C-480/99
ECLI:EU:C:2001:359
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OPINION OF MR RUIZ-JARABO — CASE C-480/99 P
OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 26 June 2001 1
Facts and procedure terms contrary to the relevant provisions of the ECSC Treaty.
4. By Decision No 15656 ('the Decision'), 1. As they are set out in the order of the contained in a letter dated 30 July 1998, Court of First Instance of 29 September the Commission decided not to act upon 1999, 2the relevant facts for the purposes the complaint. of this appeal may be summarised as follows:
5. The Decision was notified to the Associ- ation on 5 August 1998 by registered post accompanied by a form for acknowledge- ment of receipt.
2. The South Wales Small Mines Associ- ation ('the Association') is an unincorpor- ated association founded to represent the interests of small coal producers in South 6. By letter of 18 August 1998, confirmed Wales. on 26 August 1998, a number of the producers requested the Commission to notify them formally of the Decision but the Commission, by letter of 24 August 1998, refused to do so.
3. Some of those producers submitted to the Commission, in the Association's name, 7. After learning on 16 September 1998 a complaint dated 5 June 1990 concerning that the Association had not challenged the the application of discriminatory business Decision within the prescribed period, those producers brought an action under the second paragraph of Article 33 and 1 — Original language: Spanish. Article 35 of the ECSC Treaty, which was 2 — Joined Cases T-148/98 and T-162/98 J.G. Evans and Others and South Wales Small Mines Association v Commission lodged at the Registry of the Court of First [1999] ECR II-1837. Instance on 21 September 1998 (Case
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T-148/98). The applicants stated that a The contested order copy of the Decision was annexed to their application. The present case is concerned with that action.
12. The contested order declared that the application in Case T-162/98 was inad- 8. A further application was lodged at the missible on account of its being out of time. Court Registry on 6 October 1998, by The applicant in that case had submitted, which the Association brought on its own inter alia, that in his affidavit of 4 January behalf an action for annulment of the 1999, Mr Bernard John Llewellyn, in his Decision under the second paragraph of capacity as Secretary of the Association, Article 33, cited above (Case T-162/98). stated that he had taken no further action at all following receipt of the Commission's letter. 3
9. Relying on the provisions of Article 114(1) of the Rules of Procedure of the Court of First Instance, the Commission raised objections of inadmissibility in each of the cases. 13. The applicants — to whom the Decision was not notified — asserted that they did not become aware of its existence until 10 August 1998, the date on which, 'by chance', one of them received a copy of The applicants submitted their observa- the letter containing it from a third party. tions thereon and the Court of First The application in Case T-148/98 could be Instance considered that it had sufficient deemed to have been brought in time only information before it to decide, in accord- if that assertion was accepted. ance with Article 114(3) of those Rules, to dispense with the oral part of the pro- cedure.
14. For the purposes of checking the ver- 10. The Court of First Instance, pursuant acity of the applicants' assertions, the to Article 50 of its Rules of Procedure, also Court of First Instance asked them (i) to considered that it was appropriate to join identify that third party; (ii) to identify the the two cases for the purposes of the order applicant who had received the letter and which it made on 29 September 1999. (iii) to describe the exact circumstances in which the document was received and how the other applicants learned of the Decision.
1 1 . The appeal was brought on 20 December 1999. 3 — Paragraph 21 of the contested order.
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15. The applicants gave the following has been asserted, one of the applicants answers to the questions: received a copy of the Decision on 10 August 1998 from an unidentified third party.
To the first question: '[t]he Applicant Mr Mostyn Jones he (sic) cannot recall who the third party was, he thinks he obtained it The answers given to the questions put by from one of the persons who Sarah Llewel- the Court make that lack of credibility only lyn Jones [the Association's lawyer] repre- more apparent. What emerges from the sents.' 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 To the second question: 'Mr Mostyn the period prescribed for bringing the Jones'. action, he has forgotten both the identity of the person from whom, and the circum- stances in which, he received it.
