C-224/83

JUDGMENT OF THE COURT ( THIRD CHAMBER) 30 MAY 1984 '

Ferriera Vittoria Sri v Commission of the European Communities

(ECSC — Fine — Objection of inadmissibility)

Case 224/83

1. Community law — Principles — Force majeure — Concept

2. Procedure — Time-limit for instituting proceedings — Action barred— Case of'force majeure — Concept — Limits (Statute of the Court ofJustice of the ECSC, Art. 39, first and third paras),

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Oreste Montako , a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Manfred Beschel, Jean Monnet Building, Kirchberg, defendant,

APPLICATION for a declaration that individual Decision No C(83) 1022/5 of the Commission of 14 July 1983 imposing a fine on the applicant is void,

THE COURT (Third Chamber)

composed of: Y. Galmot, President of Chamber, U. Everling and C. Kakouris, Judges,

Advocate General: M. Darmon Registrar: D. Louterman, Administrator

gives, the following

2. In the course of an inspection jecting that the company's application carried out at the company's premises was inadmissible on the ground that it between 3 and 10 November 1981 the was out of time and requesting the Court ECSC's inspectors found that the list to deal with its objection separately from prices published by the company had the substance of the case. not been adhered to. The inspectors established that the breaches related to sales of concrete-reinforcing bars of 3. The applicant's observations on the 6 to 8 mm in the period from July to objection of inadmissibility were received September 1981. By registered letter at the Court on 28 November 1983. dated 17 May 1982, the Commission served formal notice on Ferriera Vittoria of the facts alleged against it, appending to its letter a table of the discounts in 4. Upon hearing the report of the question. It requested Ferriera Vittoria to Judge-Rapporteur and the views of the submit its comments in accordance with Advocate General, the Court decided Article 36 of the ECSC Treaty. under Article 91 of its Rules of Procedure to open the oral procedure solely with regard to the question of admissibility without examining the 3. Ferriera Vittoria submitted its com­ substance of the case. ments to the Commission by registered letter dated 1 June 1982. It pointed out that it was a small-sized company, that its finished product was made from the 5. By order of 29 February 1984 the hot-rolling of rails and that therefore, Court assigned the case to the Third since it was of poorer quality, its price Chamber. had to be lower than that of top-quality products.

IV — Submissions and arguments of the parties As regards the statement made by the Companys' sole director, and authen­ ticated by the sergeant in charge of the 1. In its application Ferriera Vittoria local police station, the Commission first submits that, as far as the admissibility of points out that, in referring to the its application is concerned, the con­ accounting documents in the possession tested decision did not come to its notice of the company, the police sergeant no until 30 August 1983. doubt merely wished to certify that they were in conformity with Mr Bottazzi's statements. The Commission does not As evidence, it annexes to its application see how it would be possible to prove a sworn statement of its sole director, that Mr Bottazzi did not open the Vincenzo Bottazzi, authenticated by the Commission's letter until 26 August police sergeant in charge at the 1983. Presceglie police station, which, ac­ cording to the applicant, makes it clear that, because the factory and its offices Even if that were the case, it would have had been closed since 6 June 1983 on no effect on the inadmissibility of account of the steel crisis and its sole the application. The Commission's letter director was absent, he was unable to was a registered letter with an become acquainted with the contents of acknowledgement of receipt and was the Commission's decision of 14 July thus both appropriate and sufficient to 1983 until the end of August. set time running, as the Court indicated in its judgment in Joined Cases 32 and 33/58, SNUPAT v High Authority, Consequently, the period for bringing [1959] ECR 127. the action expired on 10 October 1983. In any case, the acknowledgement of receipt was duly signed at the address of 2. The Commission maintains that the the company by a person authorized to action is inadmissible because it was do so. If nobody had been there the commenced after the expiry of the one- registered letter would have been month period laid down by Article 39 of returned to the Commission which the Statute of the Court of the ECSC, would then have sent a second extended in the present case by ten days notification. on account of distance, pursuant to Article 81 of the Rules of Procedure of the Court and Article 1 of Annex II The Commission further notes that it thereto. That period therefore expired on seems odd that the sole director of a 1 September 1983, since it began to run company should be absent on holiday for on 21 July 1983, the date on which the 37 consecutive days without even in-

