C-152/85

Mr President, therefore, the period in question began to Members of the Court, run· on 19 February 1985, that is to say on the day following notification· of the contested measure, and expired on. 18 May. 1. When does the prescribed period for 18 plus 2 equals 20: therefore the bringing an action before the Court of application should have arrived at the Justice expire? And,, in· general terms, how is Registry by 20 May. the time allowed to an individual to bring proceedings calculated under Community law? The Advocate General — some might The· applicant disagrees completely, arguing say — wishes to send the other Members of that the dies ad quern must be taken into the Court back to their university lecture account, in its entirety. Reference must be rooms. However, the answers to those made to Regulation. No- 1182/71 of the questions are not to be taken for granted. Council of 3'· June 1971 determining the Let us consider why. rules applicable to periods, dates and time- limits (Official Journal, English Special Edition 1971 (II), p. 354):. 'A period On 18 February 1985 Rudolf Misset, a expressed in . . . months', states Article 3 (2) translator in the Council Language Direc- (c), 'shall start at the beginning of the first torate, learned that the Secretary-General of hour of the first day of the period, and shall the Council had, by a. measure adopted on end with the expiry of the last hour of that date, rejected a complaint made by him. whichever day in the last month . . . is Three months are allowed for an official to the same day of the. week,, o r falls on the bring an action under the Staff Regulations; same date,, as the. day from which the period since the date of notification does not runs'. Since by virtue of Article 3 (1) 'the count — Mr Misset must have thought — day during which [the] event occurs or [an] the period expired on 19 May 1985. The action takes, place shall not be considered as two days granted under Annex II to the falling within the period, in question', it is Rules of Procedure to persons residing in clear that for Mr Misset the period of three Belgium are to be added, which brings the months began to run on 19 February 1985 date to 21 May, which is the day on which (dies a quo) and expired on 19 May the Court in fact received the application inclusive (dies ad'quem).. submitted by the applicant.

quem; and it cannot but be inferred from months. The period shall begin as from the that fact that the rules of Regulation No date of publication or notification of the 1182/71 apply by analogy, thus ensuring measure. That form of words in itself that time-limits of all sorts are subject to contains two of the three items of infor- uniform rules under Community law. mation required for timely action: (a) the period of time allowed (one, two or three 2.

If the calculation criteria are disregarded for a moment, it is clear that this period runs Their answers are not a little surprising. The from 1 September 1986 (dies a quo) to 1 Commission told us that it attaches no October 1986 (dies ad quern). For lawyers, importance to the time-limit for complaints; however, a delimitation of that kind is not in other words, it would reply even after the enough: the lawyer must establish whether, expiry of the prescribed period. On the for the valid exercise of the right to bring an other hand, the Council and the Parliament action, either the first or the last days of that follow the Staff Regulations to the letter, in period, or both of them, are to be regarded compliance with the principles laid down by as included. In other words, it is necessary the Court in its judgment of 26 November to calculate the period of time which must 1981 in Case 195/80 Michel v Parliament separate the two acts, the measure to be [1981] ECR 2861. As regards the scope of challenged and the act of challenging it. the regulation, the views of the three institutions could not be more divergent. The Council says that it cannot be applied Here the Rules of Procedure of the Court directly or by analogy to the time-limits laid are of assistance. Article 81 (1) provides that down in the Treaties, the Staff Regulations 'the period of time allowed for commencing and the Rules of Procedure. The proceedings against a measure adopted by Commission takes the opposite view, an institution shall run from the day whereas the Parliament lets it be understood following the receipt by the person that in proceedings involving Community concerned of notification of the measure'. officials the provisions of the Staff Regu- Article 80 (1) lays down a similar rule lations take precedence in any event. In regarding procedural time-limits in general. short, a complete muddle. The two provisions do not — of course — fix the day on which the period

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September, of period starts to run but as the day which course, has 30 days. Article 33 of the ECSC fixes the timing of that period. Treaty specifies a period of one month for proceedings to be instituted. If what I have just said is true, the same result should be obtained irrespective of whether the period So much for the dies a quo. And the dies ad allowed for instituting proceedings is quern? The reply, it seems to me, is clear. If, calculated according to the number of days by virtue of the rule to which I have just or on the basis of one month. referred, it is presumed that the right to bring an action may be exercised only with effect from the day following the day marking the commencement of the Let us verify this proposition by calculating prescribed period, it is obvious that the time the period first as if it were defined as 30 remaining for the exercise of that right also days. The dies a quo is 1 September 1986 includes, in its entirety, the final day (dies ad and is not counted. 2 September is therefore quern computatur in termino). the first of the days available to the steel undertaking; continuing the calculation in this way by counting the days we arrive at 1 October 1986, that is to say the date coin- However, it is not strictly necessary to ciding with the 30th day of the period and adopt a specific rule to reflect that logical the last day which the undertaking can use. consequence; in fact only the national legis- latures mentioned in Part 5 of this Opinion deal with the matter specifically (by contrast, the Belgian, Spanish, Italian and Let us now make the calculation on the Portuguese Codes of Civil Procedure do not basis of one month. In this case, since it is

commencement. therefore, if 1 September is the dies a quo — and, once more, if that day is excluded from the calculation — the dies ad quern of the period allowed to the under- The method of calculation having been thus taking cannot be 1 October. This verifi- clarified, everything becomes simple. Before cation, it seems to me, leaves no room for I apply it to the hypothesis which I took as doubt. It follows that, in the reckoning of a starting point, it is appropriate to any period of time for Community

