ORDER OF THE GENERAL COURT (First Chamber)
4 July 2012 (*)
(Actions for annulment – Period allowed for commencing proceedings – Point from which time starts to run – Absence of excusable error – Manifest inadmissibility)
In Case T‑350/09,
ICO Satellite Ltd, established in Slough (United Kingdom), represented by S. Tupper, Solicitor, D. Anderson QC, and D. Scannell, Barrister,
applicant,
v
European Commission, represented by G. Braun and A. Nijenhuis, acting as Agents, assisted by D. Van Liedekerke and K. Platteau, lawyers,
defendant,
supported by
Council of the European Union, represented by F. Florindo Gijón and G. Kimberley, acting as Agents,
and by
Solaris Mobile Ltd, established in Dublin (Ireland), represented by J. Wheeler, Solicitor, and A. Robertson, Barrister,
interveners,
APPLICATION for annulment of Commission Decision 2009/449/EC of 13 May 2009 on the selection of operators of pan-European systems providing mobile satellite services (MSS) (OJ 2009 L 149, p. 65),
THE GENERAL COURT (First Chamber),
composed of J. Azizi (Rapporteur), President, S. Frimodt Nielsen and D. Gratsias, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, ICO Satellite Ltd, is a United Kingdom company.
2 This case concerns an application for the annulment of Commission Decision 2009/449/EC of 13 May 2009 on the selection of operators of pan-European systems providing mobile satellite services (MSS) (OJ 2009 L 149, p. 65) (‘the contested decision’).
3 The contested decision was adopted on the basis of Decision No 626/2008/EC of the European Parliament and of the Council of 30 June 2008 on the selection and authorisation of systems providing mobile satellite services (MSS) (OJ 2008 L 172, p. 15) (‘the basic decision’).
4 The basic decision harmonises the selection, authorisation, monitoring and enforcement procedures in respect of operators providing mobile satellite services. It creates a Community procedure for the common selection of operators of mobile satellite systems that use the 2 GHz frequency band, comprising radio spectrum from 1980 to 2010 MHz for earth to space communications, and from 2170 to 2200 MHz for space to earth communications (recital 1 in the preamble to the contested decision).
5 On 7 August 2008, the Commission of the European Communities published a call for applications for pan-European systems providing MSS in the Official Journal of the European Union (recital 2 in the preamble to the contested decision). Four applications were submitted within the period for the submission of applications, including the applicant’s.
6 By the contested decision, the Commission decided not to select the applicant.
7 Article 1 of the contested decision provides:
‘ICO Satellite Limited and … are not eligible applicants as a result of the first selection phase of the comparative selection procedure provided in Title II of Decision No 626/2008/EC.’
8 Recital 20 in the preamble to the contested decision sets out the reasons why the Commission took the view that the applicant was not an eligible applicant:
‘As regards milestone two … lack of contractual and up-to-date evidence for the construction milestones leading to the completion of manufacture of the satellites required for the provision of commercial MSS led the Commission to consider, in accordance with Article 5(1) of Decision No 626/2008/EC, that this milestone had not been satisfactorily completed by ICO Satellite Limited.’
9 Article 5 of the contested decision provides:
‘This Decision is addressed:
1. to the Member States; and
2. (a) to ICO Satellite Limited, 269 Argyll Avenue, Slough SL1 4HE, United Kingdom;
…’
10 On 15 May 2009, the full and confidential version of the contested decision was notified to the applicant through an express courier service. It is apparent from the delivery report that the document was delivered and signed for on 15 May 2009. The notification was addressed to the applicant’s principal place of business, as stated in the contested decision in Article 5(2)(a), which corresponds to the address stated by the applicant in the selection procedure.
11 On 12 June 2009, a non-confidential version of the contested decision was published in the Official Journal of the European Union. That version removed a certain quantity of data, including part of recital 20 in the preamble to the contested decision, which specified the reasons why the applicant was not found to be an eligible applicant by the Commission.
Procedure and forms of order sought
12 By application lodged at the Registry of the General Court on 4 September 2009 the applicant brought the present action.
13 The case was initially allocated to the Fourth Chamber of the General Court.
14 By document lodged at the Registry of the General Court on 2 December 2009, the Council of the European Union sought leave to intervene in the present proceedings in support of the defendant. By order of 15 March 2010, the President of the Fourth Chamber of the General Court granted leave to intervene. The intervener lodged its statement in intervention and the other parties lodged their observations on that statement within the period prescribed.
15 By separate document lodged at the Registry of the General Court on 7 December 2009, the Commission raised a plea of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the General Court. By order of the General Court of 15 March 2010, the plea of inadmissibility was joined to the main proceedings and costs were reserved.
16 On 7 July 2010, the present case was reallocated to the Third Chamber of the General Court.
17 Following changes to the composition of the Chambers of the General Court, the Judge-Rapporteur was assigned to the First Chamber, to which the present case has therefore been allocated.