To the third question: 'The Applicant Mr Jones cannot recall the exact circum- stances. The Other Applicants became The only piece of information provided by aware of it by Mr Jones informing some Mr Mostyn Jones is that he thinks he of them of the decision and the Applicants obtained the document from one of the communicating directly with one persons represented by Sarah Llewellyn another.' 4 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 16. The Court of First Instance assessed the the attention of SWSMA's solicitors until evidence before it as follows: 8 September 1998.
'Given that the Commission notified the Decision only to SWSMA and that the It follows that the applicants have been Decision was not even sent to SWSMA's unable to make out a sufficiently detailed solicitors, who did not learn of it until and convincing case for their claim that the 8 September 1998, it seems unlikely that, as starting point of the period prescribed for initiating proceedings was such as to enable the Court to hold that their action was 4 — Paragraph 43 of the contested order. brought in time.
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It necessarily follows that the action in 20. As a preliminary point, it should be Case T-148/98 must be held to have been borne in mind that, although the Court of brought out of time.' 5 First Instance's reasoning was based on factual matters, its finding of inadmissibil- ity is of a legal nature and, as such, may be challenged in proceedings on appeal. Therefore, the Commission's objection that the appeal is wholly inadmissible cannot be accepted. 17. The Court of First Instance held that the action was inadmissible without con- sidering the other grounds of inadmissibil- ity pleaded by the Commission.
The first ground of appeal: manifest error of law
The grounds of appeal 21. The appellants claim that the Court of First Instance, while appearing to have accepted implicitly that the applicants could consider themselves concerned by the Decision for the purposes of the second 18. The appellants' action is founded on paragraph of Article 33 CS, did not three grounds of appeal, based respectively expressly rule on that question. Had it on a manifest error of law, a breach of their done so, it would have been led to conclude rights of defence and a distortion or incor- that the Commission was required to notify rect assessment of the evidence. them of the Decision and, in the absence of such notification, should have calculated the period for bringing proceedings from the time when one of the parties concerned became aware of the measure. By failing to act in that way, the Court of First Instance committed a manifest error of law. 19. The Commission, for its part, main- tains that the appeal is wholly inadmissible, since the contested order was confined to declaring, on the basis of a purely factual assessment, that the action for annulment had been brought out of time. It contends, 22. Without there being any need to in the alternative, that each of the grounds inquire further into either the implications, of appeal advanced should be rejected. for procedural purposes, of the absence of a distinction in the ECSC Treaty between the person to whom a decision is addressed and 5 — Paragraphs 44 to 48 of the contested order. any third party concerned by it, or the
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consequences of the scope for bringing for bringing proceedings may be considered proceedings being wider under the second by the Court of its own motion and there- paragraph of Article 33 CS than under the fore may not be dispensed with by the fourth paragraph of Article 230 EC, this parties. The procedure followed by the ground of appeal seems to me to be clearly Commission is irrelevant. ineffective.
25. The first ground of appeal must, there- In fact, irrespective of whether the Court of fore, be rejected. First Instance declared that the Decision concerned the applicants, the fact remains that it assessed the issue of whether the proceedings were commenced in time as if the applicants were concerned, con- sidering — and then rejecting — the sub- mission that they learned of the measure only after its notification to the Associ- The second ground of appeal: breach of the ation. The applicants would not have rights of defence merited any more favourable treatment had the fact that they were concerned by the Decision been expressly recognised. 26. The appellants submit that the Court of First Instance based its assessment as to whether the action was out of time on evidence of which it became aware in the 23. In so far as the error of law complained context of the case brought by the Associ- of consists in the Court of First Instance's ation (Case T-162/98). They were not given failure to recognise the right of the current an opportunity either to consider that appellants to be notified of the Decision by evidence or to reply to it. Hence, the Court the Commission, the plea in law is new. of First Instance acted in breach of an Essentially, the appellants would no longer elementary principle of natural justice and be bringing a claim by virtue of being a rule inherent in the right to procedural concerned by the Decision but by virtue of fairness. being addressees thereof.
