C-209/83

T H E C O U R T (Second Chamber)

composed of: K'. Bahlmann, President of Chamber, P. Pescatore and O. Due, Judges,

Advocate General : P. VerLoren van Themaat Registrar: D. Louterman, Administrator

gives the following

JUDGMENT

Facts and Issues

premises of the undertaking Ferriera Upon hearing the report of the Judge- Valsabbia investigations into the prices of Rapporteur and the views of the steel invoiced by that undertaking. After Advocate General, the Court decided to the investigation had disclosed in- open the oral procedure on the question fringements of Article 60 of the ECSC of admissibility without any preparatory Treaty, the Commission, by letter dated inquiry. 18 August 1982, notified the undertaking of them and invited it to submit its comments in accordance with Article 36 By an order of 29 February 1984 the of the Treaty. Ferriera Valsabbia did so Court assigned the case to the Second. at a hearing held at the Commission on Chamber. 15 October 1982 and by letters of 17 November and 16 December 1982. On 14 July 1983 the Commission adopted The Commission claims that the Court the contested decision fining the should declare the application in- applicant LIT 284 240 000 for the admissible and order the applicant to pay alleged infringements of Article 60 of the the costs. ECSC Treaty, which, according to the Commission, consisted in the failure to adhere to its price-list owing to increases The applicant contends that the Court in the prices charged for reinforcing should dismiss the objection of in- bars, billets and wire rod sold in July and admissibility and proceed to examine the August 1981. That decision was notified substance of the case. to the applicant by registered letter of 21 July 1983. Valsabbia then brought this action under Article 36 of the ECSC Treaty. In its application, which was I I I — Submissions and arguments lodged at the Court Registry on 19 of the parties September 1983, is for a declaration that the Commission decision of 14 July 1983 is void or alternatively a reduction of the fine imposed or, in the further alter- The Commission contends that the action native, a long extension of the period is inadmissible because it was brought within which it must be paid. after the prescribed period had expired and that force majeure cannot be relied upon in support of its admissibility. It observes that, according to Article 39 of the Statute of the Court of Justice of the ECSC, the proceedings provided for in I I — Written procedure and con- Articles 36 and 37 of the ECSC Treaty clusions of the parties must be instituted within the time-limit of one month of the date of notification. To that it added the extension, on By a separate document lodged on 7 account of distance, of 10 days for October 1983 the Commission applied to parties habitually resident in Italy. Since the Court under Article 91 (1) of the the applicant was notified of the Rules of Procedure for a decision on an contested decision on 21 July 1983, the objection of inadmissibility. At the period prescribed for commencing request of the President of the Court of proceedings, including the extension on 7 October 1983, the applicant submitted account of distance, therefore expired on in writing its submissions and con- 1 September 1983, by which date the clusions regarding the Commission's application ought to have been lodged at application. the Court Registry. Consequently, the

As regards the concept of force majeure, it should, as an exception to the general rule, be interpreted narrowly, as it has On the second point, the applicant been by the Court in many cases, inter submits that the conditions for force alia in Valsabbia and Others v majeure are fulfilled. It was in fact Commission [1980] ECR 907. Moreover, impossible for it to take action to defend force majeure should be defined by itself, because the Commission decision reference to the legal context in which it was notified to it during the summer is to apply. In this case, it meant that holiday, a period during which there is a between 22 July and 30 August it was complete cessation of work at the Italian almost completely impossible to find a Bar and in Italian undertakings. As a lawyer to institute proceedings before the matter of fact, under Italian Law No 742 Court. The applicant has not proved of 7 October 1969, the periods of time and, moreover, could not prove that it prescribed for the taking of procedural was impossible for it to find a lawyer. steps before the ordinary and ad- ministrative courts are suspended from 1 August to 15 September every year with the result that time starts to run again in The applicant makes two submissions in law from the end of the suspension support of the admissibility of its action: period. the first relates to the inapplicability of the time-limit of 30 days to actions brought under Article 36 of the ECSC Treaty; the second concerns the Although that law is a national law, it existence of force majeure in this case. created a situation in which the applicant was prevented from taking action. However, the essence of the problem was not that it was impossible to obtain a On the first point, the applicant submits lawyer but that it was impossible to that Article 36 of the ECSC Treaty does obtain a lawyer who satisfied certain not prescribe any fixed period for specific requirements, both formal (right bringing an action. The third paragraph of audience before the higher courts)