18 By document received at the General Court Registry on 9 August 2010, Solaris Mobile Ltd sought leave to intervene in the present proceedings in support of the defendant. By order of 24 November 2010, the President of the First Chamber of the General Court granted leave to intervene. Solaris Mobile did not lodge a statement in intervention.
19 As one member of the Chamber was unable to sit in the present case, the President of the General Court designated another judge to complete the Chamber pursuant to Article 32(3) of the Rules of Procedure.
20 The applicant claims that the Court should:
– annul the contested decision;
– order the defendant to pay the costs;
– take any further action the Court may deem appropriate.
21 The Commission contends that the Court should:
– dismiss the application as inadmissible or unfounded;
– order the applicant to pay the costs.
Law
22 Article 111 of the Rules of Procedure provides that where the action is manifestly inadmissible, the General Court may, by reasoned order, and without taking further steps in the proceedings, give a decision on the action.
23 The Commission pleads that the action is inadmissible because it is out of time. It submits that, as the contested decision was notified to the individual addressees, including the applicant, prior to the publication of a non-confidential version in the Official Journal of the European Union, the period allowed for commencing proceedings began to run, for those addressees, in accordance with Article 254(3) EC, as from the date of notification, namely 15 May 2009, and not as from the subsequent date of publication in the Official Journal of the European Union, namely 12 June 2009. The action which the applicant brought on 4 September 2009, that is to say almost four months after the notification of the contested decision, is manifestly inadmissible because it is out of time.
24 In its observations on the plea of inadmissibility, the applicant submits that its action is admissible. It takes the view that the publication of the contested decision in the Official Journal of the European Union, and not the notification of that decision, is decisive in calculating the time-limit for bringing proceedings. In the alternative, the applicant submits that any error of assessment on its part in respect of the period allowed for commencing proceedings was excusable.
25 As a preliminary point, it must be stated that, despite the entry into force during the present proceedings, that is to say on 1 December 2009, of Article 263 TFEU, the question of the admissibility of the action for annulment must be decided on the basis of the fifth paragraph of Article 230 EC alone (Case T-291/04 Enviro Tech Europe and Enviro Tech International v Commission [2011] ECR II-0000, paragraph 98; see, to that effect, orders in Case T-532/08 Norilsk Nickel Harjavalta and Umicore v Commission [2010] ECR I-0000, paragraphs 68 to 75, and in Case T-539/08 Etimine and Etiproducts v Commission [2010] ECR I‑0000, paragraphs 74 to 81).
26 The fifth paragraph of Article 230 EC provides that 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.
27 In accordance with Article 102(2) of the Rules of Procedure, the time-limit for commencing proceedings is to be extended on account of distance by a single period of 10 days.
28 It has consistently been held that the time-limit for bringing actions is a matter of public policy, since it 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 (Case C‑246/95 Coen [1997] ECR I‑403, paragraph 21, and Joined Cases T‑121/96 and T‑151/96 Mutual Aid Administration Services v Commission [1997] ECR II‑1355, paragraph 38). The Courts of the European Union must ascertain of their own motion whether that time-limit was observed (Mutual Aid Administration Services v Commission, paragraph 39).
29 It is apparent from the fifth paragraph of Article 230 EC that notification is the operation by which the author of a decision of individual relevance, such as a decision taken pursuant to Article 254(3) EC, 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 is based (see, to that effect, Case T-17/02 Olsen v Commission [2005] ECR II‑2031, paragraph 74 and the case-law cited in that paragraph).
30 Moreover, under Article 254(3) EC, decisions are to be notified to those to whom they are addressed and take effect upon such notification.
31 In the present case, the full and confidential version of the contested decision was notified individually to the applicant, which that decision expressly names as an addressee, as is apparent from Article 5(2)(a) of that decision. Consequently, pursuant to Article 254(3) EC, as a decision of individual relevance, it took effect with regard to the applicant when it was notified to it on 15 May 2009.
32 Furthermore, the applicant does not dispute that it is an addressee of the contested decision or that it received notification of it on 15 May 2009.
33 In the present case, in accordance with Article 101(1)(a) and (b), Article 101(2) and Article 102(2) of the Rules of Procedure, the period for commencing proceedings began to run on 16 May 2009, that is to say on the day following the date on which the contested decision was notified, and expired at midnight on 27 July 2009, the period of 10 days allowed to the applicant on account of distance having been included and the fact that 26 July 2009 was a Sunday having been taken into account.
34 The applicant did not lodge its application until 4 September 2009. Consequently, the action was brought after the expiry of the period for commencing proceedings and was therefore out of time.
