ORDER OF THE GENERAL COURT (Sixth Chamber)
2 October 2015 (*)
(Action for annulment — REACH — Imposition of an administrative charge for an error in declaration relating to the size of the undertaking — Rules on languages — Period allowed for commencing proceedings — Inadmissibility)
In Case T‑540/13,
Société européenne des chaux et liants, established in Bourgoin-Jallieu (France), represented by J. Dezarnaud, lawyer,
applicant,
v
European Chemicals Agency (ECHA), represented by M. Heikkilä, A. Iber and C. Schultheiss, acting as Agents,
defendant,
APPLICATION for the partial annulment of ECHA Decision SME(2013) 1665 of 21 May 2013 in so far as it imposes an administrative charge on the applicant,
THE GENERAL COURT (Sixth Chamber),
composed of S. Frimodt Nielsen, President, F. Dehousse (Rapporteur) and A.M. Collins, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 On 9 December 2010 the applicant, Société européenne des chaux et liants, registered two substances with the European Chemicals Agency (ECHA) pursuant to Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1).
2 During the registration procedure, the applicant indicated to the ECHA that it was a ‘small’ enterprise, for the purposes of Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ 2003 L 124, p. 36). That declaration enabled the applicant to receive a reduction of the fee due for any application for registration under Article 6(4) of Regulation No 1907/2006.
3 On 13 February 2013, the ECHA requested the applicant, in accordance with Article 13(3) of Commission Regulation (EC) No 340/2008 of 16 April 2008 on the fees and charges payable to the ECHA pursuant to Regulation No 1907/2006 (OJ 2008 L 107, p. 6), to provide a certain number of documents in order to verify its declaration that it was a small undertaking.
4 By letter of 12 April 2013, the applicant replied that its declaration that it was a ‘small’ undertaking, within the meaning of Recommendation 2003/361, was incorrect and that it was a ‘large’ undertaking within the meaning of that recommendation.
5 By email and letter of 21 May 2013, the ECHA notified the applicant of Decision SME(2013) 1665 (‘the contested decision’). In that decision, the ECHA, in the light of the letter of 12 April 2013 and in accordance with the second subparagraph of Article 13(4) of Regulation No 340/2008, decided that the applicant was not entitled to the fee reductions applicable to ‘small’ undertakings and that it was therefore going to send it two invoices covering the difference between the fees originally paid and those finally due and an invoice for EUR 9 950 for payment of the administrative charge. The contested decision contained a specific reference to the appeal procedures available to the addressee.
6 The ECHA therefore sent the applicant, by email, an invoice dated 22 May 2013 in the amount of EUR 9 950 in respect of the administrative charge.
7 By letter of 15 July 2013 addressed to the ECHA and received by that agency on 25 July 2013, the applicant objected to the imposition of the administrative charge and requested its removal.
8 By email and letter sent to the applicant on 26 July 2013, the ECHA stated that, as mentioned in the contested decision and in accordance with Article 94(1) of Regulation No 1907/2006 and Article 263 TFEU, an appeal against the contested decision could be brought before the General Court within two months following notification of that decision. It added that, for that reason and in the event that the applicant wished to bring an action for the review of the legality of the contested decision, it should bring its action before the General Court.
9 By letter of 30 July 2013, which reached the Court Registry on 5 August 2013 and enclosed the claim of 15 July 2013, the applicant, under the signature of its director Mr M., sought to lodge its application at the Court.
10 By letter and fax of 14 August 2013, the Registrar of the Court drew the applicant’s attention to the fact that, in order to bring an action within the jurisdiction of the General Court, an applicant must be represented by a qualified lawyer of one of the Member States, that an application which is not signed by a lawyer cannot be registered and, therefore, that the letter of 30 July 2013 could not be taken further.
Procedure
11 By application dated 27 September 2013 and lodged at the Court Registry on 1 October 2013, the applicant brought this action.
12 By separate document lodged at the Court Registry on 19 February 2014 pursuant to Article 114(1) of the Rules of Procedure of the General Court of 2 May 1991, the ECHA raised the inadmissibility of the application in the light of the time limits.
13 By document lodged at the Court Registry on 11 March 2014, the applicant submitted its observations on the objection of inadmissibility.
14 The written procedure concerning the objection of inadmissibility ended on 25 March 2014, after the applicant had rectified the submission of its observations on the objection of inadmissibility.
15 On 9 January 2015, by way of measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of the General Court of 2 May 1991, the parties were invited to submit their observations as to the possible relevance of the judgment of 2 October 2014 in Spraylat v ECHA, T‑177/12, ECR, EU:T:2014:849, to the present case and to reply to a question by 12 February 2015.
