CFI, 5th chamber, extended composition, February 24, 2000, No T-104/99

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber, Extended Composition),

Background and procedure

1 This action seeks the annulment of Council Regulation (EC) No 194/1999 of 25 January 1999 imposing definitive anti-dumping duties on imports of hardboard originating in Bulgaria, Estonia, Latvia, Lithuania, Poland and Russia and definitively collecting the provisional duties imposed (OJ 1999 L 22, p. 16).

2 The applicants are producers and exporters of hardboard, which is defined by Regulation No 194/1999 as fibreboard of wood or other ligneous materials with a certain density.

3 On 7 November 1997, following a complaint by several Community producers of hardboard, the Commission published a notice of initiation of an anti-dumping procedure concerning imports of hardboard originating in Brazil, Bulgaria, Estonia, Latvia, Lithuania, Poland and Russia (OJ 1997 C 336, p. 2). On 14 January 1998, following the publication of that notice, the applicants submitted observations to the Commission.

4 The Commission sent a questionnaire to the applicants and carried out checks at their premises.

5 On 5 August 1998 the Commission adopted Regulation (EC) No 1742/98 imposing a provisional anti-dumping duty on imports of hardboard originating in Brazil, Bulgaria, Estonia, Latvia, Lithuania, Poland and Russia and accepting undertakings offered from certain exporters in connection with those exports (OJ 1998 L 218, p. 16). On 14 September 1998, following the publication of that regulation, the applicants submitted observations to the Commission. By fax messages of 6, 10 and 20 November 1998, they sent it further information.

6 On 23 November 1998 the Commission communicated to the applicants the main facts and considerations on the strength of which it intended to propose to the Council that a definitive anti-dumping duty should be imposed. On 7 December 1998, the applicants submitted their comments on that communication.

7 On 25 January 1999 the Council adopted Regulation No 194/1999, which was published in the Official Journal of the European Communities on 29 January 1999.

8 By application lodged on 28 April 1999, the applicants brought the present action.

9 On 20 September 1999 the parties were invited by the Registry of the Court of First Instance to submit observations on the admissibility of the action, in the light of Articles 101 and 102 of the Rules of Procedure, in view of the fact that it had been brought on 28 April 1999.

10 By letter lodged at the Registry on 11 October 1999, the Council requested the Court to declare the action inadmissible and order the applicants to pay the costs. According to the Council, the action was brought out of time, since the date on which the time-limit expired was 27 April 1999.

11 By letter lodged at the Registry the same day, the applicants requested the Court to declare the action admissible and give judgment on the substance of the case. They do not deny that the action is out of time, but plead the existence of two factors constituting unforeseeable circumstances or force majeure within the meaning of the second paragraph of Article 42 of the EC Statute of the Court of Justice.

12 By a document lodged at the Registry on 29 October 1999, the Commission applied for leave to intervene in support of the forms of order sought by the Council.

Forms of order sought

13 The applicants claim that the Court should:

- annul Regulation No 194/1999;

- order the Council to pay the costs.

14 In their observations of 11 October 1999, the applicants further claim that the Court should:

- declare the action admissible;

- give judgment on the substance of the case.

15 The Council contends that the Court should:

- dismiss the action;

- order the applicants to pay the costs.

16 In its observations of 11 October 1999, the Council further contends that the Court should declare the action clearly inadmissible.

Law

17 It is settled case-law that time-limits for bringing proceedings are at the discretion of neither the Court nor the parties and are a matter of public policy (Case T-514/93 Cobrecaf and Others v Commission [1995] ECR II-621, paragraph 40; Case T-119/95 Hauer v Council and Commission [1998] ECR II-2713, paragraph 22).

18 Under Article 113 of the Rules of Procedure, the Court of First Instance may at any time of its own motion consider whether there exists any absolute bar to proceeding with the case, and shall give its decision on the matter in accordance with Article 114(3) and (4) of those Rules. It is therefore for the Court to examine of its own motion whether the time-limit for bringing the action has been complied with (Joined Cases T-121/96 and T-151/96 MAAS v Commission [1997] ECR II-1355, paragraph 39).

19 Under Article 114(3), the remainder of the proceedings is to be oral unless the Court of First Instance decides otherwise. In this case, the Court considers that it has sufficient information from the documents before it, and decides that there is no need to hear the parties present oral argument.