35 In that regard, it is necessary to reject the applicant’s argument that it is apparent from Article 6(4) of the basic decision, pursuant to which decisions on the selection of applicants must be published in the Official Journal of the European Union within one month of their adoption, that the period for commencing proceedings did not begin to run until the date of that publication. In the present case, the publication in the Official Journal of the European Union, on 12 June 2009, of the contested decision, in a non-confidential version (see paragraph 11 above) was not the point at which it took effect in a legally binding manner with regard to the applicant. Unlike the acts of general application referred to in Article 254(2) EC, acts of individual application, inter alia decisions, referred to in Article 254(3) EC take effect on the date when they are notified to their addressees. That assessment is borne out by the fact that neither the basic decision nor the contested decision provides for a specific date on which the latter decision is to enter into force, nor do they state that the contested decision will not enter into force until the twentieth day following its publication in the Official Journal of the European Union.
36 Furthermore, the case-law deriving from the judgment in Case C-122/95 Germany v Council [1998] ECR I-973, which is relied on by the applicant, is not relevant in the present case. In particular, in that case, the contested act was a regulation which was adopted following an international agreement by the European Community in the context of the GATT agreements, that is to say an act of general application addressed to all the Member States the publication of which in the Official Journal of the European Union made the period for commencing proceedings start to run in accordance with Article 254(2) EC.
37 Furthermore, the applicant has not proved or even invoked the existence of unforeseeable circumstances or of force majeure, which would permit the Court to derogate from the time-limit in question on the basis of the second paragraph of Article 45 of the Statute of the Court of Justice, applicable to proceedings before the General Court pursuant to Article 53 of that statute.
38 The applicant however submits, in the alternative, that it made an excusable error in its assessment of the period for commencing proceedings. In that regard, it refers, first, to the alleged conduct of the Commission which, it submits, gave the clear impression that the contested decision would be published in the Official Journal of the European Union and that the period for commencing proceedings would not begin to run prior to that publication. Secondly, it submits, in essence, that it was entitled to entertain reasonable doubts as to the event which, in the present case, triggered the period for commencing proceedings, on account of the unclear nature of the relevant case-law.
39 It is settled case-law that an excusable error may, in exceptional circumstances, allow an applicant not to be out of time (order of 26 October 2000 in Case C-165/99 Austria v Commission, not published in the ECR, paragraph 17, and order of 13 January 2009 in Case T-456/08 SGAE v Commission, not published in the ECR, paragraph 17).
40 The applicant’s argument that, in essence, the Commission gave it the impression that the period for commencing proceedings would not begin to run before the publication of the contested decision has no factual basis. It is not apparent from the case-file that the Commission gave the applicant any assurances to that effect. The applicant relies in that regard, first, on the provisions of the basic decision and, secondly, on the Commission’s letter of 14 May 2009, which accompanied the notification of the contested decision. Although the contested decision provides for the publication of decisions such as the contested decision in the Official Journal of the European Union, it does not contain any information as to the date from which the period for bringing an action for annulment of those decisions must be calculated. As for the letter of 14 May 2009, it merely informed the applicant that a non-confidential version of the contested decision was going to be published in the Official Journal of the European Union and requested that it submit its comments on the possible confidentiality of information concerning it which was included in that decision. Likewise it contained no reference to the period for bringing an action for annulment of the contested decision and to the date on which that period began to run.
41 The concept of excusable error, which arises directly out of a concern that the principles of legal certainty and the protection of legitimate expectations should be upheld, can apply only to altogether 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 exercising all the diligence required of a normally experienced person (Case T-12/90 Bayer v Commission [1991] ECR II‑219, paragraphs 28 and 29, and order in Case T-468/10 Doherty v Commission [2011] ECR II-0000, paragraphs 27 to 28).
42 It must be pointed out that the legislation relating to the periods applicable in the present case did not pose any particular difficulty of interpretation (see, to that effect, order in Case T-126/00 Confindustria and Others v Commission [2001] ECR II-85, paragraph 21 and judgment in Joined Cases T-142/01 and T-283/01 OPTUC v Commission [2004] ECR II-329, paragraph 44) and that the applicant was perfectly capable of recognising that the full and confidential version of the contested decision was individually addressed and notified to him. Consequently, it cannot be held that there was an excusable error in the present case.
43 It follows from all of the foregoing considerations that the action must be dismissed as manifestly 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. As the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
45 Under the third and fourth subparagraphs of Article 87(4) of the Rules of Procedure, on the one hand, the institutions which intervened in the proceedings are to bear their own costs and, on the other, the Court may order an intervener to bear his own costs. The Council and Solaris Mobile shall bear their own costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1. The action is dismissed as manifestly inadmissible.
2. ICO Satellite Ltd shall bear its own costs and pay those incurred by the European Commission.
3. The Council of the European Union and Solaris Mobile Ltd shall bear their own costs.
Luxembourg, 4 July 2012.