27. The Commission considers that this 24. Finally, the appellants add that the ground of appeal is inadmissible since it Commission, when it responded to their seeks a re-examination of the facts. In any claim, did not call in question that they had event, it points out that the Court of First learned of the Decision on 10 August 1998. Instance found the applicants' answers to That argument is clearly unfounded since the questions that it put to them to be issues relating to the calculation of periods 'laconic and evasive' and adds that the
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pleadings in the appeal give no indication Court of First Instance found that the of the observations that the appellants answers lacked credibility, stating that the might have made had they been given the applicants had not succeeded in making out opportunity to comment. a sufficiently detailed and convincing case in support of their claims, and held the action to be inadmissible.
28. It is clear that, when considering the evidence that presumably led it to rule that the action was out of time, the Court of First Instance did not observe the require- 31. As regards those answers, the Court of ments of the adversarial process. First Instance began by finding, first, that the assertion that one of the applicants received a copy of the Decision from an unidentified third party on 10 August 1998 appeared to be lacking in credibility, since the Commission notified the Decision only 29. It must be recalled that two separate to the Association and that the Decision actions were brought and that, at the was not even sent to the Association's solicitors, who did not learn of it until Commission's request, the Court of First 8 September 1998. Instance ordered the opening of a pro- cedure for the determination of both objec- tions of inadmissibility, in which the vari- ous applicants would have an opportunity to make observations. Since it was the order itself which resolved that the two cases should be joined and since the oral part of the procedure was dispensed with, The Court of First Instance had evidence as the Court considering that it had sufficient to those circumstances only as a result of information before it, the Association did the submissions made in the course of Case T-162/98. 6 not have the opportunity to consider the documents in the action brought by Gerry Plant and others. Nor were the latter able to have access to the case-file in the other action.
32. The Court of First Instance went on to state that the laconic and evasive nature of Mr Mostyn Jones' answers were in contrast to his exactitude when it came to recalling 30. However, in order to establish the the date on which he allegedly received a accuracy of the date on which the appli- copy of the Decision. That resulted in their cants claimed to have learned for the first credibility being further undermined. time of the Decision, the Court of First Instance asked them the questions set out above. Having completed its analysis, the 6 — See paragraph 22 of the contested order.
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33. Lastly, the Court of First Instance sarial process: second, the presumed impar- discounted Mr Mostyn Jones' explanation tiality of judicial bodies extends to meas- that the person from whom he received the ures such as a request for an internal report document was one of the clients of the or the adducing of specific evidence, thus Association's lawyer by looking at it in the reducing the need for the parties to be light of Mr Bernard John Llewellyn's heard. affidavit, which stated that he had not taken any further action following receipt of the notification and that the Associ- ation's lawyers had not learned of the Decision until 8 September 1998. 35. In my opinion, the requirements of an adversarial process only call for particular judicial attention when a failure to observe them results in the breach of a fundamental right, that is to say, when it causes a breach of the rights of defence.
