Provisional text
ORDER OF THE GENERAL COURT (Third Chamber)
25 January 2024 (*)
(Action for annulment – Time limit for bringing proceedings – Out of time – Manifest inadmissibility)
In Case T‑280/23,
Oil company ‘Lukoil’ PAO, established in Moscow (Russia), represented by B. Lebrun and C. Alter, lawyers,
applicant,
v
European Parliament, represented by U. Rösslein and S. Toliušis, acting as Agents,
Council of the European Union, represented by M. Bauer and L. Bratusca, acting as Agents,
European Commission, represented by M. Burón Pérez and A.-C. Simon, acting as Agents,
and
Transparency Register,
defendants,
THE GENERAL COURT (Third Chamber),
composed of F. Schalin, President, P. Škvařilová-Pelzl and I. Nõmm (Rapporteur), Judges,
Registrar: V. Di Bucci,
makes the following
Order
1 By its action under Article 263 TFEU, the applicant, Oil company ‘Lukoil’ PAO, seeks the annulment of the decision of the Secretariat of the Transparency Register Ares (2023) 1618717 of 6 March 2023 declaring the removal of the applicant from the Transparency Register of the European Union.
Law
2 Under Article 126 of the Rules of Procedure of the General Court, where the action is manifestly inadmissible, the General Court may decide to give a decision by reasoned order without taking further steps in the proceedings.
3 In the present case, the Court considers that it has sufficient information from the answers provided by the applicant and the defendants to the questions asked in connection with the measures of organisation of procedure of 11 July, 17 August and 5 October 2023 on whether the action was potentially out of time. It has therefore decided, pursuant to Article 126 of the Rules of Procedure, to give a decision without taking further steps in the proceedings and without it being necessary to serve the application on the defendants, since, for the reasons set out below, the action must, in any event, be dismissed as manifestly inadmissible.
4 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 applicant, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. In accordance with Article 60 of the Rules of Procedure, that time limit is, in addition, to be extended on account of distance by a single period of 10 days.
5 As regards, more specifically, the calculation of time limits, Article 58(1)(a) and (b) of the Rules of Procedure provides, first, that, ‘where a time limit expressed in days, weeks, months or years is to be calculated from the moment at which an event occurs or an action takes place, the day during which that event occurs or that action takes place shall not be counted as falling within the time limit in question’ and, secondly, that ‘a time limit expressed in weeks, months or years shall end with the expiry of whichever day in the last week, month or year is the same day of the week, or falls on the same date, as the day during which the event or action from which the time limit is to be calculated occurred or took place’.
6 According to settled case-law, since that time limit for bringing an action 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, it is a matter of public policy and the EU judicature must therefore ascertain of its own motion whether that time limit has been observed (judgment of 23 January 1997, Coen, C‑246/95, EU:C:1997:33, paragraph 21, and order of 19 January 2018, Miasto Gliwice v Commission, T‑485/17, not published, EU:T:2018:40, paragraph 6).
7 It should also be noted that it is the responsibility of the party alleging that an action is out of time to prove on what date the contested decision was notified and, in any case, on what date the person concerned learned of it in the case of an individual measure (see, by analogy, judgment of 29 November 2018, WL v ERCEA, T‑493/17, not published, EU:T:2018:852, paragraph 59). Therefore, in the present case, that proof is the responsibility of the defendants.
8 In order for a decision to be validly notified, it is necessary not that the addressee should actually gain effective knowledge of its content, but that he or she should be given the opportunity to gain effective knowledge of it. In that regard, various circumstances may provide proof that the addressee of a decision has not only received it, but has also been able to gain effective knowledge of it (see, by analogy, order of 31 July 2020, TO v EEAS, T‑272/19, EU:T:2020:361, paragraph 42).
9 To that effect, in order to establish that a decision notified by email was duly notified to its addressee on a specific date and that, consequently, the time limit for bringing an action began to run from that date, the interested party must show, by providing the necessary evidence in that regard, not only that that decision was communicated to its addressee, in the sense that it was transmitted to the email address of that addressee and that the addressee received it at that address, but also that the addressee was in a position to take cognisance of the content of that decision on that date, that is to say, that he or she was able to open the email containing the decision in question and thus to take cognisance of it on that date (see, by analogy, judgment of 1 August 2022, Kerstens v Commission, C‑447/21 P, not published, EU:C:2022:612, paragraph 22).
10 In that regard, neither a presumption that the addressee of a decision notified by email can, in any event, only have been able to become acquainted with its content on the date on which he or she consulted his or her email inbox, nor a presumption that the addressee of such a decision is in any event able to become acquainted with its contents as soon as it is received in his or her email inbox, can be in conformity with the provisions setting the time limits for bringing an action (see, by analogy, judgment of 1 August 2022, Kerstens v Commission, C‑447/21 P, not published, EU:C:2022:612, paragraph 25).
11 In the present case, the Secretariat of the Transparency Register, by an email of 6 March 2023, notified the applicant of the contested decision. The applicant admitted explicitly that that email had arrived on the same date in the email inboxes of both representatives it had designated when it was entered into the Transparency Register (‘the representatives’). It follows that the time limit for applying for the annulment of that measure, provided for by Article 263 TFEU, had therefore, in principle, expired on 16 May 2023, whereas the action was not lodged at the Court Registry until 17 May 2023. Accordingly, prima facie, the action appears to be out of time.
