ORDER OF THE GENERAL COURT (Second Chamber)
1 September 2011 (*)
(Action for annulment – Period allowed for commencing proceedings – Out of time – No force majeure – No excusable error – Inadmissibility)
In Case T‑101/09,
Elmabruk Maftah, residing in South Harrow (United Kingdom), represented by E. Grieves, barrister, and A. McMurdie, solicitor,
applicant,
v
European Commission, represented by E. Paasivirta and M. Konstantinidis, acting as Agents,
defendant,
supported by
Council of the European Union, represented by R. Szostak, G. Étienne, M.‑M. Josephides and E. Finnegan, acting as Agents,
intervener,
APPLICATION for annulment of Commission Regulation (EC) No 1330/2008 of 22 December 2008 amending for the 103rd time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban (OJ 2008 L 345, p. 60), in so far as it concerns the applicant,
THE GENERAL COURT (Second Chamber),
composed of N. J. Forwood (Rapporteur), President, F. Dehousse and J. Schwarcz, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts and procedure
1 By virtue of Commission Regulation (EC) No 1330/2008 of 22 December 2008 amending for the 103rd time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban (OJ 2008 L 345, p. 60, ‘the contested regulation’), the name of the applicant, Mr Elmabruk Maftah, was added to the list of persons and entities whose funds and other economic resources are to be frozen pursuant to Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2002 L 139, p. 9) (‘the list at issue’).
2 The contested regulation was published in the Official Journal of the European Union on 23 December 2008.
3 By document lodged at the Registry of the General Court on 6 March 2009, the applicant made an application for legal aid under Article 94 of the Rules of Procedure of the Court, in order to bring, against the Council of the European Union and the European Commission, an action for the annulment, first, of Regulation No 881/2002 and, second, the contested regulation, in so far as those measures concerned him.
4 By order of the President of the Seventh Chamber of the General Court of 18 August 2010, the applicant was granted legal aid and E. Grieves and A. McMurdie were appointed as lawyers to assist him.
5 That order was notified to the applicant on 20 August 2010.
6 Under the relevant provisions of the FEU Treaty and the Court’s Rules of Procedure relating to periods for bringing proceedings, the period of time allowed to the applicant to bring an action for annulment of the contested regulation expired on 30 August 2010 (see paragraphs 20 to 27 below).
7 By application lodged by fax at the Registry of the Court on 1 September 2010, the applicant brought against the Commission, under Article 263 TFEU, an action for annulment of the contested regulation, in so far as it concerned him. The original of the application was received at the Registry on 7 September 2010.
8 By letter from the Registry of the General Court dated 30 September 2010, the applicant was informed that the present action appeared not to have been brought within the period prescribed by Article 263 TFEU and he was asked to explain why the application had been lodged late.
9 The applicant submitted his observations in response by document lodged at the Court’s Registry on 18 October 2010. The Commission was notified on that day of those observations, and at the same time of the application initiating the proceedings.
10 At the beginning of the new judicial year, the Judge-Rapporteur was assigned to the Second Chamber, to which, consequently, the present case was assigned.
11 By Commission Regulation (EU) No 36/2011 of 18 January 2011 amending for the 143rd time Regulation (EC) No 881/2002 (corrigendum OJ 2011 L 36, p. 12), the applicant’s name was removed from the list at issue.
12 By a separate document lodged at the Court’s Registry on 27 January 2011, the Commission raised an objection of inadmissibility, under Article 114 of the Rules of Procedure, against the present action. The Commission considers, further, that the action has become devoid of purpose since the adoption of Regulation No 36/2011.
13 By order of the President of the Second Chamber of the Court of 3 February 2011, the Council was given leave to intervene in support of the form of order sought by the Commission.
14 On 17 March 2011 the Council lodged its observations on the objection of inadmissibility, pursuant to Article 114(2) of the Rules of Procedure. The applicant did not lodge such observations, although he was duly invited to do so by letter from the Registry of the Court of 7 February 2011.
Forms of order sought by the parties
15 The applicant claims that the Court should:
– annul the contested regulation in so far as it concerns the applicant;
– order the Commission to remove his name from the list at issue;
– order the Commission and/or the Council to pay, in addition to their own costs, those incurred by him and any sums advanced by way of legal aid by the cashier of the Court.
16 The Commission, supported by the Council, contends that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
Law
17 Under Article 114(1) of the Rules of Procedure, if a party so requests by a separate document, the Court may make a decision on admissibility without considering the substance of the case. Under Article 114(3), unless the Court otherwise decides, the remainder of the proceedings is to be oral.
18 In this case, the Court considers that it is adequately informed by the contents of the file to rule on admissibility without further procedure.
