ORDER OF THE GENERAL COURT (Appeal Chamber)

28 May 2013

Case T‑130/13 P

Stephanie Honnefelder

v

European Commission

(Appeal — Civil service — Open competition — Non-inclusion on the reserve list — Time-limit for bringing an appeal — Delay — No unforeseeable circumstances or force majeure — Appeal manifestly inadmissible)

Appeal:      against the judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2012 in Case F‑42/11 Honnefelder v Commission [2012] ECR-SC, seeking to have that judgment set aside.

Held:      The appeal is dismissed. Ms Stephanie Honnefelder is to pay her own costs.

Summary

1.      Appeals — Time-limits — Mandatory — Consideration by the Court of its own motion

(Statute of the Court of Justice, Annex I, Art. 9, first para.; Rules of Procedure of the General Court, Arts 101(1)(a), 101(1)(b), 102(2) and 144)

2.      Appeals — Time-limits — Proceedings brought by fax — Period for lodging the signed original — Point from which time starts to run — Date of receipt of the fax and not date of expiry of the time-limit for bringing proceedings

(Statute of the Court of Justice, Annex I, Art. 9(1); Rules of Procedure of the General Court, Arts 43(6), 101(1)(a), 101(1)(b), 102(2), 138(1) and 144)

3.      Judicial proceedings — Time-limit for instituting proceedings — Claim barred by lapse of time — Unforeseeable circumstances or force majeure — Concept — Limits

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

1.      See the text of the decision.

(see paras 9-10)

See:

23 January 1997, 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; T‑283/09 P Aayhan and Others v Parliament, [2009] ECR-SC I‑B‑1-113 and II‑B‑1-695, para. 14

2.      Article 43(6) of the Rules of Procedure of the General Court, which applies to appeals against decisions of the Civil Service Tribunal by virtue of the last subparagraph of Article 138(1) of those Rules, provides that the date on which a copy of the signed original of a pleading reaches the Tribunal Registry by fax is not taken into account for the purpose of compliance with the time limits in proceedings, unless the signed original is lodged at the Registry no later than ten days after receipt of the fax.

It is impossible to accept an argument that the period of ten days laid down in Article 43(6) of the Rules of Procedure begins to run from the expiry of the period of two months and ten days which results from the first paragraph of Article 9 of Annex I to the Statute of the Court of Justice, Articles 101(1)(a) and 101(1)(b) of the Rules of Procedure of the General Court (which apply to appeals against decisions of the Civil Service Tribunal by virtue of Article 144 of the Rules) and Article 102(2) of those Rules, regardless of the date of receipt of the fax. In particular, where the fax is received more than 10 days before the expiry of the time-limit fixed for bringing an appeal before the General Court, the provisions of Article 43(6) of the Rules do not extend that time-limit.

(see paras 13, 17)

See:

C‑325/03 P Zuazaga Meabe v OHIM, [2005] ECR I‑403, para. 18

3.      The concepts of ‘unforeseeable circumstances’ or ‘force majeure’ within the meaning of the second paragraph of Article 45 of the Statute of the Court of Justice require there to be abnormal difficulties, independent of the will of the claimant and apparently inevitable, even if all due care is taken. Both concepts contain an objective element relating to abnormal circumstances unconnected with the person 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 person concerned must pay close attention to the course of the procedure set in motion and, amongst other things, act diligently in order to comply with the prescribed time-limits. Thus, the concept of force majeure does not apply to a situation in which, objectively, a diligent and prudent person would have been able to take the necessary steps before the expiry of the period prescribed for instituting proceedings.

A person who has decided to send the signed original appeal notice, together with the annexes and certified copies, to the Court Registry by means of a package given to a postal operator five days after lodging of the appeal by fax, finds himself in just such a situation. The fact that the operator may have breached an obligation to deliver the package within a certain time does not amount to unforeseeable circumstances or force majeure in relation to the person concerned.

(see paras 19, 23, 26)

See:

209/83 Ferriera Valsabbia v Commission, [1984] ECR 3089, para. 22; C‑195/91 P Bayer v Commission, [1994] ECR I‑5619, paras 31 and 32; Zuazaga Meabe v OHIM, supra, paras 18 and 25; C‑242/07 P Belgium v Commission, [2007] ECR I‑9757, para. 17