Case T‑280/23
Oil company ‘Lukoil’ PAO
v
European Parliament and Others
Order of the General Court (Third Chamber) of 25 January 2024
(Action for annulment – Time limit for bringing proceedings – Out of time – Manifest inadmissibility)
1. Action for annulment – Time limits – Point from which time starts to run – Notification – Concept – Burden of proof of notification
(Art. 263, sixth para., TFEU)
(see paragraph 7)
2. Action for annulment – Time limits – Point from which time starts to run – Notification – Concept – Condition for the decision to be validly notified – Giving the addressee the opportunity to gain effective knowledge of the content of the decision – Included
(Art. 263, sixth para., TFEU)
(see paragraph 8)
3. Action for annulment – Time limits – Point from which time starts to run – Decision notified by email – Proof of notification to the addressee on a specific date – Conditions – Proof that the email was actually communicated to the addressee and that the addressee was in a position to take cognisance of the content of the decision – Included
(Art. 263, sixth para., TFEU)
(see paragraph 9)
4. Action for annulment – Time limits – Point from which time starts to run – Decision notified by email – Presumption of notification – None
(Art. 263, sixth para., TFEU)
(see paragraph 10)
Résumé
Hearing an action for annulment, which it dismisses as manifestly inadmissible on the ground that it is out of time, the General Court applies, for the first time in a field other than civil service, the case-law stemming from the judgment of 1 August 2022, Kerstens v Commission, (1) concerning the calculation of the time limit for bringing an action against a decision notified by email, and, in addition, provides clarifications as regards the single registration principle under the Interinstitutional Agreement on a mandatory transparency register. (2)
By its action lodged at the Court Registry on 17 May 2023, Oil company ‘Lukoil’ PAO, the applicant, established in Moscow, sought the annulment of the decision of the Secretariat of the Transparency Register declaring the removal of the applicant from the Transparency Register of the European Union. (3) That secretariat, by an email of 6 March 2023, notified the contested decision to the applicant. 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’).
Findings of the Court
The Court recalls, first of all, that, 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.
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 party alleging that an action is out of time must show not only that that decision was communicated to its addressee, that is to say that it was transmitted to his or her email address and that he or she 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.
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.
In the present case, the Court finds that, since the contested decision was sent on 6 March 2023, the time limit for seeking its annulment expired, in principle, on 16 May 2023, with the result that, prima facie, the present action is out of time.
Nevertheless, the Court examines the series of arguments on which the applicant relies to claim that the action is not out of time.
In particular, the Court rejects, in the first place, the argument that the email was communicated outside office hours. In accordance with the rules for calculating time limits, ‘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’. (4)
First, the Court observes that, 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, which may be considered only up to 20 working days after the parties concerned have been informed of the decision. (5)
Secondly, the Court notes that, in order to show that the request to reopen the investigation relating to the applicant was brought within that time limit, the applicant’s advisers made explicit reference, in the letter of 31 March 2023, to the fact that the period of 20 working days had begun to run on 7 March 2023 and expired on 3 April 2023.
The Court infers therefrom that 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 its 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 concludes therefrom that the email containing the contested decision was ‘duly notified’ to those representatives on 6 March 2023.
In the second place, the Court rejects the argument that the email containing the contested decision was communicated, on 6 March 2023, only to the representatives of the applicant’s Belgian subsidiary, not to the applicant itself, and that the applicant was therefore not able to gain knowledge of it on that day.
In that respect, the Court notes, in particular, that, in accordance with the guidelines established by the Secretariat of the Transparency Register concerning that register for applicants for registration and for registrants, to ensure that that agreement is applied consistently (‘the guidelines’), interest representatives operating in more than one country (for example multinationals) should, to avoid multiple entries and speed up the administrative handling of an application or registration, register their activities in the register only once and, in doing so, cover the various other entities of a network, corporate group or similar. (6) The guidelines specify that, in practice, this generally falls to the branch or office representing the interests of the entity vis-à-vis the EU institutions.
The Court finds, first, that it is apparent from the extract from the Transparency Register that only the applicant was entered therein. Its Belgian subsidiary did not form the subject of any separate entry and was referred to only as ‘office in charge of relations with the Union’. Therefore, in accordance with the Interinstitutional Agreement (7) and in line with the single registration principle established in the guidelines, (8) the indication of the applicant as the sole organisation entered in the Transparency Register covered all the undertakings in the group to which it belonged in all countries where that group was present, including the Belgian subsidiary.
Secondly, regardless of their respective functions in that subsidiary, by referring in the extract from the register to the names of two directors of that subsidiary as ‘person legally responsible for the entity’ and ‘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. (9)