Judgment_paragraph 12 · Gerry Plant and others v Commission of the European Communities (C-480/99 P)

12In reaching its finding that the two actions before it were inadmissible, the Court of First Instance reasoned as follows:29 It must first of all be observed that it is settled case-law that the period prescribed for bringing an action for annulment is mandatory and is not subject to the discretion of the parties or the Court, since it was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice (Joined Cases T-121/96 and T-151/96 Mutual Aid Administration Services v Commission [1997] ECR II-1355, paragraph 38).Case T-162/9830 It is common ground that the Decision was duly notified to the applicant and that the applicant did not bring its action until after the expiry of the period prescribed for doing so.31 The excusable error relied on by the applicant in order to obtain an extension of a mandatory time-limit for bringing an action concerns only exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of the party concerned (Case C-195/91 P Bayer v Commission [1994] ECR I-5619, paragraph 26).32 It is clear from the combined provisions of the third paragraph of Article 33 and the second paragraph of Article 15 of the ECSC Treaty that the period prescribed for bringing an action for annulment begins to run from the time when the individual decision under challenge is notified to the undertaking or association of undertakings to which it is addressed.33 Since the Decision was duly notified to the applicant, it was for the applicant to contact its advisers in order to agree with them on the steps to be taken in response to the Decision and to exercise its right of action within the period prescribed for that purpose.34 Even if, as the applicant claims, its solicitors did not receive a copy of the Decision from the Commission, the risk of an oversight, or that a letter sent by ordinary post might be lost, should have prompted the applicant to give them appropriate instructions without delay for the defence of its interests.35 In relying entirely on the initiative of its solicitors, the applicant therefore did not conduct itself in the manner of a reasonably diligent party.36 In those circumstances, the fact that the Decision bears the indorsement “cc: T. Llewellyn Jones” cannot constitute an exceptional circumstance such as to render the applicant's error excusable.37 It follows that the applicant's arguments must be rejected as unfounded and the action in Case T-162/98 dismissed as inadmissible.Case T-148/98...40 Should it be the case that the one-month period for bringing an action laid down by the third paragraph of Article 33 of the ECSC Treaty, plus the ten-day extension of time on account of distance, must be calculated from 10 August 1998, the date on which one of the applicants is said to have received a copy of the Decision from a third party, that period would have expired on 20 September 1998. As that date fell on a Sunday, the expiry of the period would, under the first subparagraph of Article 101(2) of the Rules of Procedure, have been postponed until midnight on Monday 21 September 1998. The action, which was brought by application lodged on 21 September 1998, would therefore have been brought on the last day of the prescribed period.41 However, a party may only put forward, in support of its claims, facts which are sufficiently specific and detailed for the Court to regard them, at the very least, as credible and to enable the opposing party to contest them in an effective manner and, if appropriate, to submit evidence in rebuttal. That requirement as to the facts to be adduced, which relates to matters known only to the applicants, ensures that the Court does not come to rule on circumstances which are purely theoretical or are contrived solely for the purposes of the action.42 The Court first of all requested the applicants to identify the third party through whom one of them allegedly received a copy of the Decision; secondly, to identify the applicant in question; and thirdly, and finally, to describe the exact circumstances in which it came to be received, and exactly how the Decision became known to the other applicants.43 The applicants gave the following replies to those questions:1. “The Applicant Mr Mostyn Jones he (sic) cannot recall who the third party was, he thinks he obtained it from one of the persons who Sarah Llewellyn Jones represents. ”2. “Mr Mostyn Jones.”3. “The Applicant Mr Jones cannot recall the exact circumstances. The Other Applicants became aware of it by Mr Jones informing some of them of the decision and the Applicants communicating directly with one another.”44 Given that the Commission notified the Decision only to SWSMA and that the Decision was not even sent to SWSMA's solicitors, who did not learn of it until 8 September 1998, it seems unlikely that, as has been asserted, one of the applicants received a copy of the Decision on 10 August 1998 from an unidentified third party.45 The answers given to the questions put by the Court make that lack of credibility only more apparent. What emerges from the 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 the period prescribed for bringing the action, he has forgotten both the identity of the person from whom, and the circumstances in which, he received it.46 The only piece of information provided by Mr Mostyn Jones is that he thinks he obtained the document from one of the persons represented by Sarah Llewellyn 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 the attention of SWSMA's solicitors until 8 September 1998.47 It follows that the applicants have been unable to make out a sufficiently detailed and convincing case for their claim that the starting point of the period prescribed for initiating proceedings was such as to enable the Court to hold that their action was brought in time.48 It necessarily follows that the action in Case T-148/98 must be held to have been brought out of time.49 That action must therefore be dismissed as inadmissible and there is no need to consider the other pleas raised by the Commission in support of its objection of inadmissibility or to rule on the application for legal aid or the applications for leave to intervene.’