ORDER OF THE GENERAL COURT (Third Chamber)
1 March 2024 (*)
(Action for annulment – Public health – Implementing Decision (EU) 2023/686 – Non-authorisation of a biocidal product (insecticide) – Time limit for bringing proceedings – Point from which time starts to run – Out of time – Inadmissibility)
In Case T‑341/23,
Dakem, established in Courbevoie (France), represented by K. Van Maldegem and P. Sellar, lawyers,
applicant,
v
European Commission, represented by B. Cullen and R. Lindenthal, acting as Agents,
defendant,
THE GENERAL COURT (Third Chamber),
composed of F. Schalin, President, P. Škvařilová‑Pelzl and G. Steinfatt (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure, in particular:
– the application lodged at the Court Registry on 16 June 2023,
– the plea of inadmissibility raised by the Commission by separate document lodged at the Court Registry on 8 September 2023,
– the applicant’s observations on the plea of inadmissibility lodged at the Court Registry on 19 October 2023,
– the applications for leave to intervene made by the European Chemicals Agency (ECHA) and the Kingdom of Belgium lodged at the Court Registry on 19 September and 11 October 2023 respectively,
makes the following
Order
1 By its action under Article 263 TFEU, the applicant, Dakem, seeks the annulment of Commission Implementing Decision (EU) 2023/686 of 24 March 2023 not granting a Union authorisation for the single biocidal product ‘Insecticide Textile Contact’ (OJ 2023 L 90, p. 42; ‘the contested decision’).
Background to the dispute
2 The applicant is a French company specialising in the formulation and marketing of biocidal products for the control of biting insects.
3 On 24 April 2016, the applicant submitted to the European Chemicals Agency (ECHA) an application for Union authorisation of the single biocidal product Insecticide Textile Contact (‘the ITC product’), in accordance with Article 43(1) of Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products (OJ 2012 L 167, p. 1).
4 The application was recorded under case number BC-JR023293-31 in the Register for Biocidal Products (‘the Register’). That register is an information system maintained by ECHA and used for the exchange of information between competent authorities, ECHA and the Commission, and between applicants and competent authorities, ECHA and the Commission, in accordance with Article 71(2) of Regulation No 528/2012.
5 On 2 July 2020, ECHA submitted to the Commission its opinion on the application for Union authorisation of the ITC product in accordance with Article 44(3) of Regulation No 528/2012 in which it concluded that the ITC product did not meet the conditions laid down in Article 19(1) of that regulation since its use would lead to unacceptable risks for non-professional users and for the environment.
6 On 24 March 2023, the Commission adopted the contested decision pursuant to the first subparagraph of Article 44(5) of Regulation No 528/2012.
7 On 27 March 2023, the contested decision was transmitted to the applicant by email from the Secretariat-General of the Commission under number C(2023) 1853.
8 On 28 March 2023, the Commission published the contested decision in the Official Journal of the European Union.
9 On 29 March 2023, the Commission communicated the contested decision through the Register.
Forms of order sought
10 The applicant claims, in essence, that the Court should:
– annul the contested decision;
– declare the action admissible; or, in the alternative, reserve its decision on the plea of inadmissibility until it rules on the substance of the case;
– order the Commission to pay the costs.
11 The Commission contends that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
Law
12 Under Article 130(1) of the Rules of Procedure of the General Court, the Court may, if the defendant so requests, rule on the question of inadmissibility without going to the substance of the case.
13 In the present case, the Court considers that it has been sufficiently informed by the documents in the file and decides, pursuant to that article, to give judgment without taking further steps in the proceedings.
14 In support of its plea of inadmissibility, the Commission submits that the action was brought out of time and is thus manifestly inadmissible.
15 It asserts that the notification of the contested decision by email from the Secretariat-General of the Commission on 27 March 2023 was duly carried out, in accordance with the case-law of the Court of Justice, and accordingly triggered the time limit laid down in the sixth paragraph of Article 263 TFEU.
16 In the Commission’s view, Article 2 of the contested decision explicitly specifies the applicant as the addressee and that decision was sent to the email address supplied by the applicant in its initial application for Union authorisation of the ITC product. In addition, an employee of the applicant acknowledged receipt of the contested decision on the same day. The applicant was therefore in a position to take cognisance of the contested decision.
17 According to the Commission, since the contested decision was notified to the applicant on 27 March 2023, the time limit for bringing an action expired on 6 June 2023. Since the applicant brought its action on 16 June 2023, it was therefore clearly lodged out of time.
18 In the event that the Court should consider the communication of the decision through the Register to be the due notification which triggered the time limit for bringing an action, the Commission notes that, since that communication was made on 29 March 2023, the time limit for bringing the action expired on 8 June 2023. The action was therefore also lodged out of time.
