ORDER OF THE COURT OF FIRST INSTANCE (Second Chamber)
31 May 2006 (*)
(Action for annulment – Time-limits – Manifest inadmissibility)
In Case T-2/06,
Hani El Sayyed Elsebai Yusef, residing in the United Kingdom, represented by H. Miller, Solicitor, and S. Cox, Barrister,
applicant,
v
The Council of the European Union,
defendant,
APPLICATION for annulment of Article 2 of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2002 L 139, p.9), as amended by Commission Regulation (EC) No 1629/2005 of 5 October 2005 amending for the 54th time Council Regulation (EC) No 881/2002 (OJ 2005 L 260, p. 9),
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Second Chamber),
composed of: J. Pirrung, President, N. Forwood and S. Papasavvas, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts and procedure
1 By application lodged at the Registry of the Court of First Instance on 6 January 2006, the applicant brought this action.
2 On 23 December 2005, a copy of the application in question was received at the Registry by fax. The original of the application was only received on 6 January 2006.
3 By letter lodged at the Registry on 6 January 2006, the applicant explained that the original of the application was posted to the Court on 23 December 2005. However, a temporary secretary at the applicant’s solicitors’ office mistakenly sent the envelope in question by ordinary postal service, even though she had been instructed to send it by special guaranteed delivery, to ensure that it would arrive at the Court in time. Further, she did not place the correct postage on the envelope, which was subsequently returned for this reason by the postal service to the applicant’s solicitors’ office. Due to the Christmas period, the office was closed until 3 January 2006. When the office reopened on that date, the mistake was discovered and the envelope was correctly posted to the Court, where it arrived on 6 January 2006.
4 On the basis of the above facts, the applicant requested the Court to allow some discretion in the present case, enabling the applicant to continue with his application, taking into account the absence of any remedy available to him for the error in question and the dramatic effect of the contested Regulation on him.
5 By letter lodged at the Registry on 9 January 2006, the applicant submitted a witness statement of his solicitor, substantiating his allegations relating to the mistake in sending the original of the application.
Form of order sought by the applicant
6 The applicant claims that the Court should:
– annul Article 2 of Council Regulation (EC) No 881/2002;
– order the Council to pay the costs.
Law
7 Under Article 111 of the Rules of Procedure of the Court of First Instance, where the action is manifestly inadmissible the Court may, by reasoned order, without taking further steps in the proceedings, give a decision on the action.
8 Here, the Court considers that it has sufficient information from the documents in the file and decides, pursuant to that article, to give a decision without taking further steps in the proceedings.
9 According to Article 230(5) EC, annulment proceedings shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. Pursuant to Article 102(1) of the Rules of Procedure of the Court of First Instance, where the period of time allowed for commencing proceedings against a measure adopted by an institution runs from the publication of that measure, that period shall be calculated, for the purposes of Article 101(1)(a), from the end of the 14th day after publication thereof in the Official Journal of the European Union. By virtue of the provisions of Article 102(2), of the same rules, this time-limit shall be extended on account of distance by a single period of ten days.
10 In the present case, by virtue of Commission Regulation (EC) No 1629/2005 of 5 October 2005, amending for the 54th time Council Regulation (EC) No 881/2002, the applicant’s name was added to Annex I of Regulation 881/2002. Regulation 1629/2005 was published in the Official Journal of the European Union on 6 October 2005. It follows then that the time-limit for commencing annulment proceedings expired on 30 December 2005.
11 It is settled case-law that the time-limit prescribed for bringing actions under Article 230 EC is a matter of public policy and is not subject to the discretion of the parties or the Court, 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. Accordingly, it is the duty of the Community judicature to verify, of its own motion, that the time-limit is respected (see, in particular, judgment of the Court of Justice in Case C-246/95 Coen [1997] ECR I-403, paragraph 21, and judgment of the Court of First Instance in Joined Cases T‑121/96 and T‑151/96 Mutual Aid Administration Services v Commission [1997] ECR II‑1355, paragraphs 38 and 39).
12 Pursuant to Article 43(6) of the Rules of Procedure of the Court of First Instance, the date on which a copy of the signed original of a pleading is received at the Registry of the Court of First Instance by fax is taken into consideration, for the purposes of compliance with the procedural time-limits, only if the signed original of the pleading is lodged at the Registry no later than ten days thereafter.
13 Accordingly, the interpretation to the effect that that ten day period begins to run only from the date of expiry of the period of two months and ten days arising from the provisions of Article 230 EC in conjunction with Article 102(2) of the Rules of Procedure of the Court of First Instance, irrespective of the date of receipt of the fax, cannot be upheld. Thus, it has been held that where the faxed copy of an application is received more than ten days before the expiry of the time-limit fixed for bringing an action before the Court of First Instance, the provisions of Article 43(6) of the Rules of Procedure of the Court of First Instance do not extend that time-limit (order of the Court of Justice in Case C-325/03 P Zuazaga Meabe v OHMI [2005] ECR I-403, paragraph 18).
14 It follows from the foregoing that since the fax was received at the Registry on 23 December 2005 and the original of the application was not lodged at the Registry within ten days thereafter, the date of receipt of the fax cannot be taken into consideration.
15 Further, an applicant may not rely either on the inadequate functioning of its internal organization or on a failure to apply its own internal instructions in support of its claim that the error which it committed was excusable, or that there existed unforeseeable circumstances and force majeure (judgment of the Court of First Instance in Case T‑12/90 Bayer v Commission [1991] ECR II-219, paragraph 35, and judgment of the Court of Justice in Case C‑195/91 P Bayer v Commission ECR I‑5619, paragraph 33). That case law must be applied by analogy to the inadequate functioning of the internal organisation of a law firm representing an applicant.
16 In the present case, it is clear from the applicant’s arguments, as set out in his solicitor’s letter of 6 January 2006, that the applicant’s lawyers did not act with all the diligence required to ensure that the original of the application would arrive at the Registry no later than ten days from receipt of the fax. In these circumstances, it is clear that the conditions for the existence of excusable error, unforeseen circumstances or force majeure, such as to justify the failure to comply with the time-limit for initiating proceedings, are not fulfilled in this case.
17 It follows that the application, received at the Registry of the Court of First Instance on 6 January 2006, was registered after the expiry of the period of two months, extended by ten days on account of distance, and must accordingly be dismissed as inadmissible, without the need to serve it on the defendant.
Costs
18 Since this order has been made before the defendant was served with the application and before it could have incurred any costs, it is sufficient to order, pursuant to Article 87(1) of the Rules of Procedure, that the applicant must bear his own costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Second Chamber)
hereby orders:
1. The action is dismissed.
2. The applicant shall pay his own costs.
Luxembourg, 31 May 2006.