structing anyone to forward urgent mail undertaking. That suggestion is wrong to him or pass on the most urgent because the police sergeant certified that messages by telephone. At all events, "the statements (of Mr Bottazzi) such conduct demonstrates an extreme correspond to the truth". It is public lack of concern and the Commission knowledge that it is the specific duty of cannot be held responsible for it. the local police to maintain public order and that the station sergeant is daily kept informed of the movements of individuals, especially in a small town 3. In its observations the applicant like Odolo. contends that the truth of the facts recited in the police sergeant's statement, namely that because of the steel crisis the undertaking had been closed from 6 In view of the particular situation which June, that its staff were receiving benefits the undertaking was in, it cannot be said from the Cassa Integrazione Straordinaria that its sole director acted with a lack of and that its sole director had been absent concern which is the charge made from 19 July to 26 August 1983, cannot against him by the Commission. be denied except by a plea of forgery, Moreover, there is no provision of law since the statements were made by a which creates a presumption that, once a public official. registered letter arrives in the addressee's letterbox, he is automatically aware of its contents. The documents submitted by the applicant are therefore conclusive evidence, whereas the Commission's objections are based on nothing more Finally, the applicant advances a sup­ than mere presumptions from which it is plementary argument in support of the concluded that, as soon as a registered admissibility of its application, namely letter arrives at the address to which it is that there would have been no reason for sent, the addressee is aware of its not bringing an application within the contents. prescribed period if the sole director had been aware in July of the contents of the Commission's decision. However, that version of events is not corroborated by any single fact except that the Commission received through the post the acknowledgement of receipt V — Oral procedure of the registered letter; that, however, certainly does not prove that the letter was read by Mr Bottazzi or by any other person occupying a position of At the sitting on 29 March 1984, the responsibility in the undertaking as soon Commission of the European Com­ as it arrived in the addressee's letterbox. munities, represented by O. Montako, acting as Agent, presented oral argument. Furthermore, it is hardly necessary to point out that the Commission is suggesting that all that the police sergeant at Presceglie did was certify The Advocate General delivered his that Mr Bottazzi's statements were opinion at the same sitting on 29 March consistent with the documents of the 1984.

4 The applicant, on the other hand, maintains that the application is admissible because it did not acquire actual knowledge of the Commission's decision until the end of August. In particular, it submits that the company and its offices had been closed down since 6 June on account of the steel crisis and that from that date its staff had received benefits from the Cassa Integrazione Straordinaria. Furthermore, the company's sole director had been absent from 19 July to 26 August 1983 and was therefore unable to take cognizance of the decision until he returned at the end of August. As proof of those assertions, it has produced a sworn statement by its sole director,

FERRIERA VITTORIA / COMMISSION

authenticated by a sergeant at the local police station vested with authority for that purpose, who has certified "that the statements [of the director] correspond to the truth".

5 The applicant further argues that there is no provision of law which creates a presumption that, once a registered letter arrives in the addressee's letterbox, he is automatically aware of its contents.

6 It must be borne in mind that under the third paragraph of Article 33 and Article 36 of the ECSC Treaty, read together with Article 39 of the Statute of the Court of Justice of the ECSC, the period for bringing an action to have a Commission decision based on Article 64 of the ECSC Treaty declared void is one month from the notification of that decision.

7 That period, which, as the Court has already held in its judgment in Case 284/82 (Bussent, [1984] ECR 557), must be strictly observed, cannot be extended save on grounds of distance as provided in the second paragraph of Article 39 of the Statute of the Court of Justice of the ECSC. In this case, the extension on account of distance which is granted to Italian nationals is 10 days, in accordance with Annex II to the Rules of Procedure of the Court.

13 As far as that point is concerned, it must be pointed out, leaving aside the special features of the specific areas in which it is used, that 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 (judgment in Case 284/82, Bussent, [1984] ECR 557).

14 In this case it is clear from the documents before the Court that the applicant undertaking was closed, that its staff were receiving benefits from the Cassa Integrazione Straordinaria and that its sole director was absent for personal reasons. Those circumstances did not excuse the sole director from taking the necessary administrative measures during his absence. Consequently, the delay in bringing the action cannot be regarded as attributable to unfore­ seeable circumstances or force majeure.

15 It follows that the application was lodged out of time and must be dismissed as inadmissible.

Costs

16 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. As the applicant has failed in its submissions, it must be ordered to pay the costs.

FERRIERA VITTORIA / COMMISSION

Delivered in open court in Luxembourg on 30 May 1984.

For the Registrar

D . Louterman Y. Galmot Administrator President of the Third Chamber

OPINION OF MR ADVOCATE GENERAL DARMON DELIVERED ON 29 MARCH 1984 1

Mr President, is crucial. Consequently, Article 60 (2) Members of the Court, (a) requires the undertakings concerned to publish their price lists and conditions of sale. Only the published prices may 1. The common market in coal and be charged and the Commission may steel prohibits discriminatory practices, impose fines if the rules of the Treaty are especially as regards prices (Article 4 (b) infringed (Article 64). and 60 (1) of the ECSC Treaty).

For ensuring that this prohibition is Acting pursuant to Article 47 of the observed the transparency of the market Treaty the Commission carried out