19 The Commission submits, in all cases, that it is clearly apparent from the case-law that the starting point of the time limit for bringing an action is the notification and not the publication in the Official Journal of a contested decision, where that decision took effect upon being duly notified to the addressee, and recalls that, in the present case, the publication has no constitutive effect since it was not required by the third subparagraph of Article 297(2) TFEU.
20 The applicant contests the Commission’s arguments and submits that the action is admissible. It argues that the publication of the contested decision in the Official Journal, and not its notification, matters for the calculation of the time limit for bringing an action in the present case.
21 In the first place, the applicant submits that the time limit for bringing an action did not begin to run from the transmission of the contested decision by email on 27 March 2023 because it was not duly carried out for the purposes of the sixth paragraph of Article 263 TFEU.
22 First, the email was sent, without prior warning, by the Secretariat-General of the Commission, which had not previously been involved in any product assessment process under Regulation No 528/2012, and was therefore unknown to the applicant. Moreover, the employee who acknowledged receipt of the email did not have authority to bind the company in law. That email was never sent to its lawyers.
23 Secondly, it is apparent from Article 71(6) of Regulation No 528/2012 that the Commission was obliged to communicate a decision of non-authorisation through the Register.
24 In the second place, the applicant claims that, as regards the exceptional circumstances of the present case on which the EU Courts have not yet had to rule, it is necessary to take an approach which does not deprive it of its right to bring a legal action. In a situation where the publication in the Official Journal took place before the appropriate notification, the event which triggered the time limit for bringing an action is not clearly identified. Furthermore, it could not be assumed that the publication had no constitutive effect.
25 In the third place, the applicant maintains that, were the Court to consider that the applicant erred as regards the calculation of the time limit for bringing an action, that error is excusable, therefore its action was not brought out of time.
26 First, the Commission adopted conduct capable of giving rise to confusion regarding the starting point of the time limit for bringing an action against the contested decision, since it did not duly notify the contested decision in accordance with the requirements of Regulation No 528/2012. The three communications of the contested decision in the period of three days were such as to cause understandable confusion in the mind of a party acting in good faith and with all the diligence required of a normally experienced trader.
27 Secondly, the rules concerning times limits applicable on the basis of the sixth paragraph of Article 263 TFEU and Article 59 of the Rules of Procedure are not clear as regards their interpretation in a situation where the publication predates the due notification of the contested decision.
28 Thirdly, this is the first time that an action for annulment has been brought against a refusal of marketing authorisation for a biocidal product, which accordingly leads to a greater likelihood of confusion in the mind of a normally experienced trader, contrary to actions for annulment brought against approvals for active substances, which are also brought by applicants but for which the time limits are calculated from the date of their publication in the Official Journal.
29 The confusion created in the applicant’s mind and caused by the Commission must therefore be treated in the same way as unforeseeable circumstances or force majeure with the consequence that no right of the parties concerned should be prejudiced by the expiry of a time limit.
30 Under the sixth paragraph of Article 263 TFEU, proceedings for annulment are to be instituted within two months of the publication of the 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.
31 It is apparent from the third subparagraph of Article 297(2) TFEU that, by contrast with acts which must be published in the Official Journal, inter alia, the decisions which specify to whom they are addressed are to be notified to those to whom they are addressed and take effect upon such notification (judgment of 17 May 2017, Portugal v Commission, C‑339/16 P, EU:C:2017:384, paragraph 35).
32 It follows from a combined reading of those two provisions of the TFEU that, so far as actions for annulment are concerned, the date to be taken into account for the purpose of determining the starting point of the time limit for bringing an action is the date of publication, when such publication, which is a precondition for the coming into force of the act, is provided for in that Treaty, and the date of notification in the other cases referred to in the third subparagraph of Article 297(2) TFEU, amongst which is that of decisions which specify those to whom they are addressed (judgment of 17 May 2017, Portugal v Commission, C‑339/16 P, EU:C:2017:384, paragraph 36).
33 In the present case, the contested decision specifies the applicant as the addressee in its Article 2, therefore the starting point of the time limit for bringing an action is the date on which that decision was notified.
34 For the purposes of the sixth paragraph of Article 263 TFEU, notification is the operation by which the author of a decision of individual relevance, such as a decision taken under the third subparagraph of Article 297(2) TFEU, communicates that decision to the addressees and thus puts them in a position to take cognisance of its content and the grounds on which it was based (see order of 30 April 2019, Romania v Commission, T‑530/18, EU:T:2019:269, paragraph 26 and the case-law cited).
