22 October 2010 (*1)

(Appeal – Directive 2000/35/EC – Action for partial annulment – Application brought out of time – Appeal clearly unfounded)

In Case C‑266/10 P,

APPEAL under Article 56 of the Statute of the Court of Justice, brought on 27 May 2010,

Sistemul electronic de arhivare, criptare şi indexare digitalizată Srl (Seacid), established in Brașov (Romania), represented by N.O. Curelea, avocat,

appellant,

the other parties to the proceedings being:

European Parliament,

Council of the European Union,

defendants at first instance,

THE COURT (Seventh Chamber),

composed of D. Šváby, President of the Chamber, R. Silva de Lapuerta and E. Juhász (Rapporteur), Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

after hearing the Advocate General,

makes the following

1By its appeal, Sistemul electronic de arhivare, criptare şi indexare digitalizată Srl (Seacid) seeks to have set aside the order of the General Court of the European Union of 16 March 2010 in Case T-530/09 Seacid v Parliament and Council (‘the order under appeal’), by which the General Court dismissed Seacid’s application for annulment of the last sentence of Article 5(1) of Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions (OJ 2000 L 200, p. 35).

Procedure before the General Court and the order under appeal

2The appellant, a limited liability company, incorporated under Romanian law, whose headquarters are located in Brașov (Romania), is specialised in software production, IT hardware distribution, network and database maintenance and management.

3Following a delay in payment for performing a contract for IT services, Seacid, by application lodged at the Registry of the Court of First Instance (now the General Court) on 14 November 2009, brought an application for annulment of the last sentence of Article 5(1) of Directive 2000/35.

4 Article 5(1) of Directive 2000/35 states:

‘Member States shall ensure that an enforceable title can be obtained, irrespective of the amount of the debt, normally within 90 calendar days of the lodging of the creditor's action or application at the court or other competent authority, provided that the debt or aspects of the procedure are not disputed. This duty shall be carried out by Member States in conformity with their respective national legislation, regulations and administrative provisions.’

45 By the order under appeal, made pursuant to Article 111 of its Rules of Procedure, the General Court, without taking further steps in the proceedings, dismissed the action as being manifestly inadmissible, on the ground that it had not been brought within the time-limits laid down for that purpose.

The appeal

56 In its appeal, Seacid claims that the order under appeal should be set aside in its entirety and that the form of order sought by it at first instance should be granted in full.

67 Under Article 119 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, by reasoned order dismiss the appeal without opening the oral procedure.

78 In support of its appeal, the appellant relies upon two grounds, alleging a procedural irregularity before the General Court and an error of law respectively. Each ground of appeal is divided into two parts.

The first ground of appeal

89 In the first part of the first ground of appeal, Seacid states that the General Court did not comply with the rules set out in Article 111 of the Rules of Procedure of the General Court in that it made the order under appeal without having first heard the Advocate General.

910 The second part of the first ground relates to another procedural error by the General Court, and alleges that the General Court did not comply with the provisions of Article 24(6) of the Rules of Procedure of the General Court, which provides that notice is to be given in the Official Journal of the European Union of the date of registration of an application initiating proceedings, the names and addresses of the parties, the subject-matter of the proceedings, the form of order sought by the applicant and a summary of the pleas in law and of the main supporting arguments. As far as Seacid is aware, no notice has been published, which has prevented the appellant’s case being heard in public, in breach of Article 47 of the Charter of Fundamental Rights of the European Union.

1011 In response to the first part of the first ground of appeal, regarding the General Court’s obligation to hear the Advocate General before giving a decision on an action, the Court finds that that obligation must be understood in the light of Articles 2(2), 18 and 19 of the Rules of Procedure of the General Court, from which it is apparent, first, that the designation of a Judge of the General Court as Advocate General is optional where the General Court sits as a Chamber and, second, that references to the Advocate General in those Rules of Procedure are to apply only where a Judge has in fact been designated as Advocate General.

1112 In the present case, the General Court sat as a Chamber without designating a Judge to perform the function of Advocate General.

1213 Accordingly, the obligation to hear the Advocate General laid down in Article 111 of the Rules of Procedure of the General Court was not applicable (see, in particular, the order of 25 June 2009 in Case C‑580/08 P Srinivasan v European Ombudsman, paragraphs 35 to 37).

1314 Consequently, the appellant’s argument concerning breach of Article 47 of the Charter of Fundamental Rights of the European Union is irrelevant.

1415 It follows from the foregoing that the first part of the first ground must be dismissed as clearly unfounded.

1516 As regards the second part of the first ground of appeal, it should be recalled that Article 111 of the Rules of Procedure of the General Court allows that court, where it is clear that it has no jurisdiction to take cognisance of an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, by reasoned order, to give a decision on the action without taking further steps in the proceedings.