16 The ECHA acceded to that request on 11 February 2015 and the applicant on 23 February 2015. By decision of the Court of 27 February 2015, the applicant’s response was placed in the case file.
Forms of order sought by the parties
17 The ECHA contends that the Court should:
– declare the action inadmissible;
– order the applicant to pay the costs.
18 The applicant claims that the Court should:
– dismiss the objection of inadmissibility;
– order the ECHA to pay the costs.
Law
19 Under Article 130(1) of the Rules of Procedure of the General Court, the Court may, if the defendant so requests, rule on inadmissibility or lack of competence without going to the substance of the case. In the present case, the Court considers it has sufficient information from the documents in the file and has decided to give a decision without taking further steps in the proceedings.
Arguments of the parties
20 The ECHA maintains that the application, which was lodged on 1 October 2013, is inadmissible because it was out of time.
21 The fact that the contested decision was drawn up in a language other than that of the applicant cannot alter that conclusion.
22 Indeed, the applicant submitted to the ECHA an application for registration in English. The ECHA replied and acted on that application in the same language, in accordance with the second sentence of Article 2 of Regulation No 1 of the Council of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition, 1952-1958 (I), p. 59).
23 In any event, the applicant was acquainted with the contested decision in good time and undoubtedly understood it.
24 Moreover, since there is no general obligation to inform the addressees of measures adopted by the Community institutions concerning the appeals available against those measures, the fact that the notification relating to legal remedies was drawn up in English cannot affect the time limit for lodging the application for annulment.
25 The applicant claims, as regards the lodging in English of its application to register chemical substances, that the letter seeking registration was preprepared in that language and enclosed with the ECHA correspondence, so that the applicant only had to provide accounting details and tick the box corresponding to the size of the undertaking.
26 As regards the ECHA’s assertion that the applicant does not claim not to have understood the contested decision, the applicant, without challenging that assertion, states that the invoice enclosed with that decision, drawn up in French, was sufficient in itself to enable the applicant to conclude that a financial penalty was imposed on it.
27 The applicant notes that on two occasions, namely 15 and 30 July 2013, it stated that it disputed the contested decision, ‘inappropriately, it is true, as regards form, owing, it maintains, to the ambiguities in the letters drafted by the ECHA in a language which was not [the applicant’s native tongue]’.
28 That being so, according to the applicant, the fact that it did indeed dispute that financial penalty does not mean that it had exactly understood the registration file originally received. It is undisputed that the choice of language made by the ECHA was conducive to misinterpretation of the registration file, in that the applicant provided in its registration application financial information relating only to itself and not to its share-holding ‘partner’ undertaking.
Findings of the Court
29 As regards, first, the rules applicable to the periods allowed for commencing proceedings, it should be pointed out that the time limits for bringing proceedings under Article 263 TFEU are a matter of public policy and are not subject to the discretion of the parties or the General Court (order of 15 November 2012 in Städter v ECB, C‑102/12 P, ECR, EU:C:2012:723, paragraph 13).
30 It must also be recalled that the strict application of procedural rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see order of 29 January 2014 in Gbagbo v Council, C‑397/13 P, ECR, EU:C:2014:46, paragraph 7 and the case-law cited).
31 In accordance with the second paragraph of Article 45 of the Statute of the Court of Justice, no derogation from the procedural time limits may be made save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to force majeure (see order in Gbagbo v Council, cited in paragraph 30 above, EU:C:2014:46, paragraph 8 and the case-law cited).
32 Moreover, as regards time limits for instituting proceedings, the concept of excusable error must be interpreted strictly 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 person (see judgment of 22 September 2011 in Bell & Ross v OHIM, C‑426/10 P, ECR, EU:C:2011:612, paragraph 19 and the case-law cited).
33 In the present case, the contested decision was notified to the applicant on 21 May 2013. Under the combined provisions of the sixth paragraph of Article 263 TFEU and Article 102(2) of the Rules of Procedure of 2 May 1991, the time limit for bringing an action against that decision therefore expired at midnight on Wednesday, 31 July 2013.
34 As regards, second, the Union rules on languages, it should be pointed out that, under Article 2 of Regulation No 1, documents which a Member State or a person subject to the jurisdiction of a Member State sends to institutions of the Community may be drafted in any one of the official languages selected by the sender and the reply from the institutions shall be drafted in the same language.
35 Furthermore, under Article 3 of Regulation No 1, documents which an institution sends to a Member State or to a person subject to the jurisdiction of a Member State shall be drafted in the language of such State.
