Case T-468/10

Joseph Doherty

v

European Commission

(Action for annulment – Period allowed for commencing proceedings – Late submission – Absence of force majeure – Absence of excusable error – Manifest inadmissibility)

Summary of the Order

1.      Actions for annulment – Time-limits – Mandatory – Review by European Union courts of their own motion – Meaning

(Art. 263, sixth para., TFEU; Rules of Procedure of the General Court, Art. 102(2))

2.      Procedure – Time-limits for instituting proceedings – Calculation – Date and time of lodging at the Registry taken into account

(Protocol No 6 on the location of the seats of the institutions and of certain bodies, offices, agencies and departments of the European Union, annexed to the EU, FEU and ECSC Treaties, Sole Article; Rules of Procedure of the General Court, Arts 43(3) and 101(1)(a) and (b), and (2))

3.      Procedure – Time-limits for instituting proceedings – Claim barred by lapse of time – Unforeseeable circumstances or force majeure – Concept

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

4.      Procedure – Time-limits for instituting proceedings – Claim barred by lapse of time – Excusable error – Concept – Scope

1.      Under the sixth paragraph of Article 263 TFEU, proceedings for annulment are to be instituted within two months of the publication of the contested 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. That time-limit 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 Courts of the European Union must ascertain of their own motion whether that time-limit has been observed.

(see paras 10, 12)

2.      The time to be taken into account for the lodging of the application is the time recorded at the Court Registry. Since, under Article 43(3) of the Rules of Procedure, in the reckoning of time-limits for taking steps in proceedings only the date of lodgement at the Registry is to be taken into account, it must be held that only the time of lodgement at the Registry must be taken into account in the reckoning of time-limits. Since the Court of Justice of the European Union has its seat in Luxembourg, it is therefore appropriate to take account of Luxembourg time.

(see para. 16)

3.      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, in accordance with the second paragraph of Article 45 of the Statute of the Court of Justice, since the strict application of those rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice.

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. Specifically, 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 paras 18-19)

4.      An excusable error may, in exceptional circumstances, allow an applicant not to be out of time. The concept of excusable error must be strictly construed and 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 displaying all the diligence required of a normally well-informed trader.

That is not the case, even where the Registry did provide information by telephone on the procedure for lodging applications, since the applicant is required to comply with the provisions of the Rules of Procedure concerning the procedure for lodging applications and the applicable time-limits, which do not pose any particular difficulties of interpretation. In addition, it is not part of the duties and powers of the officials of the Registry to express an opinion on the reckoning of the time-limit for the commencement of an action. Nor can questions relating to the functioning and organisation of the applicant’s representative’s office excuse the lodging of the application out of time.

(see paras 27-30)