JUDGMENT OF 30. 5. 1984 — CASE 224/83 FERRIERA VITTORIA / COMMISSION

In Case 224/83

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

JUDGMENT

Facts and Issues

The facts of the case, the course of the procedure, and the formal conclusions, submissions and arguments of the parties may be summarized as follows:

I — Summary of the facts

1. By the contested decision, which was notified to the applicant company, Ferriera Vittoria Srl, by registered letter acknowledged to have been received on 21 July 1983, the Commission, acting pursuant to Article 64 of the ECSC Treaty, imposed a fine of 70200090 Italian lire on that company on the ground that the discounts which it granted infringed Article 60 of the ECSC Treaty.

2. In the course of an inspection carried out at the company's premises between 3 and 10 November 1981 the ECSC's inspectors found that the list prices published by the company had not been adhered to. The inspectors established that the breaches related to sales of concrete-reinforcing bars of 6 to 8 mm in the period from July to September 1981. By registered letter 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 question. It requested Ferriera Vittoria to submit its comments in accordance with Article 36 of the ECSC Treaty.

3. Ferriera Vittoria submitted its comments 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 hot-rolling of rails and that therefore, since it was of poorer quality, its price had to be lower than that of top-quality products.

4. On 14 January 1983 the two parties argued their case at a meeting held in Brussels, the record of which was notified to the applicant by registered letter dated 16 February 1983.

II — Written procedure

1. On 6 October 1983 Ferriera Vittoria lodged an application at the Court seeking a declaration that the Commission's decision of 14 July 1983 imposing the fine upon it was void.

2. By an application received at the Court on 26 October 1983 the Commission raised a procedural issue objecting that the company's application was inadmissible on the ground that it was out of time and requesting the Court to deal with its objection separately from the substance of the case.

3. The applicant's observations on the objection of inadmissibility were received at the Court on 28 November 1983.

4. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided under Article 91 of its Rules of Procedure to open the oral procedure solely with regard to the question of admissibility without examining the substance of the case.

5. By order of 29 February 1984 the Court assigned the case to the Third Chamber.

III — Conclusions of the parties

1. The applicant claims that the Court should : Declare void Decision No C(83) 1022/5 of the Commission of the European Communities of 14 July 1983; In the alternative, reduce the fine to a purely nominal amount and, in the further alternative, grant a long extension, free of interest, for the payment of the fine.

2. The Commission contends that the Court should declare the application inadmissible and order the applicant to pay the costs.

3. In its observations on the Commission's objection of inadmissibility, the applicant claims that the Court should declare that the application has been duly lodged and examine the substance of the case.

IV — Submissions and arguments of the parties

1. In its application Ferriera Vittoria submits that, as far as the admissibility of its application is concerned, the contested decision did not come to its notice until 30 August 1983. As evidence, it annexes to its application a sworn statement of its sole director, Vincenzo Bottazzi, authenticated by the police sergeant in charge at the Presceglie police station, which, according to the applicant, makes it clear that, because the factory and its offices had been closed since 6 June 1983 on account of the steel crisis and its sole director was absent, he was unable to become acquainted with the contents of the Commission's decision of 14 July 1983 until the end of August. Consequently, the period for bringing the action expired on 10 October 1983.

2. The Commission maintains that the action is inadmissible because it was commenced after the expiry of the one-month period laid down by Article 39 of the Statute of the Court of the ECSC, extended in the present case by ten days on account of distance, pursuant to Article 81 of the Rules of Procedure of the Court and Article 1 of Annex II thereto. That period therefore expired on 1 September 1983, since it began to run on 21 July 1983, the date on which the contested decision was notified to the applicant by registered letter. Since the application was lodged at the Court Registry on 6 October 1983, it is therefore out of time, which, according to the decisions of the Court, means that the right of action is time-barred. As regards the statement made by the Companys' sole director, and authenticated by the sergeant in charge of the local police station, the Commission first points out that, in referring to the accounting documents in the possession of the company, the police sergeant no doubt merely wished to certify that they were in conformity with Mr Bottazzi's statements. The Commission does not see how it would be possible to prove that Mr Bottazzi did not open the Commission's letter until 26 August 1983. Even if that were the case, it would have no effect on the inadmissibility of the application. The Commission's letter was a registered letter with an acknowledgement of receipt and was thus both appropriate and sufficient to set time running, as the Court indicated in its judgment in Joined Cases 32 and 33/58, SNUPAT v High Authority, [1959] ECR 127. In any case, the acknowledgement of receipt was duly signed at the address of the company by a person authorized to do so. If nobody had been there the registered letter would have been returned to the Commission which would then have sent a second notification. The Commission further notes that it seems odd that the sole director of a company should be absent on holiday for 37 consecutive days without even instructing anyone to forward urgent mail to him or pass on the most urgent messages by telephone. At all events, such conduct demonstrates an extreme lack of concern and the Commission cannot be held responsible for it.