35 As regards the regularity of the notification of EU acts, it is apparent from the case-law that, first, a decision is duly notified for the purposes of the Treaty, provided that it is communicated to the addressee and the latter is put in a position to take cognisance of it and that, secondly, email is a suitable method by which to communicate a decision to the addressee (see order of 9 July 2013, Page Protective Services v EEAS, T‑221/13, not published, EU:T:2013:363, paragraph 12 and the case-law cited).
36 In the present case, the applicant supplied its email address in its application for Union authorisation of the ITC product, therefore accepting the principle of communication by email. The contested decision was communicated to the applicant, as an attachment to the email of 27 March 2023 from the Secretariat-General of the Commission. The applicant acknowledged receipt of the contested decision on that same day. It was therefore in a position to take cognisance of that decision on the latter date, in accordance with the abovementioned case-law.
37 The fact that the acknowledgement of receipt came from an employee of the applicant who, according to the applicant, did not have authority to bind the company in law cannot call into question the regularity of the notification.
38 According to settled case-law, the validity of a notification to the addressee is in no way conditional on its having been actually brought to the notice of the person competent to deal with it under the internal rules of the entity addressed. Due notification of a decision has been effected once it has been communicated to the addressee and the addressee is in a position to take cognisance of it. Thus, in order to assess the validity of a notification, only its external aspect is taken into consideration, that is to say, due transmission to the addressee, rather than its internal aspect, which concerns the internal functioning of the entity addressed (see order of 22 January 2015, GEA Group v OHIM (engineering for a better world), T‑488/13, EU:T:2015:64, paragraph 19 and the case-law cited).
39 The obligation on the notifier to create the conditions necessary for the addressee to effectively take cognisance of the notification is an obligation to use best endeavours (which corresponds with the external aspect of the notification) rather than an obligation on the notifier to interfere in the internal functioning of the entity addressed in order to ensure it has actually taken cognisance of the notification, that is to say, an obligation to achieve a specific result (which corresponds with the internal aspect of the notification) (see order of 22 January 2015, engineering for a better world, T‑488/13, EU:T:2015:64, paragraph 20 and the case-law cited).
40 It follows from the foregoing that, in the present case, the contested decision was duly notified to the applicant on 27 March 2023. The time limit of two months provided for by the sixth paragraph of Article 263 TFEU therefore began to run the day after the notification of the contested decision by email, namely the 28 March 2023 at 00:00, and, extended on account of distance by a single period of 10 days in accordance with Article 60 of the Rules of Procedure, expired on 6 June 2023 at midnight.
41 However, the applicant lodged its application on 16 June 2023. Consequently, the action was brought after the expiry of the time limit for bringing an action and therefore late.
42 That finding cannot be called into question by the applicant’s argument that Article 71(6) of Regulation No 528/2012 lays down the obligation for the Commission to notify the contested decision through the Register for that notification to be carried out in good and due form.
43 It is apparent from recital 45, Article 34(5), Article 35(3) and Article 71(1) to (6) of Regulation No 528/2012, that the Register was established as an information system intended to facilitate the functioning of the authorisation and mutual recognition procedures by making available to, and exchanging with each other the particulars and scientific documentation submitted in connection with applications for authorisation of biocidal products, as well as decisions and agreements made by the Commission, Member States or competent authorities.
44 Moreover, it is apparent from the wording of Article 71(6) of Regulation No 528/2012 that the Commission is to use the Register for Biocidal Products to record and communicate the decisions it has taken in relation to the authorisations of biocidal products. However, that provision does not lay down a specific procedure for notifying such decisions or make reference to the notification provided for in the sixth paragraph of Article 263 TFEU.
45 It follows that Article 71(6) of Regulation No 528/2012 introduces an obligation to communicate decisions taken by the Commission through the Register, in particular so that competent authorities, ECHA and Member States can also take cognisance of them, but does not provide that the notification, within the meaning of the sixth paragraph of Article 263 TFEU, of decisions adopted by the Commission be carried out through that Register.
46 The applicant’s argument that, by notifying the contested decision, then publishing it in the Official Journal and lastly communicating it through the Register, in an interval of three days, the Commission adopted conduct capable of giving rise to confusion regarding the starting point of the time limit for bringing an action against the contested decision, so that the applicant’s error had to be considered excusable, cannot succeed either.
47 In that regard, it is settled case-law that, in the context of the European Union’s rules on time limits for instituting proceedings, the concept of excusable error justifying a derogation from those rules 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 the party acting in good faith and displaying all the diligence required of a normally well-informed person (see order of 16 October 2023, Grapevine v Commission, C‑139/23 P, not published, EU:C:2023:806, paragraph 32 and the case-law cited).