As regards the concept of force majeure, The applicant also refers to Italian legal the applicant argues that a distinction writers who also consider that the test must be drawn between questions of for the existence of force majeure is the substance (such as the performance of exercise of due diligence, care and fore- obligations), to which a "strict and thought. Articles 650, 663 and 668 of the formalistic" approach has been adopted, Italian Code of Civil Procedure and and questions of procedure (such as the Article 183 bis of the Italian Code of observance of time-limits), to which Criminal Procedure empower courts to principles of equity should be applied. consider the circumstances pleaded by That is especially necessary where the the parties with a view to relaxing time- barring of the action owing to the limits. The relevant circumstances cannot rigidity of the time-limit effectively be evaluated on the basis of formalistic excludes all possibility of taking and criteria; they must be evaluated by defending proceedings and results in comparing certain objective factors with the breach of constitutional principles the actions of the person under the or, more precisely, the breach of obligation. The situation which has fundamental rights of the individual. existed for some years in Italy during the holiday period constitutes proof of force majeure; it is one which cannot be overcome by exercising normal diligence or by making every reasonable effort. The applicant does not regard as relevant the judgments of the Court relied upon by the Commission. For its part, it refers to the Opinion which Mr Advocate General Gand delivered on 14 December 1966 in Joined Cases 25 and 26/65, IV — Oral p r o c e d u r e Società Industriale Metallurgica di Napoli and Another v High Authority, [1967] ECR 33, in which he defined unfore- seeable circumstances and force majeure as external events beyond the control of At the sitting on 5 April 1984 oral the person under the obligation, of a argument was presented and questions kind which that person could not foresee put by the Court were answered by F. and the consequences of which he could Masperi, Avvocato, for the applicant, not imagine. According to the decisions and by Oreste Montalto, acting as

Admissibility

4 The Commission has raised an objection of inadmissibility against the application under Article 91 (1) of the Rules of Procedure on the ground that the applicant did not observe the one-month period starting from notification of the contested decision which Article 39 of the Statute of the Court of Justice of the ECSC prescribes for bringing proceedings and which was extended by ten days in the present case in accordance with Article 81 of the Rules of Procedure of the Court and Article 1 of Annex II thereto. Since the applicant was notified of the contested decision on 21 July 1983, the period for bringing proceedings expired on 1 September 1983, whereas the application did not actually arrive at the Court until 19 September 1983. In the Commission's view, failure to observe the period prescribed for bringing proceedings bars the applicant's right of action.

VALSABBIA v COMMISSION

5 The applicant, on the other hand, submits that the application is wholly admissible as far as the time-limit is concerned. It contends first of all that Article 36 of the ECSC Treaty does not lay down any fixed period for bringing proceedings and that the reference in that provision to Article 33 concerns only the "conditions" laid down in the first paragraph of that article, that is to say the rules relating to actions and not the time-limit laid down in the third paragraph. In this case, the period for bringing proceedings is two months, which is the period fixed in the decision itself for payment of the fine and which is also laid down by the EEC Treaty.

first paragraph of Article 39 of the Statute of the Court of Justice of the ECSC that the appeal provided for in Article 36 of the ECSC Treaty must be lodged within the one-month period laid down in the last paragraph of Article 33 of that Treaty.

11 Consequently, the applicant's first argument must be rejected.

1 2 As regards the applicant's second argument, it must be pointed out that time- limits for instituting proceedings before the Court are governed exclusively by Community law and that, consequently, they are not subject to the national rules of the Member States regarding the time-limits for instituting proceedings before their own courts.

1 3 As the Commission has rightly pointed out, Article 80 (1) of the Rules of Procedure expressly provides that the period of time prescribed for the taking of any procedural step is to continue to run during vacations.

1 4 The Court considers that the strict application of Community rules on pro- cedural time-limits meets the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice. It is only if the party concerned proves the existence of unforeseeable circumstances or force majeure, as required by the third paragraph of Article 39 of the Statute on the Court of Justice of the ECSC, that its right of action is not prejudiced in consequence of the expiry of a time-limit.

15 However, the applicant claims that the circumstances of the present case fall squarely within the concept of force majeure; in its view, the Court's interpre- tation of that concept where procedural questions, rather than questions of substance, are concerned should be based on equitable considerations, since rigid time-limits would effectively exclude all possibility of obtaining a remedy and would thus result in a breach of the fundamental rights of the individual.

20 To support its case, the applicant has submitted statements by the President of the Italian Bar and by the President of the Brescia Bar Association and also a statement by its usual lawyer in ECSC cases.

21 The applicant's arguments cannot be accepted. The Court has consistently held that, apart from the special features of the specific areas in which it is used, the concept of force majeure essentially covers unusual circumstances which make it impossible for the relevant action to be carried out. Even though it does not presuppose absolute impossibility, it nevertheless requires abnormal difficulties, independent of the will of the person concerned and apparently inevitable, even if all due care is taken (see the judgment of 9. 2. 1984 in Case 284/82, Busseniv Commission, [1984] ECR 557).

JUDGMENT OF 12. 7. 1984 — CASE 209/83

22 Consequently, the concept of force majeure does not apply to a situation in which, objectively, a diligent and prudent person would have been able to take the necessary steps before the expiry of the period prescribed for instituting proceedings.

23 In that regard, it must be stated that the applicant did not show the necessary degree of diligence, since on receipt of the contested decision it still had ten days before the beginning of the summer holidays to make contact with its usual lawyer or to find a sufficiently well-qualified lawyer to act on its behalf.

24 It is clear from the applicant's own statements at the hearing that in the time between its receiving the contested decision and the beginning of the summer holidays it simply prepared a file and did not first seek a lawyer to act on its behalf. It was not until 8 August, at the earliest, that the applicant made contact with the lawyer who has actually taken charge of the case.

On those grounds,

T H E C O U R T (Second Chamber)

hereby:

1. Dismisses the application as inadmissible;

2. Orders the applicant to pay the costs.

Bahlmann Pescatore Due