparent from the documents before the Court, in particular from the letters from the appellant’s lawyer of
         1 and 4 July 2011, that since 22 June 2011 the latter had not monitored and checked, either with the Court Registry or via
         the electronic tracking system available on the website of the courier service provider’s group of companies, that that service
         provider and the group to which it belonged had carried out their task correctly within the time-limits agreed in the contract.
         Similarly, it is not evident from the documents before the Court that between 22 and 29 June 2011 the appellant or his legal
         representative had been concerned that they had not received proof of delivery of the item they had dispatched. Such monitoring
         or checking, which could have been done relatively easily, would have enabled the appellant or his legal representative to
         establish well before 28 June 2011 that the item in question had not reached the Court Registry in Luxembourg on 21 June 2011.
         Furthermore, it would have enabled them to find out that the signed original of the appeal had been sent by mistake to an
         address in Brussels, Belgium, where it was still awaiting delivery. In view of the time-limit for lodging the signed original
         of the appeal at the Court Registry, it seems probable that, if the appellant or his legal representative had reacted on 22 June
         2011, once the mistake in the address had been corrected, the time-limit laid down in Article 43(6) of the Rules of Procedure
         could have been met.
      
      44      Therefore, in the circumstances of the present case, the mistake in addressing the signed original of the appeal and the delay
         in delivering it to the Court Registry once that mistake had been corrected cannot be held to be an exceptional circumstance
         or an abnormal event unconnected to the appellant or his legal representative that would establish the existence of an unforeseeable
         circumstance as regards the appellant. The appellant has not shown that he was not in any way responsible, through his legal
         representative, for the mistake in the addressing of the signed original of the appeal and for the delay in delivering it
         to the Court Registry once that mistake had been corrected.
      
      45      It is clear from all the above considerations that the appeal has been brought out of time and that, without its being necessary
         to rule either on the Commission’s request for suspension of the proceedings or on its request for the production of documents
         and checks, the appeal must be dismissed as manifestly inadmissible.
      
       Costs
      46      Under the first subparagraph of Article 87(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of
         Article 144 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      Since the appellant has been unsuccessful in his pleadings and the Commission has applied for costs, the appellant must be
         ordered to bear his own costs and those incurred by the Commission.
      
      On those grounds,
      THE GENERAL COURT (Appeal Chamber)
      hereby orders:
      1.      The appeal is dismissed;
      2.      AO shall bear his own costs and those incurred by the European Commission.
      Luxembourg, 12 December 2011.
      
               E. Coulon
            
             
            
                     M. Jaeger
            
         
               Registrar
            
             
            
                     President
            
         * Language of the case: English.
      
      1 – Confidential information obscured.