36 Article 104 of Regulation No 1907/2006 provides that Regulation No 1 is applicable to the ECHA.
37 In the present case, it is established that the application for registration was lodged by the applicant in English.
38 It is also established that the contested decision was notified in English, together with an invoice in respect of the administrative charge at issue, drawn up partly in English and partly in French.
39 Furthermore, it is not disputed that the claim sent by the applicant to the ECHA on 15 July 2013 was drafted in French and that, on 26 July 2013, the ECHA replied to that claim by email drafted in the same language.
40 In its observations on the objection of inadmissibility, the applicant, even though the ECHA claims that it understood the contested decision, offers no specific argument and does not state that it did not understand that decision, which imposed, in English, an administrative charge on it. In particular, and as regards more particularly the question of time limits for initiating proceedings, compliance with which is disputed in this objection of inadmissibility, the applicant does not claim that it did not understand the information contained in that decision relating to legal remedies and their time limits.
41 The applicant merely claims, on the substance of the file, that the use of English and technical vocabulary in the procedure for registering its two chemical substances generated the error committed in the declaration of the size of its undertaking, which it considers provides a reason why no administrative charge should be imposed.
42 More generally, the applicant therefore gives no explanation, either in the application or in its observations on the objection of inadmissibility, which, in the light of the case-law cited in paragraphs 31 and 32 above, could account for the fact that the application was not lodged until 1 October 2013.
43 At the very most, the applicant mentions, in the application, that on two occasions, namely 15 and 30 July 2013, it stated that it disputed the contested decision, ‘inappropriately, it is true, as regards form, owing, it maintains, to the ambiguities in the letters drafted by the ECHA in a language which was not [the applicant’s native tongue]’.
44 Even if that consideration, which does not refer to time limits, but only to the form of the objections of 15 and 30 July 2013, were nevertheless to be interpreted as applying also to the question of the late submission of the application, it should be rejected.
45 It should be pointed out that, as regards, at the very least, the part of the contested decision relating to the legal remedies and the time limits for initiating them, the reference to ‘ambiguities’ is clearly irrelevant.
46 Firstly, that part of the contested decision relating to the legal remedies and the time limits for initiating them is, in its English wording, wholly devoid of ambiguity in its description of those remedies and time limits.
47 Secondly, merely referring to an alleged ambiguity logically involves identifying it beforehand and, therefore, inevitably, having an adequate knowledge, for the purpose of that identification, of the language of the text alleged to be ambiguous. In this case, the applicant makes vague references to ambiguities but does not specify them.
48 It follows that, even if the consideration referred to in paragraph 43 above, were to be understood as applying also to the question of time limits for initiating proceedings, that consideration cannot explain, much less justify, why the application was not lodged until 1 October 2013.
49 Furthermore and for the sake of completeness, it should be pointed out that, in reply to the claim in French of 15 July 2013, which reached it on 25 July 2013, the ECHA, by email of 26 July 2013, informed the applicant, in the same language, that proceedings had to be brought before the General Court within two months from the date of the contested decision, and gave it the link to the website of the Court of Justice.
50 Accordingly, the applicant’s reference to alleged ambiguities, already adequately contradicted by the considerations in paragraphs 42 to 47 above, is again refuted by the ECHA’s reiteration, in French, of the information contained in the contested decision relating to the legal remedies and the time limits for initiating them.
51 In response to the information contained in the contested decision and to its reiteration by the ECHA on 26 July 2013, the applicant, rather than arranging for its application, signed by a lawyer, to be lodged within the time limit for initiating proceedings, merely sent it to the General Court in the form of a letter posted on the eve of the expiry of that time limit and signed by a director. It should be pointed out that, according to the case-law, an application which is not signed by a lawyer is affected by a defect which is such as to entail the inadmissibility of the action upon the expiry of the procedural time limits, and cannot be put in order (judgment in Bell & Ross v OHIM, cited in paragraph 32 above, EU:C:2011:612, paragraph 42).
52 It is apparent from all the foregoing considerations that, in the light of the facts of the case and in the absence of circumstances such as those referred to in paragraphs 31 and 32 above, it is appropriate to uphold the objection of inadmissibility raised by the ECHA and to dismiss this application as out of time.
Costs
53 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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the ECHA.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action.
2. Orders the Société européenne des chaux et liants to pay its own costs and those incurred by the European Chemicals Agency (ECHA).
Luxembourg, 2 October 2015.
E. Coulon | | S. Frimodt Nielsen |