19 By its objection of inadmissibility, the Commission maintains that the action was brought out of time.
20 In that regard, under the sixth paragraph of Article 263 TFEU, an application for annulment must 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 applicant, as the case may be.
21 Next, as regards, in the present case, an action directed against a measure published in the Official Journal, under Article 102(1) of the Rules of Procedure, where the period of time allowed for commencing proceedings against a measure adopted by an institution runs from the publication of that measure, that period shall be calculated from the end of the 14th day after publication thereof in the Official Journal.
22 In the present case, the starting date for the calculation of the period of two months for bringing an action prescribed in the sixth paragraph of Article 263 TFEU was thereby deferred from 23 December 2008 to 6 January 2009.
23 In accordance with Article 101(1)(b) of the Rules of Procedure, under which a period of time expressed in months ends with the expiry of whichever day in the last month falls on the same date as the day from which the period is to be calculated, the period of two months for bringing proceedings in this case ended with the expiry of 6 March 2009.
24 Further, when account is taken of the single period of ten days on account of distance which must be added to the prescribed time-limits pursuant to Article 102(2) of the Rules of Procedure, the total period for bringing proceedings in this case would properly have expired at midnight on 16 March 2009.
25 In the present case, however, the applicant made an application for legal aid by document lodged at the Registry of the Court on 6 March 2009, in other words ten days before that expiry, and the order granting legal aid was notified to him on 20 August 2010.
26 In accordance with Article 96(4) of the Rules of Procedure, according to which the introduction of an application for legal aid is to suspend the period prescribed for the bringing of an action until the date of notification of the order making a decision on that application, the period prescribed for bringing the present action was therefore suspended from 6 March 2009 until 20 August 2010.
27 The running of that period resumed on 20 August 2010 and the period expired ten days later, at midnight on Monday 30 August 2010, a date which is not on the list of official holidays drawn up by the Court of Justice, as referred to in Article 101(2) of the Rules of Procedure.
28 Consequently, the present action, brought by application lodged at the Court’s Registry on 1 September 2010, was brought out of time, a fact which is moreover not disputed by any of the parties.
29 In accordance with settled case-law, the time-limits prescribed for bringing actions are a matter of public policy and are not subject to the discretion of the parties or the Court, since they were 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 (Case 152/85 Misset v Council [1987] ECR 223, paragraph 11, and Case C‑246/95 Coen [1997] ECR I‑403, paragraph 21; order in Case C‑73/10 P Internationale Fruchtimport Gesellschaft Weichert v Commission [2010] ECR I‑0000, paragraph 50; Joined Cases T‑121/96 and T‑151/96 Mutual Aid Administration Services v Commission [1997] ECR II‑1355, paragraphs 38 and 39).
30 In his observations lodged at the Court’s Registry on 18 October 2010, the applicant explains however that the reason why the application was lodged late was an error of calculation, since his lawyers first took into account the period of two months from the date of publication of the contested regulation, then added to that period the period of 14 days in Article 102(1) of the Rules of Procedure and, finally, the single period of ten days on account of distance to conclude, wrongly, that the period for bringing proceedings properly expired on 19 March 2009. According the applicant, his lawyers thus believed, again wrongly, that they had a further 13 days, and not ten, to bring the action, in other words until 2 September 2010, following the suspension of that period for the duration of the procedure relating to the application for legal aid, which ran from 6 March 2009 until 20 August 2010.
31 To the extent that, by explaining thereby the error of calculation committed by his lawyers, the applicant may have intended to rely on the fact that that error constituted an excusable error, it must be recalled that that concept must be interpreted strictly and can concern only exceptional circumstances in which, in particular, the conduct of the institutions has been, either alone or to a decisive extent, such as to give rise to pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally well-informed person (Case C‑195/91 P Bayer v Commission [1994] ECR I‑5619, paragraph 26, and Case C‑193/01 P Pitsiorlas v Council and ECB, [2003] ECR I‑4837, paragraph 24; see order of 15 March 2007 in Case T‑5/07 Belgium v Commission, not published in ECR, paragraph 17, and case-law cited).
32 Excusable error cannot however be accepted in the present case. It has already been held that the rules governing the time-limits applicable in the present case do not pose any particular difficulty of interpretation; accordingly, it cannot be accepted that this is a case of excusable error on the part of the applicant, justifying derogation from the application of the abovementioned rules (see, to that effect, order in Case C‑406/01 Germany v Parliament and Council [2002] ECR I‑4561, paragraph 21; Joined Cases T‑142/01 and T‑283/01 OPTUC v Commission [2004] ECR II‑329, paragraph 44, and order of 30 November 2009 in Case T‑2/09 Internationale Fruchtimport Gesellschaft Weichert v Commission, not published in ECR, paragraph 21).
