By submitting an appeal Bell & Ross BV sought to have set aside the order of the General Court of the European Union under which the court dismissed as manifestly inadmissible by reason of its lateness.
Although documents have been sent to court by fax on time, in accordance with the proceedings’ terms, the relevant original documents had to be submitted to the court no later than 10 days. Unfortunately, the court received only the copies of original documents, not originals. The original documents reached the court only when the deadline had expired.
Appellant substantiated its appeal by an excusable error in order to justify the submission of the signed originals of the application after this 10 day period. The appellant argued that it had applied to the service provider to prepare copies of originals, and that this situation can be explained only that during the preparation process of the claim, which was later lodged at the Registry of the Court, original documents had been mixed up with the copies and the service provider returned the originals to the company, but not to the court.
ECJ pointed out that the concept of excusable error must be strictly construed and 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 exercising all the diligence required of a normally experienced trader (see 29 May 1991 the Court of First Instance Bayer v Commission, T-12/90 and 11 December 2006, the order of the Court of MMT before the Commission, T-392/05).
ECJ held that the failure to submit the signed original of the application was not one of the defects capable of being regularised under Article 44(6) of the Rules of Procedure of the General Court. Thus, an application which was not signed by a lawyer was affected by a defect which was such as to entail the inadmissibility of the action upon the expiry of the procedural time-limits, and could not be put in order (see order in Case C-163/07 P Diy-Mar Insaat Sanayi ve Ticaret and Akar v Commission ).
The court noted that the strict application of those procedural rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice. In accordance with the second paragraph of Article 45 of the Statute of the Court of Justice, no derogation from the procedural time-limits may be made save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to force majeure (see Case 42/85 Cockerill-Sambre v Commission; and order in Case C-242/07 P Belgium v Commission).
