ORDER OF THE COURT OF FIRST INSTANCE (Eighth Chamber)
30 November 2009 (*)
(Actions for annulment – Period of time for commencing proceedings – Delay – Manifest inadmissibility)
In Case T‑2/09,
Internationale Fruchtimport Gesellschaft Weichert & Co. KG, established in Hamburg (Germany), represented by A. Rinne, lawyer, and S. Kon and C. Humpe, Solicitors,
applicant,
v
Commission of the European Communities,
defendant,
APPLICATION for annulment of Commission Decision C(2008) 5955 final of 15 October 2008 relating to a proceeding under Article 81 EC (Case COMP/39.188 – Bananas), inasmuch as it concerns the applicant, or, alternatively, annulment or reduction of the fine imposed on the applicant,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Eighth Chamber),
composed of M.E. Martins Ribeiro (Rapporteur), President, S. Papasavvas and A. Dittrich, Judges,
Registrar: E. Coulon,
makes the following
Order
1 The applicant, Internationale Fruchtimport Gesellschaft Weichert & Co. KG, is a limited partnership under German law.
2 On 21 October 2008, the applicant was notified of Commission Decision C(2008) 5955 final of 15 October 2008 relating to a proceeding under Article 81 EC (Case COMP/39.188 – Bananas) (‘the contested decision’) by which the Commission of the European Communities found that a number of undertakings, including the applicant, had infringed Article 81 EC by participating in a concerted practice concerning the coordination, in a part of the common market, of reference prices for bananas, and imposed fines on the undertakings.
3 By fax received at the Registry of the Court of First Instance on 2 January 2009, the applicant sent a copy of the application initiating the present action. The original of the application was lodged in the Registry of the Court on 9 January 2009.
4 By letter of the Registrar of the Court of 4 February 2009, the applicant was informed that the present action had not been brought within the period laid down by Article 230 EC and was requested to state, by 20 February 2009, the reasons for the late lodging of the application.
5 By decision of the President of the Court of First Instance of 9 February 2009, the case was assigned to the Eighth Chamber.
6 By letter of 20 February 2009, the applicant lodged its observations concerning the late lodging of the application and requested that the Court depart from the prescribed time-limit, setting out the reasons justifying, in its submission, the lodging of the application on 2 January 2009.
Forms of order sought by the applicant
7 The applicant claims that the Court should:
– annul the contested decision so far as it relates to the applicant;
– alternatively, amend Article 2 of the contested decision to annul or substantially reduce the fine imposed on the applicant to an appropriate amount;
– order the Commission to pay the costs.
Law
8 Under Article 111 of the Rules of Procedure of the Court of First Instance, where the action is manifestly inadmissible, the Court of First Instance may, by reasoned order, give a decision on the action.
9 In the present case, the Court considers that it has sufficient information from the documents in the court file and decides, pursuant to that article, to give a decision on the action without taking further steps in the proceedings.
10 Under the fifth paragraph of Article 230 EC, an action for annulment is to be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.
11 In addition, in accordance with Article 102(2) of the Rules of Procedure, the prescribed time-limits are to be extended on account of distance by a single period of 10 days.
12 According to settled case-law, that period of time for commencing proceedings 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, and the Community judicature must ascertain, even of its own motion, whether it has been observed (see, to that effect, Case C‑246/95 Coen [1997] ECR I-403, paragraph 21; Joined Cases T‑121/96 and T‑151/96 Mutual Aid Administration Services v Commission [1997] ECR II‑1355, paragraphs 38 and 39, and the order of 19 June 2008 in Case T‑158/08 Comune di Ne and Others v Commission, not published in the ECR, paragraph 7).
13 With regard to the rules for calculating the periods, Article 101(1)(a) of the Rules of Procedure states that, where a period expressed in months 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 is not to be counted as falling within the period in question.
14 In addition, Article 101(1)(b) of the Rules of Procedure provides that a period expressed in months is to end with the expiry of whichever day in the last month falls on the same date as the day during which the event or action from which the period is to be calculated occurred or took place.
15 As the Court of Justice has held, that provision, which excludes from the calculation of the period of time for commencing proceedings the day when the event occurred from which that period runs, seeks to ensure that parties are able to make full use of the periods allowed. In the case of an event which must be notified, time does not begin to run until the end of the day of notification regardless of the hour of day when that notification took place. The Court has added that, where the period of time for commencing proceedings is expressed in months, it thus expires at the end of the day which, in the month indicated by the time-limit, bears the same number as the day from which time was set running, that is to say the day of notification (Case 152/85 Misset v Council [1987] ECR 223, paragraphs 7 and 8; see also, by analogy, the orders in Case C‑406/01 Germany v Parliament and Council [2002] ECR I‑4561, paragraph 14, and Case T‑190/08 CHEMK and KF v Council and Commission, not published in the ECR, paragraph 21).