33 Further, the applicant has not established or even argued the existence of unforeseeable circumstances or of force majeure which would allow the Court to waive the time-limit in question on the basis of the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union.
34 None of the other arguments raised by the applicant is capable of calling that assessment into question.
35 As regards, first, the argument that the applicant gave clear notice of his intention to bring an action for annulment of the contested regulation, by making an application for legal aid when the period for bringing proceedings was running, it must be recalled that there is no connection between the application for legal aid and the principal action of such a kind that the order making a decision on that application, and a fortiori the application, might prejudge the admissibility of the action (see, by analogy, order in Case T‑37/93 Stagakis v Parliament [1994] ECR‑SC I-A-137 and II‑451, paragraph 23). In the present case, the applicant was therefore not entitled to deduce either from his application for legal aid or from the order granting him legal aid that his main action, which he had not yet even brought, was admissible (see, to that effect, the order in Case T‑73/10 P Apostolov v Commission [2010] ECR II‑0000, paragraph 26). Further, as correctly observed by the Council, the applicant’s argument would lead to a question of the admissibility of an action being based on a subjective evaluation of the intentions of the party concerned, which is unacceptable.
36 Further, the fact that the time remaining after notification of the order granting legal aid was too short to enable the applicant to prepare his action is merely the consequence of the provisions of Article 96(4) of the Rules of Procedure and the fact that the applicant submitted his application for legal aid only a few days before the expiry of the period for bringing proceedings, although he should have known that the later he made that application, the less time would be left to him to bring his action.
37 As regards, second, the argument that the contested regulation constituted a ‘continuing decision’, the Council is correct to make the point that that regulation, like any legal act, continues to produce legal effects until it is repealed, and accordingly the alleged peculiarity identified by the applicant is nothing of the kind and cannot mean that the period for bringing an action for annulment prescribed by Article 263 TFEU is not applicable in the present case.
38 In so far as the applicant relies on the right to effective judicial protection, it must be added that that right is in no way undermined by the strict application of European Union rules concerning procedural time-limits which, according to settled case-law, meets the requirements of legal certainty and the need to avoid all discrimination or arbitrary treatment in the administration of justice (see order in Case C‑406/01 Germany v Parliament and Council, cited above, paragraph 20, and case-law cited).
39 It must however also be observed that the expiry of the period for bringing an action for annulment of the contested regulation has not resulted in the applicant being deprived of any legal remedy against the continuing effects of that regulation. If he considered that the circumstances required a review of his situation and the removal of his name from the list at issue, it was open to him to call upon the Commission to carry out such a review and, if he considered that the Commission wrongfully declined to do so, to bring, if necessary, an action against the Commission for failure to act, on the basis of Article 265 TFEU.
40 As regards, third, the argument that there have been subsequent positive decisions to maintain the applicant’s name on the list at issue, the Commission is correct to make the point that the present action seeks solely the annulment of the contested regulation and makes no reference to any other act or failure to act by the Commission. In any event, it is clear that, beside the contested regulation, the only act adopted by the Commission in relation to the applicant is Regulation No 36/2011.
41 As regards, fourth, the argument that the contested regulation is manifestly unlawful in the light of the judgments in Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351 and Case T‑85/09 Kadi v Commission [2010] ECR II‑0000 and that it is in breach of the applicant’s fundamental rights, suffice it to say that, even where fundamental rights are at stake, rules concerning time-limits for bringing proceedings are mandatory and must be applied by the court in question in such a way as to safeguard legal certainty and equality of persons before the law (Case C‑229/05 P PKK and KNK v Council [2007] ECR I‑439, paragraph 101).
42 Lastly, as regards, fifth, the argument that the continuation of these proceedings causes no prejudice to the Commission, that is of no relevance in the light of the case-law cited in paragraph 29 above, which takes no account of any consequences the action may have for the defendant.
43 It follows from all the foregoing that the action must be dismissed as being inadmissible.
Costs
44 Under Article 87(2) 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. Under the first subparagraph of Article 87(4) of the Rules of Procedure, institutions which have intervened in the proceedings are to bear their own costs.
45 Since the applicant has been unsuccessful and the Commission has applied for costs to be awarded, the Court must, in accordance with those provisions, order the applicant to pay the costs while ruling that the Council is to bear its own costs.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby orders:
1. The action is dismissed as being inadmissible;
2. Mr Elmabruk Maftah shall bear his own costs and pay the costs of the European Commission;
3. The Council of the European Union shall bear its own costs.
Luxembourg, 1 September 2011.