Parties Grounds Operative part

In Case C‑112/09 P,

APPEAL under Article 56 of the Statute of the Court of Justice, brought on 20 March 2009,

Sociedad General de Autores y Editores (SGAE), established in Madrid (Spain), represented by R. Allendesalazar Corcho and R. Vallina Hoset, abogados,

appellant,

the other party to the proceedings being:

European Commission ,

defendant at first instance,

THE COURT (Eighth Chamber),

composed of C. Toader, President of the Chamber, K. Schiemann (Rapporteur) and L. Bay Larsen, Judges,

Advocate General: J. Kokott,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1. By its appeal, the Sociedad General de Autores y Editores (SGAE) claims that the Court of Justice should set aside the order of the Court of First Instance (now the General Court) of the European Union of 13 January 2009 in Case T‑456/08 SGAE v Commission (‘the order under appeal’), by which that Court dismissed as manifestly inadmissible SGAE’s action for annulment of Commission Decision C(2008) 3435 final of 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/C2/38.698 – CISAC, ‘the contested decision’), on the ground that the action was commenced out of time.

Background to the dispute and procedure before the General Court

2. The appellant is a copyright collection society established in Spain.

3. By letter of 23 July 2008, the appellant was notified of the contested decision concerning an agreement in regard to the conditions of management and licensing of public performance rights of musical works by collecting societies, in the form of membership restrictions applied in the reciprocal representation agreements, as laid down by the model contract of the International Confederation of Societies of Authors and Composers or in the form of the application de facto of restrictions on membership.

4. The appellant brought an action against the contested decision by telecopy received at the Registry of the General Court on 6 October 2008. The original of the application was lodged at the Registry of the General Court on 9 October 2008.

5. Having been informed on 15 October 2008, by letter from the Registrar of the General Court, that its action against the contested decision had not been commenced within the time-limit laid down in Article 230 EC, the appellant, in its letter of 27 October 2008, invoked an excusable error as justifying an exception being made to the rules concerning time-limits.

6. In particular, it claims that it calculated the time-limit for commencing an action from 24 July 2008, the day following reception of the contested decision, and therefore concluded that the time-limit expired on 4 October 2008. Furthermore, since 4 October was a Saturday, it considered that, in accordance with Article 101(2) of the Rules of Procedure of the General Court, the time-limit expired on the following working day, namely Monday, 6 October 2008.

7. In that connection, the appellant interpreted Article 101(1)(a) and (b) and Article 101(2) of the Rules of Procedure of the General Court by employing the method of calculating time-limits indicated by the Commission during the procedure which gave rise to the contested decision on the basis of Article 3(1) and (2) of Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time‑limits (OJ, English Special Edition 1971 (II), p. 354). The content of the two provisions being essentially identical, the method indicated by the Commission led the appellant to the erroneous conclusion that, in Community law, time-limits should always be computed in the same manner, that is to say, by adding an additional day to the time-limit, given that the day of notification was not included in the calculation. That error was reason why the action before the General Court was lodged out of time.

8. Moreover, the appellant attempted to verify that its calculation was correct by approaching the Commission to obtain written confirmation of the date of notification of the contested decision. After receiving that confirmation, it contacted the Registry of the General Court to seek confirmation that its calculation of the time-limit was correct. It was informed that it was not possible to reply to its request.

The order under appeal

9. By the order under appeal, the General Court dismissed the action as inadmissible on the ground that it had not been brought within the time-limits laid down for that purpose.

10. The General Court first found that the action had been brought out of time and stated that, by virtue of the fifth paragraph of Article 230 EC and Article 101(1)(a) and (b), Article 101(2) and Article 102(2) of its Rules of Procedure, the period within which to bring an action began to run on 24 July 2008 and expired on 3 October 2008, including extensions on account of distance.

11. After recalling the Community case-law on the concept of excusable error, the General Court, in paragraphs 19 to 21 of the order under appeal, rejected the appellant’s argument based on the existence of such an error in the following terms:

‘19 However, no excusable error can exist in the present case since, first of all, the applicant did not apply the clear words of Article 101(1)(a) and (b) of the Rules of Procedure when calculating the time-limit for commencing actions but did so in accordance with an interpretation, made by another institution, of another provision, worded differently, contained in another body of rules applicable in a procedure before that institution. However, it must be held that, although the applicant did make such a claim, the conduct of the institution concerned, namely the Court of First Instance, did not induce it to act in that way.

21 Thirdly, the applicant did not display diligence, in particular, in seeking confirmation form the Registry of calculation of the time-limit which it had made for the purpose of commencing an action within the prescribed time-limit. It is not part of the duties of the officials of the Registry to express an opinion on the calculation of the time-limit for the commencement of an action …’

The forms of order sought by the appellant

12. By its appeal, the appellant claims that the Court should:

– declare the present appeal to be admissible and well‑founded, and set aside the order under appeal;

– declare the action commenced before the General Court to be admissible and refer the case back to the General Court for further consideration of the substance of the case, and

– order the Commission to pay the costs of the present appeal.