3. In its observations the applicant 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 June, that its staff were receiving benefits from the Cassa Integrazione Straordinaria and that its sole director had been absent from 19 July to 26 August 1983, cannot be denied except by a plea of forgery, since the statements were made by a public official. The documents submitted by the applicant are therefore conclusive evidence, whereas the Commission's objections are based on nothing more than mere presumptions from which it is concluded that, as soon as a registered letter arrives at the address to which it is sent, the addressee is aware of its contents. However, that version of events is not corroborated by any single fact except that the Commission received through the post the acknowledgement of receipt 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 responsibility in the undertaking as soon as it arrived in the addressee's letterbox. Furthermore, it is hardly necessary to point out that the Commission is suggesting that all that the police sergeant at Presceglie did was certify that Mr Bottazzi's statements were consistent with the documents of the undertaking. That suggestion is wrong because the police sergeant certified that “the statements (of Mr Bottazzi) correspond to the truth”. It is public knowledge that it is the specific duty of 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 like Odolo. In view of the particular situation which the undertaking was in, it cannot be said that its sole director acted with a lack of concern which is the charge made against him by the Commission. Moreover, 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. Finally, the applicant advances a supplementary argument in support of the admissibility of its application, namely that there would have been no reason for not bringing an application within the prescribed period if the sole director had been aware in July of the contents of the Commission's decision.

V — Oral procedure

At the sitting on 29 March 1984, the Commission of the European Communities, represented by O. Montako, acting as Agent, presented oral argument.

The Advocate General delivered his opinion at the same sitting on 29 March 1984.

Decision

1. By application lodged at the Court Registry on 6 October 1983, Ferriera Vittoria Sri, whose registered office is in Odolo, Italy, brought an action under Article 36 of the ECSC Treaty, requesting the Court to declare void Commission Decision No C(83) 1022/5 of 14 July 1983 whereby it was fined LIT 70200900 for infringing Article 60 of the ECSC Treaty by granting discounts on the prices fixed by the Commission for concrete-reinforcing bars. In the alternative, the applicant requests the Court to reduce the fine to a purely nominal amount, and, in the further alternative, to grant a long extension, free of interest, for the payment of the fine.

2. The contested decision was addressed to the applicant by registered letter dated 19 July 1983 and the acknowledgement of its receipt was signed on 21 July 1983 at the applicant's registered office in Odolo.

3. The Commission, by a separate document raising a procedural issue, has objected that the application is inadmissible because it is out of time. The applicant did not in fact lodge its application until 6 October 1983, whereas the contested decision was notified to it on 21 July 1983. According to Article 39 of the Statute of the Court of Justice of the ECSC, read together with Article 33 of the ECSC Treaty, the action ought to have been brought within one month of the latter date, prolonged by a period of ten days on account of distance in accordance with Article 81 of the Rules of Procedure of the Court and Article 1 of Annex II thereto. According to the Commission, the period for bringing this action therefore expired on 1 September 1983.

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, 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.

8. According to the third paragraph of Article 33 of the ECSC Treaty, the period for instituting proceedings begins to run from the date on which the contested measure was notified. According to Article 81 (1) of the Rules of Procedure of the Court, that period begins to run “from the day following the receipt by the person concerned of notification of the measure ...”.

9. In this case, the measure in question was notified by registered letter with an acknowledgement of receipt signed on 21 July 1983. That is a method which enables the date from which time begins to run to be determined with certainty, as the Court has already stated in its judgment in Joined Cases 32 and 33/58 (SNUPAT v High Authority, [1959] ECR 127 at p. 136).

10. However, the applicant maintains that the period could begin to run only from the day on which its sole director acquired actual knowledge of the contents of the measure notified, which was not possible until after 26 August 1983.

11. That argument must be rejected as unfounded. It follows from the provisions cited above that the actual knowledge of the sole director of the applicant company of the contents of the notified measure cannot affect the date on which the period for commencing proceedings begins to run.

12. However, it is necessary to consider whether the facts relied upon by the applicant constitute unforeseeable circumstances or force majeure, within the meaning of the third paragraph of Article 39 of the Statute of the Court of Justice of the ECSC, which prevented it from lodging its application in time.

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 unforeseeable 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.

On those grounds, THE COURT (Third Chamber) hereby:

1 Dismisses the application as inadmissible;

2 Orders the applicant to pay the costs.