20 It is undisputed between the parties and is shown by the information given by the Office for Official Publications of the European Communities that Regulation No 194/1999 was published in the Official Journal of the European Communities on 29 January 1999. It is also established that that number of the Official Journal was issued in all the official languages of the European Union on that date.

21 In accordance with the fifth paragraph of Article 173 of the EC Treaty (now, after amendment, Article 230 EC), the period prescribed for bringing an action for annulment is two months. Where an action is brought against a measure published in the Official Journal of the European Communities, Article 102(1) of the Rules of Procedure provides that that period is to run from the end of the 14th day after the date on which the measure was published. The period must be extended on account of distance, pursuant to Article 102(2).

22 In this case, the action concerns a measure published on 29 January 1999. Under Article 102(1) of the Rules of Procedure, the time allowed for bringing an action for its annulment was to be counted from the end of 12 February 1999. Extended by two weeks on account of distance, pursuant to Article 102(2) of the Rules of Procedure, for applicants having their principal office in Poland and Latvia, it therefore expired at midnight on 26 April 1999.

23 As the application was lodged on 28 April 1999, the action has been brought out of time.

24 Under the second paragraph of Article 42 of the Statute of the Court of Justice, which applies to the Court of First Instance pursuant to the first paragraph of Article 46 of that Statute, no right shall be prejudiced in consequence of the expiry of a time-limit if the party concerned proves the existence of unforeseeable circumstances or of force majeure. In this case, the applicants rely on two circumstances which, they maintain, constitute unforeseeable circumstances or force majeure.

25 First, they claim that one of their lawyers telephoned the English-language section of the Registry of the Court of First Instance, primarily to obtain confirmation that the extension on account of distance for Poland and Latvia was two weeks. That lawyer, they say, told a Registry official, whose name is unknown, that, according to his calculations, the time-limit for submitting the application would expire on 28 April 1999. According to the applicants, he asked the official whether he agreed with that calculation and, after giving some thought to the matter, the official replied that he assumed that it was correct. However, the applicants state that the official expressly told the lawyer that he could not provide a legally binding statement on this and that it would be up to the applicants to make the final calculations.

26 The Court points out that it does not fall within the tasks and powers of Registry officials to give a ruling on the calculation of the time-limit for bringing an action. In any event, without there being any need to rule as to whether, in certain circumstances, the taking into consideration by an applicant of erroneous information from a Registry official might constitute an unforeseeable circumstance or force majeure, it should be pointed out that, in this case, the calculation of the time-limit for submitting the application was made by the applicants' lawyer. The information said to be given in that respect by the official to whom the question was put was given, as the applicants themselves acknowledge, without responsibility and with an express reminder that the calculation was a matter for the applicants. In those circumstances, there can be no question of unforeseeable circumstances or force majeure.

27 Secondly, the applicants plead the personal situation of one of their lawyers a few days before the application was submitted.

28 In that regard, it is sufficient to observe that the applicants are represented in this dispute by two lawyers. Even if one of them may have been prevented by his personal situation from lodging the application within the prescribed time-limit, the applicants offer no explanation as to why their other lawyer was unable to do so.

29 In those circumstances, the action must be dismissed as inadmissible.

30 For that reason, there is no need to rule on the Commission's application for leave to intervene.

Costs

31 Under 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. The Council has asked for costs to be awarded against the applicants, and the latter have been unsuccessful. However, given that the question concerning the possibility of the action being out of time was raised by the Court of its own motion, the Council's defence was no longer relevant. In those circumstances, the Court considers it fair and reasonable that the Council should bear the costs relating to the preparation and submission of its defence.

32 The applicants must therefore be ordered to bear their own costs and, in addition, to pay the costs incurred by the Council, except for those relating to the preparation and submission of its defence.

On those grounds,

THE COURT OF FIRST INSTANCE (Fifth Chamber, Extended Composition)

hereby orders:

1. The action is dismissed as inadmissible.

2. There is no need to adjudicate on the Commission's application for leave to intervene.

3. The applicants are ordered to bear their own costs and, jointly and severally, to pay the costs of the Council save for those relating to the preparation and submission of its defence.