Losing no time in laying down Court deadlines

Date: 06/03/1997

By Ian S Forrester QC

CONSCIENTIOUS lawyers have nightmares about deadlines.

Filing a document in court after an action has become time-barred is probably the clearest example of professionally negligent behaviour. There is an additional ground for unease for European law specialists. Whereas the calculation of time limits in most national laws is straightforward in the sense that any doubtful rules have been judicially clarified, European decisions on deadlines have been rare, so surprises and uncertainties still arise.

Two kinds of deadline arise before the European Court of Justice and the Court of First Instance: those prescribed by the treaties, which are immutable and cannot be extended, and those set by the Courts, where extensions can always be requested and are often granted.

In the former case, the European Courts take the position that they lack the competence to allow a latecomer to initiate an action, for example, more than two months after the Commission decision which is being challenged. Although force majeure is theoretically available as an excuse, the Courts almost never make an exception.

In fact, calculating a deadline is more complicated since the Courts' rules grant extra days on account of distance from Luxembourg. Thus a British plaintiff gets ten days in addition to the basic two months, a Belgian gets two days and an American gets an extra month.

These rules were prescribed in the days when postal services were predictable. Today, when filings are commonly made by messenger, the effect of the 'extension for distance' is to allow British lawyers six more days for polishing their text than their Belgian counterparts. Quirks arise because months are of varying length. A UK firm wishes to appeal against a decision taken on 24 December. Should the ten days of extension for distance come before the two months given by the treaty? If so, the date to appeal expires on 3 March. If the two-month period comes first, the date would be 6 March.

Because raising an action in Luxembourg is an exception, lawyers usually run no risks, and if in doubt file by the earliest relevant date.

In the Cement cases in 1995, there was an interesting and rare outbreak of collective hysteria in the legal community. The Commission discovered that a page was missing from the Italian version of a decision addressed to 40 enterprises. In order not to give the Italians an extra long time to submit their appeal, the Commission renotified all the decisions.

Common sense indicated that the time to appeal would start from receipt of the new texts. However, there ensued a period of anguished flapping during which 40 sets of lawyers tried to reassure themselves, each other and their clients that the time would expire by reference to the receipt by each company of the second text.

After consuming a week of mental energy in parsing court rules, a few conservative souls decided there was a risk and filed by reference to the earlier notification, and the rest scampered undignifiedly to do the same.

The judgements of the European Courts on this subject can be alarming. In the case of Misset, the issue was from what day the time started to run.

For example, for a decision communicated on 14 February, did the two-month period begin running on 14 February or on 15 February? Putting it differently, did the action become time-barred on 14 or 15 April? Some consternation was caused. Most people assumed that if the event occurred on 14 February, the two months started on 15 February and expired at midnight on 15 April. But the Misset judgement held that the two months ran from 00.01 on 15 February and expired at midnight on 14 April.

In order to know by what date an appeal must be filed, it is necessary to know the date upon which the decision appealed against was received.

Bayer was unlucky: its mail room received an envelope from Brussels by registered post. The envelope was then forwarded, unopened, to another division of the company, which returned it, still unopened, to the mail office. Then, almost a week after its actual receipt, the envelope was opened and stamped as received and given to the Bayer legal department, which signed a further acknowledgement of receipt (contained in the envelope) and returned it to the Commission.

The legal department used the date of its acknowledgement of receipt as the starting point for time to appeal. But the Court held that the filing was too late.

Another area of sensitivity relates to how the member states are informed about new requests from national courts to the European Courts for rulings.

Under the statute of the Court, a member state must submit any observations within two months of being notified about a new case. This means that a ministry of justice must identify the relevance of the case concerned, check with ministries which may be affected, decide to intervene, draft detailed observations and file them, all within two months. Some member states say this period should be extended.

However, every extension of deadlines will delay the final judgement. Since the European Courts are making remarkable progress in shortening the duration of cases before them, extra delays will not be welcome.

This article reflects the personal views of the author.