48 The sixth paragraph of Article 263 TFEU, read in conjunction with Article 297 TFEU, as interpreted by case-law, is clear regarding the starting point of the time limit for bringing an action and does not give rise to doubts as regards its interpretation. It follows that neither the publication nor the subsequent communication through the Register was capable of creating exceptional circumstances in which the Commission had adopted conduct capable, either alone or to a decisive extent, of giving rise to pardonable confusion in the mind of a party acting in good faith and displaying all the diligence required of a normally well-informed person.
49 Lastly, the applicant cannot validly maintain that the notification of the contested decision was capable of leading to a greater likelihood of confusion for a person that was used to actions for annulment brought against approvals for active substances for which the time limits are calculated from the date of their publication in the Official Journal.
50 It is apparent from the contested decision itself, as published in the Official Journal, and from the email sent to the applicant on 27 Match 2023, that the contested decision was notified under number C(2023) 1853. The Commission also specified in that email that the contested decision had been adopted on the basis of Article 297 TFEU.
51 A person acting in good faith and displaying all the diligence required of a normally well-informed person would have therefore objectively been in a position to understand that the contested decision was subject to notification under Article 297 TFEU, read in conjunction with the sixth paragraph of Article 263 TFEU, and would have been able to draw the appropriate conclusions from that regarding the event which triggered the time limit for bringing an action in order to avoid its expiry.
52 It results from the foregoing that the applicant is not justified in relying on an excusable error to derogate from the EU rules on time limits for bringing an action.
53 As regards the force majeure on which the applicant also relies, it should be noted that, according to settled case-law of the Court of Justice, the concept of ‘force majeure’ within the meaning of Article 45 of the Statute of the Court of Justice of the European Union, 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 (see order of 18 January 2005, Zuazaga Meabe v OHIM, C‑325/03 P, EU:C:2005:28, paragraph 25 and the case-law cited).
54 Accordingly, 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 time limit for bringing an action (see case 20 September 2018, Ghost – Corporate Management v EUIPO (Dry Zone), T‑488/17, not published, EU:T:2018:571, paragraph 42 and the case-law cited).
55 As stated in paragraph 51 above, the applicant was in a position to understand that the contested decision was subject to notification and could have paid close attention to the course of the procedure to avoid the expiry of the time limit. The applicant has therefore not demonstrated the necessary diligence in respect of the prescribed time limits.
56 Lastly, as is apparent from the case-law of the Court of Justice, rules concerning time limits for bringing an action are mandatory and a derogation from those rules cannot be justified by the fact that fundamental rights are at stake (order of 11 June 2020, GMPO v Commission, C‑575/19 P, not published, EU:C:2020:448, paragraph 39). Therefore, the applicant cannot derogate from those rules to ensure its right to bring a legal action.
57 Furthermore, as regards the claim that the Court of Justice declared, in the judgment of 26 September 2013, PPG and SNF v ECHA (C‑625/11 P, EU:C:2013:594, paragraphs 33 to 36), that ‘it is necessary, in the absence of any imperative reasons to the contrary, to favour an interpretation which does not result in the interested parties being time-barred and therefore depriving them of their right to bring a legal action’, it is also sufficient to observe that the Court ruled thus only in so far as the interpretation of the relevant provisions could give rise to doubts. Yet the interpretation of Article 263 TFEU, read in conjunction with Article 297 TFEU and as interpreted by the case-law cited in paragraph 32 above, does not give rise to any doubt (see, to that effect, order of 19 April 2016, Portugal v Commission, T‑556/15, not published, EU:T:2016:239, paragraph 33).
58 Consequently, the objection of inadmissibility raised by the Commission must be upheld and the action must be dismissed as inadmissible since it was brought out of time.
Applications to intervene
59 Under Article 142(2) of the Rules of Procedure, the intervention is ancillary to the main proceedings and becomes devoid of purpose, inter alia, when the application is declared inadmissible.
60 Consequently, there is no longer any need to adjudicate on the applications to intervene made by the Kingdom of Belgium and by ECHA.
Costs
61 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
62 Since the applicant has been unsuccessful, it must be ordered to pay, in addition to its own costs, the costs incurred by the Commission, in accordance with the form of order sought by the Commission.
63 Under Article 144(10) of the Rules of Procedure, if the proceedings in the main case are concluded before the application for leave to intervene has been decided, the applicant for leave to intervene and the main parties must each bear their own costs relating to the application to intervene.
64 Therefore, the applicant, the Commission, the Kingdom of Belgium and ECHA must each bear their own costs relating to the applications to intervene in support of the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. There is no longer any need to adjudicate on the applications to intervene submitted by the Kingdom of Belgium and by the European Chemicals Agency (ECHA).
3. Dakem shall bear its own costs and pay those of the European Commission, with the exception of those relating to the applications to intervene.
4. Dakem, the Commission, the Kingdom of Belgium and ECHA shall each bear their own costs relating to the applications to intervene.
Luxembourg, 1 March 2024.