The appeal

13. Under Article 119 of the Rules of Procedure, where an appeal is 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, and without opening the oral procedure, dismiss the appeal and, where appropriate, refrain from serving notice of the action on the defendant.

14. In the present case, the Court considers that the documents in the file provide it with sufficient information to dismiss the appeal as manifestly unfounded by way of such a reasoned order.

The appellant’s arguments

15. The appellant puts forward three grounds in support of its appeal.

16. It its first ground of appeal, the appellant complains that the General Court regarded itself, in paragraph 19 of the order under appal, as the ‘institution concerned’ within the meaning of the case-law on excusable error, that is to say, as the institution whose conduct brought about the error at issue. However, it is clear from that case-law that the institution concerned is always the institution having adopted the contested measure, in the present case, the Commission.

17. In its second ground of appeal, the appellant complains that the General Court failed to take account of the fact that Article 101(1) of the Rules of Procedure and Article 3 of Regulation No 1182/71 must be interpreted in uniform fashion. In paragraph 19 of the order under appeal, the General Court erred in regarding the Commission’s interpretation of the said Article 3 as irrelevant by describing it as ‘an interpretation, made by another institution, of another provision, worded differently, contained in another body of rules applicable in a procedure before that institution’. According to the appellant, time-limits must be calculated in the same manner, regardless of whether Regulation No 1182/71 or the Rules of Procedure of the Court of First Instance are applied.

18. In its third ground of appeal, the appellant complains that the General Court acted contrary to the case‑law on excusable error in so far as it applied that case-law in an erroneous and overly restrictive manner. The conditions for establishing the existence of an excusable error are fulfilled in the present case. In particular, on the one hand, exceptional circumstances are present which are such as to give rise, to a decisive extent, to a pardonable confusion in the mind of the party concerned and, on the other hand, the appellant displayed all the diligence required of a normally well-informed person.

Findings of the Court

19. The three grounds of appeal must be considered together inasmuch as they are all directed against the refusal of the General Court to accept that there is excusable error in the present case.

20. It is appropriate to recall that, in the context of the Community rules on time-limits for instituting proceedings, the concept of excusable error justifying a derogation from those rules can concern 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 a party acting in good faith and displaying all the diligence required of a normally well-informed person (see, in particular, Case C‑195/91 P Bayer v Commission [1994] ECR I‑5619, paragraph 26). The strict application of those rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see, to that effect, Case 42/85 Cockerill-Sambre v Commission [1985] ECR 3749, paragraph 10; Order in Case C‑239/97 Ireland v Commission [1998] ECR I‑2655, paragraph 7; and Order in Case C‑242/07 P Belgium v Commission [2007] ECR I‑9757, paragraph 16).

21. It must be stated that the application of that case-law by the General Court is neither erroneous nor overly restrictive. The General Court was fully entitled to conclude that there was no excusable error in the present case.

22. It is true, as the appellant correctly pointed out in its appeal, that the ‘institution concerned’ referred to by the abovementioned case‑law is the one which adopted the contested measure, in the present case, the Commission.

23. However, it must be noted that the conduct of the Commission has not been such, either alone or to a decisive extent, as to give rise to a pardonable confusion in the mind of a party acting in good faith and displaying all the diligence required of a normally well-informed person.

25. The question whether Article 101 of the Rules of Procedure of the General Court and Article 3 of Regulation No 1182/71 must be interpreted in like manner is therefore irrelevant in determining the time-limit for commencing the action at issue. Consequently, it must be held that the General Court did not err in not considering that question.

26. In any event, a normally well-informed person would not have chosen an interpretation, manifestly contra legem , of the Rules of Procedure of the General Court deduced from an interpretation by the Commission of different rules without at least ascertaining whether the calculation of the time‑limit resulting from that interpretation was correct.

27. In that context, the appellant cannot reasonably argue that, having sought, in vain, confirmation from the Registry of the General Court that its calculation was correct, it had displayed all the diligence required of a normally well‑informed person. As the General Court correctly held in paragraph 21 of the order under appeal, it is not part of the duties of the officials of the Registry to express an opinion on the calculation of the time-limit for the commencement of an action.

28. Moreover, it must be considered that it was also without error that the General Court found, in paragraph 19 of the order under appeal, that its conduct did not mislead the appellant in the calculation of the time-limits for commencing actions.

30. Having regard to the foregoing, the three grounds of appeal put forward by the appellant must be rejected and, consequently, the appeal must be dismissed in its entirety.

Costs

31. Under Article 69(1) of the Rules of Procedure of the Court of Justice, applicable to the procedure on appeal by virtue of Article 118, a decision as to costs is to be given in the order which closes the proceedings.

32. As the present order was adopted prior to service of the application on the defendant and before the latter could have incurred costs, it is sufficient to decide that the appellant must bear its own costs.

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

1. The appeal is dismissed.

2. Sociedad General de Autores y Editores (SGAE) shall bear its own costs.