16 In the present case, it is apparent from the documents in the case file that the period laid down in the fifth paragraph of Article 230 EC started to run at midnight on 22 October 2008, the day following the notification of the contested decision, and ended at midnight on 21 December. Extended on account of distance by a single period of 10 days, the period of time for commencing proceedings therefore expired at midnight on 31 December 2008.
17 Given that the copy of the application was sent by fax to the Registry of the Court on 2 January 2009, the original having been lodged on 9 January 2009, the action was brought after the expiration of the time-limit.
18 The applicant concedes in its observations that the action was lodged late, that lateness resulting, in its submission, from a genuine misunderstanding on the part of its representatives of the operation of the Rules of Procedure. More specifically, the applicant provides, in the Annex to its observations, a witness statement from one of its representatives stating that three of his associates considered, in good faith, that the period of time expired, according to a reading of Article 101(1)(a) and (2) together with Article 102(2) of the Rules of Procedure, on 2 January 2009.
19 The applicant also puts forward a number of arguments which, notwithstanding the late lodging of the action, would justify the Court in declaring it to be admissible. First, the applicant would suffer significant injustice and damage if the action were declared inadmissible. Next, the application was only just out of time and there is a good explanation for the late lodging of the action. Further, the admissibility of the action would create no material prejudice to legal certainty or to the Commission. Lastly, in any event, the principle of proportionality and the right of access to a court, guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, outweighs the principle of legal certainty, which would, in particular, be acknowledged under the law of criminal procedure in Germany and the United Kingdom.
20 In the first place, it should be recalled that the Court has repeatedly held that no derogation from the application of the Community rules on procedural time-limits may be made, save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to force majeure, in accordance with the second paragraph of Article 45 of the Statute of the Court of Justice, since the strict application of those rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see, the order in Case C‑242/07 P Belgium v Commission [2007] ECR I‑9757, paragraph 16 and the case-law cited).
21 On the one hand, the applicant has, in the present case, neither established nor relied on the existence of unforeseeable circumstances or of force majeure. On the other hand, to the extent that, by relying on the incorrect interpretation of the provisions of the Rules of Procedure by its representatives, it intends to rely on an excusable error, it must be pointed out 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 strict application of the abovementioned rules (order in Germany v Parliament and Council, paragraph 15 above, paragraph 21; order in Case T‑126/00 Confindustria and Others v Commission [2001] ECR II‑85, paragraph 21, and Joined Cases T‑142/01 and T‑283/01 OPTUC v Commission [2004] ECR II‑329, paragraph 44).
22 In the second place, it follows from the case-law that the Community legal order does not in fact aim, in principle, to define its concepts on the basis of one or more national legal systems without express provision to that effect (Case 64/81 Corman [1982] ECR 13, paragraph 8, and Case C‑296/95 EMU Tabac and Others [1998] ECR I‑1605, paragraph 30). Consequently, it is necessary to dismiss the arguments derived from the law of criminal procedure in Germany and the United Kingdom.
23 In the third place, in so far as the applicant relies on the right to effective judicial protection, that right is adequately protected by the possibility for the applicant to bring an action against the act adversely affecting him within the time-limit laid down by Article 230 EC (see, by analogy, Case T‑414/06 P Combescot v Commission [2008] ECR I‑0000, paragraph 44) and is in no way affected by the strict application of the Community legislation concerning periods of time for commencing proceedings. Accordingly, neither the right of access to a court nor the principle of proportionality justifies derogating from the time-limits in the light of the allegedly exceptional circumstances relied on.
24 It follows from the foregoing considerations that the appeal must be dismissed in its entirety as manifestly inadmissible, without its being necessary to serve it on the Commission.
Costs
25 As the present order has been adopted before the application was notified to the Commission and before the Commission was able to incur costs, it suffices to decide that the applicant shall bear its own costs, in accordance with Article 87(1) of the Rules of Procedure.
On those grounds,
THE COURT OF FIRST INSTANCE (Eighth Chamber)
hereby orders:
1. The action is dismissed as manifestly inadmissible.
2. Internationale Fruchtimport Gesellschaft Weichert & Co. KG is ordered to bear its own costs.
Luxembourg, 30 November 2009.
E. Coulon | | M.E. Martins Ribeiro |