EuG · T-148/98

BIB.ORDERT-148/98T-162/9861998B01480010.000128391285517TORDER OF 29. 9. 1999 — JOINED CASES T-148/98 AND T-162/98 EVANS AND OTHERS V COMMISSION Order of the Court of First Instance (Second Chamber) 29 September 1999(*) In Joined Cases T-148/98 and T-162/98, J.G. Evans, Gerry Plant and Mary Kathleen Plant, Dennis Jones, William Meyrick, Glen Jones and Daphne Jones, David V. Austin, Mostyn Jones, Fforch-y-Garron Coal Company Ltd, John Phillips, Desmond Ivor Evans, David Raymond Evans, D.B. Diplock, R.T. Kingston, J.R. McCann, De Powell, established in the United Kingdom, represented by Barbara Hewson, of the Bar of England and Wales, and Thomas Graham, Solicitor, with an address for service in Luxembourg at the office of Messrs Loesch and Wolter, 11 Rue Goethe, South Wales Small Mines Association, an association in English law based in Fochriw, Near Bargoed, United Kingdom, represented by Thomas Sharpe QC and Mark Brealey, Barrister, of the Bar of England and Wales, and Sarah Llewellyn Jones, Solicitor, with an address for service in Luxembourg at the office of Victor Gillen, 13 Rue Aldringen, applicants, vCommission of the European Communities, represented by Kirsi Leivo, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg, defendants, APPLICATION for annulment of Commission Decision No 15656 of 30 July 1998 rejecting a complaint of price discrimination, THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber), composed of: A. Potocki, President, C.W. Bellamy and A.W.H. Meij, Judges, Registrar: H. Jung, makes the following Order Facts and procedure 1The South Wales Small Mines Association (hereinafter ‘SWSMA’) is an unincorporated association under English law founded to represent the interests of small coal producers in South Wales. 2Some of those small producers collectively submitted to the Commission a complaint dated 5 June 1990 in SWSMA's name concerning the alleged application of discriminatory business terms contrary to the relevant provisions of the ECSC Treaty. 3By Decision No 15656 (hereinafter ‘the Decision’), which was contained in a letter of 30 July 1998, the Commission stated that it would not be acting on the complaint. 4On 5 August 1998, the letter of 30 July 1998 containing the Decision was notified to SWSMA by registered post with form of acknowledgement of receipt. 5By letter of 18 August 1998, confirmed on 26 August 1998, a number of small producers requested the Commission to notify them formally of the Decision, which the Commission, by letter of 24 August 1998, declined to do. 6After learning on 16 September 1998 that SWSMA had not challenged the Decision within the prescribed time-limit, those producers, by application lodged at the Registry of the Court on 21 September 1998 (Case T-148/98), brought an action against the Commission under the second paragraph of Article 33 and Article 35 of the ECSC Treaty. The applicants stated at paragraph 2 of their application: ‘A copy of the Decision is annexed at Appendix 1 to this Application’. 7By application lodged at the Registry of the Court on 6 October 1998, SWSMA brought an action under the second paragraph of Article 33 of the ECSC Treaty for annulment of the Decision (Case T-162/98). 8Pursuant to Article 114(1) of the Rules of Procedure of the Court of First Instance, the Commission raised an objection of inadmissibility in both cases by documents lodged on 23 November (Case T-162/98) and 14 December 1998 (Case T-148/98). 9The applicants submitted their observations on those objections by documents lodged on 7 January (Case T-162/98) and 17 February 1999 (Case T-148/98). 10PowerGen UK plc (hereinafter ‘PowerGen’), National Power pic (‘National Power’) and British Coal Corporation have made applications for leave to intervene in both cases in support of the form of order sought by the Commission. 11By a letter lodged on 25 June 1999, a request for legal aid was made under Article 94 of the Rules of Procedure on behalf of some of the applicants in Case T-148/98. 12The Court (Second Chamber) considered it appropriate to join the two cases for the purposes of this order, in application of Article 50 of the Rules of Procedure. Forms of order sought 13The applicants claim that the Court should: — annul the Decision, — order the Commission to pay the costs. 14The Commission contends that the Court should: — dismiss the actions as inadmissible, — order the applicants to pay the costs. 15In their observations, the applicants submit that the objections of inadmissibility should be dismissed. Admissibility 16Under Article 114 of the Rules of Procedure, if a party so requests, the Court shall give a decision on admissibility without ruling on the substance of the case. Under Article 114(3), the remainder of the proceedings is to be oral unless the Court otherwise decides. In this case, the Court considers that it has sufficient information from examining the documents on the file and decides that there is no need to open the oral procedure. Arguments of the parties Case T-162/98 17In support of its objection of inadmissibility, the Commission observes that it notified the Decision to SWSMA at the only address communicated to it. It states that Bernard John Llewellyn acknowledged, at that address and on behalf of SWSMA, receipt of the letter containing the Decision. 18In accordance with the relevant provisions of the ECSC Treaty and the Rules of Procedure, the applicant should have brought its action within a period of one month from the day following due notification to it of that letter, which occurred on 5 August 1998, plus the ten-day extension of time on account of distance in respect of persons based, as in this case, in the United Kingdom — that is to say, by 15 September at the latest. The action, which was brought on 6 October 1998, is therefore manifestly out of time and, as a result, inadmissible. 