Mr Bernard John Llewellyn's affidavit was adduced only in the proceedings in Case T-162/98. 36. However, the European Court of Human Rights has adopted the Anglo- Saxon notion of an adversarial process stating, in its judgment of 20 February 1996 in Vermeulen v Belgium,7 that it meant 'the opportunity for the parties in civil or criminal proceedings to have 34. By its very nature, the submission of knowledge of and comment on all evidence the parties' arguments and their evidence to adduced or observations filed, even by an an adversarial process does not involve independent member of the national legal requirements of a mandatory nature. It may service, with a view to influencing the be no more than a means of facilitating the court's decision'. That case-law has been administration of justice and dealing with approved on many occasions, 8without the the questions, both of fact and law, that the utter impartiality and independence of the court has to resolve. That is typical of the way Anglo-Saxon legal systems operate, in which adversarial proceedings demonstrate 7 —Eur. Court H.R., Vermeuelen v Belgium judgment of great resistance to anything deemed 'in- 20 February 1996, Reports of Judgments and Decisions 1996-I. See also the judgment of the same date in Lobo quisitorial', which might affect the out- Machado v Portugal. come of the proceedings and which is not 8 — See, inter alia, Eur. Court H.R., Bulut v Austria judgment of 22 February 1996, Reports of Judgments and Decisions instigated by the parties. In continental 1996-11; Niederöst-Huber v Switzerland judgment of legal systems the scope of adversarial pro- 18 February 1997, Reports of Judgments and Decisions 1997-I; Van Orshoven v Belgium judgment of 25 June 1997, ceedings is more limited. First, the maxim Reports of Judgments and Decisions 1997-III; J.J. v Nether- lands and K.D.B. v Netherlands judgments of 27 June 1998, iura novit curia prevails, which enables Reports of Judgments and Decisions 1998-II. See also the judgment of 7 June 2001 in Kress v France, in which a more questions relating purely to the application flexible approach to the principle is adopted, which admits of the law to be excluded from the adver- that other procedures also safeguard the right of reply.
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various judicial figures concerned (an the evidence and without, therefore, allow- impartiality and independence which per- ing them to reply to it. meates their acts) having made the least impression on that line of argument.
39. Of the three considerations which led It appears that what is sought is a uniform the Court of First Instance to reject the approach to the administration of justice applicants' submission concerning the date without any explanation, beyond the 'doc- on which they claimed to have learned trine of appearances',9 as to why that is about the Decision, at least two display the necessary. defect described. Since it is not for the Court of Justice to weigh up the relative probative value to be attributed to each of the various items of evidence, this being something which depends on an assessment of the facts, the second ground of appeal 37. The requirements of an adversarial must be upheld. process typically come into play in relation to evidence submitted by one party for scrutiny by a judicial body. Such evidence, which is by definition external to the court, cannot be presumed to be impartial and independent. If such evidence is taken into account, without the parties first being heard in connection therewith, it may be assumed that the rights of defence have not Third ground of appeal: distortion or been observed. incorrect assessment of the evidence
40. Under this heading the appellants con- 38. That is the case in the present action. fine themselves to listing various matters of The Court of First Instance based its fact, without even attempting to explain in assessment of the case on evidence adduced what respect the Court of First Instance by one party in one set of proceedings in distorted the evidence or in what respect its order to determine a question concerning assessment thereof was manifestly incor- another set of proceedings, without affor- rect. ding the parties to the second set of proceedings the opportunity to consider
9 — A theory developed by the European Court of Human Rights which consists in attaching decisive legal importance to the impression that a layman may have of the fairness of a hearing. It has rightly been severely criticised even by 41. Since it merely seeks a further examin- members of the Court itself. See, for example, the brilliant ation of matters of fact, the third ground of opinion of Judge Martens annexed to Borgers v Belgium, judgment of 30 October 1991, Series A No 214-B. appeal must be declared inadmissible.
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The further course of the proceedings Costs
42. My proposal to uphold the second ground of appeal will result in the con- tested order being set aside and thereby in a reassessment of the facts on which it was based. Since that task is under no circum- stances a matter for the Court of Justice, 43. Pursuant to the first paragraph of final judgment cannot be given in the Article 122 of the Rules of Procedure, it is action, which must be referred back to the not appropriate to make an order as to Court of First Instance for re-examination. costs.
Conclusion
44. For the foregoing reasons, I propose that the Court should set aside the order of the Court of First Instance of 29 September 1999 in Joined Cases T-148/98 and T-162/9 8, referring the cases back to that Court for further determination and reserving the costs.
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