12 However, the applicant relies on a series of arguments by which it claims that the action is not out of time.
13 In the first place, the applicant denies having taken cognisance of the email of 6 March 2023 on the ground that that email arrived on the same day, but outside office hours, in its representatives’ email inboxes. The applicant also submits that it was not in a position to take cognisance of the content of that email on the day it was communicated to its representatives.
14 Therefore, it must be ascertained whether the defendants have presented sufficient evidence to permit the inference that the representatives of the applicant were in a position to take cognisance of the content of the email of 6 March 2023 on the same day that it arrived in their email inboxes.
15 In that regard, by a letter of 31 March 2023 addressed to the Secretariat of the Transparency Register, the applicant’s advisers submitted, in response to the contested decision attached to the email of 6 March 2023, a request to reopen the investigation under points 7.3 and 7.4 of Annex III to the Interinstitutional Agreement of 20 May 2021 between the European Parliament, the Council of the European Union and the European Commission on a mandatory transparency register (OJ 2021 L 207, p. 1; ‘the Interinstitutional Agreement’).
16 It must be stated that point 7.3 of Annex III to the Interinstitutional Agreement provides that the Secretariat of the Transparency Register may consider a request to reopen an investigation ‘up to 20 working days after the parties concerned have been informed of its decision’.
17 It should also be recalled that, as regards the rules for calculating time limits, the second subparagraph of Article 3(1) of Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits (OJ 1971 L 124, p. 1), provides that ‘where a period expressed in days, weeks, months or years is to be calculated from the moment at which an event occurs or an action takes place, the day during which that event occurs or that action takes place shall not be considered as falling within the period in question’.
18 Bearing that in mind, it must be noted that, in order to show that the request to reopen the investigation relating to the applicant was brought within 20 working days, its advisers made explicit reference, in the last paragraph of the letter of 31 March 2023, to the fact that that period of 20 working days had begun to run on ‘7 March 2023’ and expired on ‘3 April 2023’.
19 Such precise information, coming from the applicant’s own advisers, can only be interpreted as their acknowledgement that the email containing the contested decision was indeed communicated to the applicant’s representatives on 6 March 2023, that that email arrived in their email inboxes on that date and that they took cognisance or, at the very least, were in a position to take cognisance of it on the same day that it was communicated and received. It follows that the email containing the contested decision was ‘duly notified’ to those representatives on 6 March 2023.
20 If the representatives of the applicant had not opened or had not been in a position to open the email of 6 March 2023 until the day after it was communicated and received, that is to say, 7 March 2023, the letter of 31 March 2023 would logically have indicated that the period of 20 working days began to run on 8 March 2023.
21 In that context, the argument put forward by the applicant that the email was communicated outside office hours, is not sufficient to call into question the clear terms of the last paragraph of the letter of 31 March 2023.
22 In the second place, the applicant claims that the email containing the contested decision was communicated, on 6 March 2023, only to the representatives of its Belgian subsidiary, namely Lukoil Belgium NV, not to the applicant itself, and that it was therefore not able to gain knowledge of it on that day.
23 The applicant’s reasoning cannot be accepted.
24 First, it should be noted at the outset that Article 2(c) of the Interinstitutional Agreement provides that ‘registrant’ means ‘any interest representative with an entry in the register’.
25 Next, Article 6(2) of the Interinstitutional Agreement provides that it is for applicants for registration to provide the information listed in Annex II to that agreement. The information to be entered in the Transparency Register, listed in point I of that annex, includes, inter alia, the name of the ‘person legally responsible for the entity’ and that of the ‘person in charge of relations with the Union’.
26 Furthermore, pursuant to Article 8(3)(b) of the Interinstitutional Agreement, the Secretariat of the Transparency Register has established guidelines concerning that register for applicants for registration and for registrants, to ensure that that agreement is applied consistently (‘the guidelines’). Point 2 of the guidelines, entitled ‘Single registration principle’, states that, to avoid multiple entries and speed up the administrative handling of an application or registration, interest representatives operating in more than one country (for example multinationals) should register their activities in the register only once and, in doing so, cover the various other entities of a network, corporate group or similar. They specify that, in practice, this generally falls to the branch or office representing the interests of the entity vis-à-vis the EU institutions.
27 Point 5 of the guidelines, entitled ‘Information to be entered in the register’, makes reference to Heading 4, concerning the ‘person with legal responsibility’, which it defines as ‘an individual who is allowed by law to act on behalf of the interest representative or to represent it in contacts with public authorities’.
28 Lastly, under Article 8(3)(c) of the Interinstitutional Agreement and in line with the code of conduct in Annex I thereto, registrants are ultimately responsible for the accuracy of the information they have provided.