19The applicant does not deny that the registered letter with form of acknowledgement of receipt was an appropriate means of notification. Neither does it deny that it received due notification of the Decision, since it was able to apprise itself thereof, even though the letter was sent to Bernard John Llewellyn's home address. Nor, finally, does the applicant claim that the Commission was under a duty to send a copy of the Decision to its advisers. 20However, the applicant requests the Court to extend the period prescribed for bringing the action since the failure to comply with that time-limit is wholly attributable to an excusable error. The applicant states that it is a modest association, the main purpose of whose continued existence is to pursue the complaint, the conduct of which has been virtually exclusively in the hands of its solicitors. 21In fact, the applicant points out, in his sworn affidavit of 4 January 1999 Bernard John Llewellyn states that he took no further action following the receipt by him of the Commission's letter. He adds that the indorsement ‘cc: T. Llewellyn Jones’ on the Decision caused him to assume that the Commission had sent a copy to Miss Llewellyn Jones of T. Llewellyn Jones, SWSMA's solicitors, and that she had acted on it promptly. 22Clearly, therefore, the applicant had been led to make the excusable error of believing that its legal advisers would take action in good time. However, they received no letter and the Decision did not come to their attention until 8 September 1998. Case T-148/98 23In support of its objection of inadmissibility, the Commission maintains, inter alia, that the one-month period prescribed in the third paragraph of Article 33 of the ECSC Treaty for bringing an action began to run in regard to the applicants on the same day as that on which it began to run in regard to SWSMA. Since the application initiating the proceedings was lodged at the Registry of the Court on 21 September 1998, the action is out of time. 24In the Commission's submission, if it were the case that for each SWSMA member the period allowed for bringing an action began to run only when it was established that he was informed of a decision addressed to the association, this would lead to an unacceptable degree of legal uncertainty and to a real possibility of the rules on time-limits for bringing actions being circumvented. It is clear from the applicants' pleadings that one of the reasons for their action is indeed SWSMA's failure to bring an action within the prescribed period. 25In their application, the applicants claim that they were unaware of the Decision until one of them received from a third party, on 10 August 1998, a copy of the letter containing the Decision (‘The Applicants did not learn of it, until one of the Applicants received a copy of the decision-letter on 10 August 1998 from a third party’). 26In their observations on the objection of inadmissibility, the applicants confirm that one of them received a copy of the Decision by chance on 10 August 1998 (‘Fortuitously, one of the Applicants was given a copy of the Decision on 10 August 1998’). As soon as the applicants and their solicitors became aware of the Decision on that date, they immediately instructed Counsel in London to advise. 27On the basis that the fortuitous receipt by one of the applicants of a copy of the Decision on 10 August 1998 is treated as effective notification, then the action was brought in time. 28Furthermore, the applicants state that the person who acknowledged receipt of the letter containing the Decision on behalf of SWSMA had no authority to do so since he was no longer an officer of SWSMA. The period for bringing an action does not begin to run until the Decision has been notified to a person qualified to receive it. Findings of the Court 29It must first of all be observed that it is settled case-law that the period prescribed for bringing an action for annulment is mandatory and is not subject to the discretion of the parties or the Court, 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 (Joined Cases T-l21/96 and T-151/96 Mutual Aid Administration Services ν Commission [1997] ECR II-1355, paragraph 38). Case T-162/98 30It is common ground that the Decision was duly notified to the applicant and that the applicant did not bring its action until after the expiry of the period prescribed for doing so. 31The excusable error relied on by the applicant in order to obtain an extension of a mandatory time-limit for bringing an action concerns 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 the party concerned (Case C-195/91 P Bayer v Commission [1994] ECR I-5619, paragraph 26). 32It is clear from the combined provisions of the third paragraph of Article 33 and the second paragraph of Article 15 of the ECSC Treaty that the period prescribed for bringing an action for annulment begins to run from the time when the individual decision under challenge is notified to the undertaking or association of undertakings to which it is addressed. 33Since the Decision was duly notified to the applicant, it was for the applicant to contact its advisers in order to agree with them on the steps to be taken in response to the Decision and to exercise its right of action within the period prescribed for that purpose. 34Even if, as the applicant claims, its solicitors did not receive a copy of the Decision from the Commission, the risk of an oversight, or that a letter sent by ordinary post might be lost, should have prompted the applicant to give them appropriate instructions without delay for the defence of its interests. 