1617 The expression ‘without taking further steps in the proceedings’ in that provision allows the General Court, where the conditions of that provision are fulfilled, to give a decision on an action without previously publishing a notice in the Official Journal of the European Union (see the order in Srinivasan v European Ombudsman, paragraphs 33 and 34).

1718 Accordingly, the second part of the first ground of appeal must be dismissed as clearly unfounded.

1819 Consequently, the first ground of appeal must be rejected as clearly unfounded.

The second ground of appeal

1920 In the first part of the second ground of appeal, alleging an error of law, the appellant criticises the General Court for having dismissed its application as inadmissible, on the ground that it should have been brought before 1 November 2000, that is two months after publication of Directive 2000/35 in the Official Journal of the European Union on 8 August 2000. Seacid points out that its company was formed only in 2007 and that the Republic of Romania became a member of the European Union only on 1 January 2007. On that basis, that Member State could not as a matter of fact have initiated proceedings against that directive.

2021 As a preliminary point, it must be observed that the General Court correctly stated that it is entitled to examine of its own motion compliance with the time-limit for bringing an action, as it is a matter of public policy (see Case 79/70 Müllers v ESC [1971] ECR 689, paragraph 6, and the order of 9 July 2009 in Case C‑498/08 P Fornaci Laterizi Danesi v Commission, paragraph 19).

2122 Under the fifth paragraph of Article 230 EC, the proceedings provided for in that article are to be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.

2223 In the present case, it is not disputed that Directive 2000/35 was published in the Official Journal of the European Union on 8 August 2000 and that the appellant brought an application for annulment of the last sentence of Article 5(1) of that directive on 14 November 2009.

2324 The General Court was correct in stating that the two-month period of time allowed for commencing proceedings, provided for in the fifth paragraph of Article 230 EC, started to run, in accordance with Article 102(1) of the Rules of Procedure of the General Court, from the end of the 14th day after publication of the directive at issue on 8 August 2000 and that it expired on 1 November 2000, in view of the extension on account of distance by 10 days and the extension of the period where it would otherwise end on a Sunday or official holiday.

2425 Given the fact that time-limits for bringing proceedings are intended to ensure legal certainty by preventing European Union measures which produce legal effects from being called in question indefinitely, the date of publication, if there is one, is the decisive criterion for determining the starting point of the period prescribed for initiating proceedings (see the order in Fornaci Laterizi Danesi v Commission, paragraph 22).

2526 Consequently, the appellant cannot rely upon the argument that it was unable to challenge the directive at issue because it was not legally formed or the Republic of Romania was not part of the European Union at the time when the period prescribed for bringing proceedings was still running.

2627 As the General Court correctly pointed out, the period prescribed for bringing proceedings, laid down in the fifth paragraph of Article 230 EC, applies to all persons irrespective of their situation on the date that the measure was published.

2728 Accordingly, the first part of the second ground of appeal must be dismissed as clearly unfounded.

2829 The second part of the second ground of appeal relates to ensuring effective judicial protection. In the appellant’s submission, the case-law of the Court, in particular Case 294/83 Les Verts v Parliament [1986] ECR 1339 and Case C‑263/02 P Commission v Jégo‑Quéré [2004] ECR I‑3425, Articles 17 and 47 of the Charter of Fundamental Rights of the European Union and Articles 6(1) and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, were infringed because the General Court held that Seacid had not brought its action within the prescribed time-limits.

2930 In so far as the appellant relies on the right to effective judicial protection, it must be pointed out that that right is in no way undermined by the strict application of European Union rules concerning procedural time-limits which, according to settled case-law, meets the requirement of legal certainty and the need to avoid all discrimination or arbitrary treatment in the administration of justice (Case 152/85 Misset v Council [1987] ECR 223, paragraph 11, and the order in Case C‑406/01 Germany v Parliament and Council [2002] ECR I‑4561, paragraph 20).

3031 The second part of the second ground of appeal must be dismissed as clearly unfounded and, consequently, the second ground of appeal must also be dismissed as clearly unfounded.

3132 It follows from all the foregoing considerations that, pursuant to Article 119 of the Rules of Procedure, the appeal must be dismissed as clearly unfounded.

Costs

33Under Article 69(1) of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 118 of those rules, a decision as to costs is to be given in the order which closes the proceedings.

34Since this order was made before the appeal was served on the defendants and, therefore, before they could incur any costs, it is sufficient to decide that the appellant will bear its own costs.

On those grounds, the Court (Seventh Chamber) hereby orders:

The appeal is dismissed.

Sistemul electronic de arhivare, criptare şi indexare digitalizată Srl (Seacid) shall bear its own costs.

[Signatures]

*

Language of the case: English.