4. However, let us suppose — for argument's sake, as the English say — that the Rules of Procedure are in fact incomplete regarding determination of the This difference, it seems to me, is so great final day. In those circumstances, could the in scope that Mr Misset's argument is Court follow Mr Misset's suggestion that deprived of any foundation. Contrary to his the rules of Regulation No 1182/71 should contention (with which the Commission be applied by analogy? I think not. concurs), I consider that the criteria laid down in Regulation No 1182/71 are them- selves to be interpreted in the light of the rules set out in Part 3 of this Opinion and therefore give results no different from I should point out in the first place that that those at which I arrived there. Here, on the regulation is needed in order to remedy a other hand, verification is even easier notorious and inescapable problem: because those procedures also cover time- Community laws operate in the context of limits expressed in weeks, that is to say

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periods which comprise the same number of of Germany, Spain, Greece, Italy, days (7). To take a simple example, a week Luxembourg, the Netherlands, Portugal and beginning on Monday 1 September 1986 the United Kingdom, a prescribed period of ends on Monday the 8th, that is to say the three months allowed for an action to be seventh day following the dies a quo. brought against a measure notified on 18 February 1985 expires at midnight on 18 May 1985.

5. That having been said, the fact remains that the application by analogy proposed by Mr Misset is impossible: hence an (alleged) In the case of France, no problems arise in lacuna which can be supplied only by estab- civil proceedings. In fact, in confirmation of lishing whether there exists in that regard a a principle which applies in all Member general principle common to the laws of the States except Ireland, Article 641 (1) of the Member States. A survey of comparative new Code (1975) provides that 'lorsqu'un law, which is not too difficult, shows that, délai est exprimé en jours, celui de l'acte, de except in France and Ireland, the method of l'événement, de la décision ou de la notifi- calculating time-limits for bringing actions cation qui le fait courir ne compte pas'. As within the various national legal systems regards time-limits expressed in months, for coincides exactly with that contained in this which the exclusion of the dies a quo also Court's Rules of Procedure. These are the applies for the reasons considered in Part 3 criteria for time-limits expressed in months: of this Opinion, the legislature sought to (a) the dies a quo is the day on which the eliminate any interpretative doubt at the measure is notified or communicated; (b) outset by specifying the last day of the for the exercise of the right to challenge the period. Thus, Article 641 (2) provides that measure, that day is not taken into account; 'lorsqu'un délai est exprimé en mois . . . ce (c) the dies ad quern is included in the period délai expire le jour du dernier mois . . . qui and coincides with the day which, in the last porte le même quantième que le jour . . . qui month of the prescribed period, bears the fait courir le délai' (Paragraphs 187 and 188 same number as the dies a quo. In the result, of the German Civil Code and Article 243 in Belgium, Denmark, the Federal Republic of the Greek Civil Code and Article 145 (2)

The position is more complex in adminis- trative law. Here also, in fact, 'les délais de However, in the Community system the recours exprimés en mois se calculent de problem which prompted the French courts quantième en quantième, quel que soit le to extend the lifetime of the right to bring nombre de jours composant les mois an action does not exist. In this Court, compris dans le délai'; in particular, 'le délai 'outside the opening hours of the Registry ne commence à courir qu'à 0 heure le procedural documents may be validly lendemain du jour du fait générateur {dies a lodged with the janitor, who shall record quo) .. . [et] il expire à 24 heures le dies ad the date and time of such lodging' (second quem' (Odent, Contentieux Administratif, subparagraph of Article 1 (1) of the Paris, 1976-81, p. 1060 et seq.). Instructions to the Registrar adopted However — and this is the important pursuant to the Rules of Procedure). In point — 'comme les secrétariats des juri- short, both certainty of time-limits and dictions administratives ferment bien avant protection of the individual are fully safe- 24 heures, . . . les pourvois enregistrés guarded at the same time. seulement le lendemain du dies ad quem sont encore recevables', so as to avoid the risk that the provision might 'priver les justi- ciables de quelques heures du délai auquel I believe therefore that I can conclude by ils ont droit'. Thus, 'pour une décision stating that the Community system of calcu- notifiée le 16 février, le délai de lating time-limits does not contain lacunae recours . . . commence à courir le 17 février and in any event is based on principles no a 0 heure, [et] il expire le 16 avril à 24 different from those underlying all the heures; un recours introduit le 17 avril national laws. The period within which an aurait encore été recevable; introduit le 18 action must be brought starts on the day on avril, il est tardif (see Conseil d'État, 8 June which the measure being challenged is 1951, per Bordenave, Recueil, p. 798). notified or communicated to the addressee. The time allowed for bringing an action is always calculated as from the day following What can be said of such a system? Since the day on which the period commenced; the period of two months expires on the day consequently, the right is extinguished at corresponding to the dies a quo, which is midnight on the day which, in the last not taken into account, the principle month of the period, bears the same number remains intact. However, the practice runs as the dies a quo.