35In relying entirely on the initiative of its solicitors, the applicant therefore did not conduct itself in the manner of a reasonably diligent party. 36In those circumstances, the fact that the Decision bears the indorsement ‘cc: T. Llewellyn Jones’ cannot constitute an exceptional circumstance such as to render the applicant's error excusable. 37It follows that the applicant's arguments must be rejected as unfounded and the action in Case T-162/98 dismissed as inadmissible. Case T-148/98 38Notwithstanding the applicants' reference to Article 35 of the ECSC Treaty, their action must be classified as an action for annulment under Article 33 of the ECSC Treaty, as is confirmed by the first head of their claim for relief. 39Since SWSMA does not deny that it received notification of the Decision on 5 August 1998, the applicants cannot validly claim that Bernard John Llewellyn was not qualified to receive the letter containing the Decision on behalf of the association. 40Should it be the case that the one-month period for bringing an action laid down by the third paragraph of Article 33 of the ECSC Treaty, plus the ten-day extension of time on account of distance, must be calculated from 10 August 1998, the date on which one of the applicants is said to have received a copy of the Decision from a third party, that period would have expired on 20 September 1998. As that date fell on a Sunday, the expiry of the period would, under the first subparagraph of Article 101(2) of the Rules of Procedure, have been postponed until midnight on Monday 21 September 1998. The action, which was brought by application lodged on 21 September 1998, would therefore have been brought on the last day of the prescribed period. 41However, a party may only put forward, in support of its claims, facts which are sufficiently specific and detailed for the Court to regard them, at the very least, as credible and to enable the opposing party to contest them in an effective manner and, if appropriate, to submit evidence in rebuttal. That requirement as to the facts to be adduced, which relates to matters known only to the applicants, ensures that the Court does not come to rule on circumstances which are purely theoretical or are contrived solely for the purposes of the action. 42The Court first of all requested the applicants to identify the third party through whom one of them allegedly received a copy of the Decision; secondly, to identify the applicant in question; and thirdly, and finally, to describe the exact circumstances in which it came to be received, and exactly how the Decision became known to the other applicants. 43The applicants gave the following replies to those questions: 1.‘The Applicant Mr Mostyn Jones he (sic) cannot recall who the third party was, he thinks he obtained it from one of the persons who Sarah Llewellyn Jones represents.’ 2.‘Mr Mostyn Jones.’ 3.‘The Applicant Mr Jones cannot recall the exact circumstances.The Other Applicants became aware of it by Mr Jones informing some of them of the decision and the Applicants communicating directly with one another.’ 44Given that the Commission notified the Decision only to SWSMA and that the Decision was not even sent to SWSMA's solicitors, who did not learn of it until 8 September 1998, it seems unlikely that, as has been asserted, one of the applicants received a copy of the Decision on 10 August 1998 from an unidentified third party. 45The answers given to the questions put by the Court make that lack of credibility only more apparent. What emerges from the laconic and evasive terms in which those answers are couched is that, whilst Mr Mostyn Jones remembers the exact date on which he received a copy of the Decision, that date being the alleged starting point of the period prescribed for bringing the action, he has forgotten both the identity of the person from whom, and the circumstances in which, he received it. 46The only piece of information provided by Mr Mostyn Jones is that he thinks he obtained the document from one of the persons represented by Sarah Llewellyn Jones, SWSMA's adviser. That, however, runs counter to the statements of Bernard John Llewellyn, who says that he took no further action following the receipt by him of the letter containing the Decision, and to the fact that the Decision did not come to the attention of SWSMA's solicitors until 8 September 1998. 47It follows that the applicants have been unable to make out a sufficiently detailed and convincing case for their claim that the starting point of the period prescribed for initiating proceedings was such as to enable the Court to hold that their action was brought in time. 48It necessarily follows that the action in Case T-148/9 8 must be held to have been brought out of time. 49That action must therefore be dismissed as inadmissible and there is no need to consider the other pleas raised by the Commission in support of its objection of inadmissibility or to rule on the application for legal aid or the applications for leave to intervene. Costs 50Under 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. Since the applicants have been unsuccessful, they should be ordered to pay the costs, as applied for by the Commission. On those grounds, THE COURT OF FIRST INSTANCE (Second Chamber) hereby orders: 1.Cases T-148/98 and T-162/98 are joined for the purposes of this order. 2.The actions are dismissed as inadmissible. 3.It is unnecessary to rule on the application for legal aid made in Case T-148/98. 4.It is unnecessary to rule on the applications for leave to intervene made by PowerGen UK plc, National Power plc and British Coal Corporation. 5.The applicants shall bear their own costs and, jointly and severally, pay those incurred by the Commission. Luxembourg, 29 September 1999. H. Jung Registrar A. Potocki President (*)Language of the case: English.