ORDER OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

27 April 2009

Case T-272/08 P

R

v

Commission of the European Communities

(Appeal – Civil service – Officials – Time-limit for appeal – Start date for limitation period – Lateness – Appeal manifestly inadmissible)

Appeal: brought against the order of the European Union Civil Service Tribunal (First Chamber) of 6 March 2008 in Case F-105/07 R bis v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000, seeking to have that order set aside.

Held: The appeal is dismissed as manifestly inadmissible. R is ordered to pay his own costs.

Summary

1.      Procedure – Service – Service by fax – Malfunction of addressee’s fax machine – Use of postal service notified by telephone

(Rules of Procedure of the Civil Service Tribunal, Art. 99(1), first indent, and (2))

2.      Procedure – Service – Service by fax – Malfunction of addressee’s fax machine – Use of postal service not notified by telephone

(Rules of Procedure of the Civil Service Tribunal, Art. 35(4))

3.      Procedure – Service – Service by post – Irrefutable presumption created by Article 99(2) of the Rules of Procedure of the Civil Service Tribunal

(Rules of Procedure of the Civil Service Tribunal, Art. 99(2))

4.      Procedure – Time-limits – Claim barred by lapse of time – Force majeure –Definition

(Statue of the Court of Justice, Art. 45 and Annex I, Art. 9, first para.; Rules of Procedure of the Civil Service Tribunal, Art. 99(2))

1.      Where the applicant does not have an address for service in Luxembourg for the purpose of proceedings before the Civil Service Tribunal, but has given a fax number and telephone number for the service of documents relating to those proceedings, the proper service of the final judgment or order of the Civil Service Tribunal is, in accordance with Article 99(1), first indent, and (2) of the Rules of Procedure of the Civil Service Tribunal, deemed to have taken place on the date shown on the form acknowledging receipt of the registered letter containing a certified true copy of that judgment or order, where the applicant has been advised of its dispatch by the Registrar of the Civil Service Tribunal, in accordance with Article 99(2) of the Rules of Procedure of the Civil Service Tribunal, and has not informed the Registrar, within three weeks of that advice, that the document to be served has not reached him. The advice in question may be effected by telephone to the number given by the applicant where, because of a malfunction of the fax number given for service by the applicant, all attempts by the Registrar of the Civil Service Tribunal to send the advice in question to that fax machine have proved unsuccessful and where the applicant, when informed of that malfunction, has not remedied it.

(see paras 21-23)

2.      Where a malfunction of the fax machine indicated by the applicant for service has not been remedied, if the applicant has not been advised by telephone that the Registrar of the Civil Service Tribunal has sent him, by registered post, a certified true copy of the final judgment or order, service of the judgment or order in question is deemed to have been duly effected, pursuant to Article 35(4) of the Rules of Procedure of the Civil Service Tribunal, by the lodging of that letter at the post office in Luxembourg.

(see paras 28-29)

See: judgment of 3 July 2008 in C-84/08 P Pitsiorlas v Council and ECB, not published in the ECR, paras 5 to 13

3.      Following expiry of the three-week period provided for in Article 99(2) of the Rules of Procedure of the Civil Service Tribunal, the presumption created by that provision becomes irrefutable. In such a case, the fact that the applicant disputes the signature on the form acknowledging receipt of the dispatch by registered post of the final judgment or order of the Civil Service Tribunal cannot call into question the finding that service of the judgment or order in question was duly effected on the date stated on that form.

(see paras 23-27)

4. Derogation from the application of the Community rules on procedural time-limits may be made only 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 concept of ‘force majeure’ within the meaning of Article 45 of the Statute of the Court of Justice contains both an objective element relating to abnormal circumstances unconnected with the person in question and a subjective element involving the obligation, on that person’s 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, in particular, demonstrate diligence 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.

An appeal against an order of the Civil Service Tribunal lodged out of time by an applicant is thus inadmissible where his counsel, informed by telephone by the Registrar of the Tribunal that his attempts to send him that order by fax had failed, took no action for more than two months and contacted the Registrar only after expiry of both the three-week period referred to in Article 99(2) of the Rules of Procedure of the Civil Service Tribunal and of the time-limit for appeal, without invoking any reason or special circumstance to explain the situation.

(see paras 31, 32, 35)

See: C‑239/97 Ireland v Commission [1998] ECR I‑2655, para. 7; C‑369/03 P Forum des migrants v Commission [2004] ECR I‑1981, para. 16; C‑325/03 P Juazaga Meabe v OHIM [2005] ECR I‑403, para. 25 and the case-law cited therein; T‑426/04 Tramarin v Commission [2005] ECR II‑4765, para. 60