29 Secondly, it is apparent from the extract from the Transparency Register, presented by the Commission, that only the applicant was entered therein. The applicant’s Belgian subsidiary did not form the subject of any separate entry and was not referred to as ‘office in charge of relations with the Union’. Accordingly, under Article 8(3)(b) of the Interinstitutional Agreement and in line with the single registration principle in point 2 of the guidelines, recalled in paragraph 26 above, it must be acknowledged that the indication of the applicant as the sole organisation entered in the Transparency Register covered all the undertakings in the group to which the applicant belonged in all countries where that group was present, including the Belgian subsidiary, and that it is incorrect to state that that subsidiary was also entered in the register.
30 Thirdly, it should be noted that the name of the ‘person legally responsible for the entity’ indicated by the applicant was ‘Mr S.’ and that of the ‘person in charge of relations with the Union’ was ‘Mr B.’. Under Article 6(2) of the Interinstitutional Agreement and point I of Annex II thereto, recalled in paragraph 25 above, and in line with point 5 of the guidelines referred to in paragraph 27 above, it must be held that, by designating a person legally responsible and a person in charge of relations with the Union, the applicant accepted that those persons may act on its behalf as representatives responsible for its relations with the Secretariat of the Transparency Register. Therefore, the reference to the functions of the applicant’s representatives, namely ‘Executive Director’ and ‘Director of Commercial Affairs’ of its Belgian subsidiary respectively, has no bearing on the fact that their designation, by the applicant, as the person legally responsible and the person in charge of relations with the Union implied its agreement that they may represent the applicant in its contacts with the Secretariat of the Transparency Register.
31 In that regard, the applicant’s argument that its representatives had authority only to receive communications and represent its Belgian subsidiary does not stand up to analysis. As noted in paragraph 28 above, registrants are responsible for the accuracy of the information they have provided.
32 Moreover, the conclusion that Mr S. and Mr B. represented the applicant and acted on its behalf is supported by the fact that, as the Commission correctly noted, the Secretariat of the Transparency Register sent an email to the applicant on 14 July 2022 by means of the email inbox of Mr S., its representative designated as the ‘person legally responsible’, to notify it of the Secretariat’s decision to open an investigation relating to it and to suspend its registration on a precautionary basis. Mr S. is indeed the person who, on 28 July 2022, sent the email in response to the members of the Secretariat of the Transparency Register and who asked them to find attached ‘the official response’ of the applicant to their request, in the light of the investigation launched in relation to the latter by that Secretariat. It must be added that the official response at issue was specifically signed by Mr S. and Mr B.
33 Furthermore, it must be observed that the contested decision, addressed to ‘Lukoil, Boulevard Sretensky, 11, 101000 Moscow, Russia’, was communicated to Mr S. and Mr B. by means of their email inboxes, which were indicated in the extract from the register.
34 In the third place, the applicant claims that the contested decision is insufficiently reasoned, in that it contains only general statements, and emphasises that, on 31 March 2023, it asked the Secretariat of the Transparency Register for the investigation report, which was communicated to the applicant on 25 April 2023. It therefore considers that the time limit for bringing an action could not have begun to run until that report was received.
35 That line of argument must be rejected.
36 First, the contested decision is the decision in the email of 6 March 2023, not the investigation report of the Secretariat of the Transparency Register. Point 7.1 of Annex III to the Interinstitutional Agreement provides that the Secretariat must close its investigation with ‘a reasoned decision’ and must notify the parties concerned in writing of that decision. Point 4.11 of that annex provides that the Secretariat of the Transparency Register is to provide a copy of its investigation report to the registrant only ‘upon request’. The fact that the Interinstitutional Agreement grants the registrant the possibility of requesting a copy of the investigation report therefore has no bearing on the starting point of the time limit for bringing an action, that is, the day on which the decision communicated pursuant to point 7.1 of Annex III is notified. Therefore, the applicant cannot validly maintain that the time limits for bringing an action must be suspended for as long as it had not received the investigation report.
37 Secondly, the response to the question of calculating the time limit does not depend on the response to the question of whether or not the reasoning in the email of 6 March 2023 was sufficient.
38 In any event, the applicant was fully capable of bringing an action for annulment against the contested decision and, as the case may be, claiming that it did not fully satisfy the requirement to state reasons, having regard to, first, the grounds included in the contested decision – relating, in particular, to its activities of representing interests intended to influence the EU decision-making process directly or through its Belgian subsidiary and to the media coverage showing its position as a powerful lobbyist exercising influence on behalf of the Russian Government – and, secondly, the context that was known to the applicant on account of the email exchanges between it and the Secretariat of the Transparency Register prior to the adoption of the contested decision.
39 It follows from all the foregoing considerations that the action must be dismissed as manifestly inadmissible, on the ground that it is out of time, without it being necessary to rule on its admissibility in so far as it is directed against the Transparency Register.
Costs
40 Since the present order has been made before service of the application on the defendants, it is sufficient to decide that the applicant must bear its own costs pursuant to Article 133 of the Rules of Procedure. The fact that the defendants were called upon to answer questions put by the General Court in connection with the measures of organisation of procedure referred to in paragraph 3 above is irrelevant in that regard.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1. The action is dismissed as manifestly inadmissible.
2. Oil company ‘Lukoil’ PAO shall bear its own costs.
Luxembourg, 25 January 2024.