On January 24, 2019, Advocate General Wahl issued an opinion in a Polish company’s (“RF”) appeal before the Court of Justice and provided guidance on “unforeseeable circumstances or force majeure” in the context of a failure to comply with the time limit for lodging an application before the General Court.
In 2016, the Commission adopted a decision rejecting an antitrust complaint in the rail transport freight forwarding sector. RF appealed the decision to the General Court, which in 2017 dismissed the case because the application had been lodged out of time. The General Court considered that RF had not been able to establish the existence of unforeseeable circumstances or of force majeure to justify its failure to lodge its appeal in time. The General Court ruled that only an unavoidable event can be regarded as an unforeseeable circumstance or force majeure.
According to settled case law, the test for unforeseeable circumstances or force majeure consists of an objective and a subjective limb. The objective limb relates to “abnormal circumstances unconnected with the party” and the subjective element involves the “obligation (…) to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices.”
According to Advocate General Wahl, to satisfy the objective element, it should be sufficient for a party to show that the failure to comply with the prescribed time limit was caused by an unusual delay in the particular circumstances of the case (such as distance or time of the year). The General Court therefore erred in law in concluding that a party may be exempted from time-bar only if the failure to comply with the prescribed time limit was caused by an unavoidable event.
However, Advocate General Wahl concluded that this error should not cause the order under appeal to be set aside. According to settled case law, where the grounds of a decision of the General Court are vitiated by an error of law, but its operative part is well founded on other legal grounds, such an error should not cause that decision to be set aside, and the grounds should be substituted. Because the General Court examined the measures RF had taken
to avoid exceeding the prescribed time limit, the legal error identified does not affect the operative part of the order under appeal.
 RF v Commission (Case C-660/17 P), opinion of Advocate General Wahl, EU:C:2019:67.
 PL – Rail transport freight forwarding – PKP Cargo (Case COMP/40251), Commission decision of September 15, 2016.
 Bayer v. Commission (Case C-195/91 P) EU:C:1994:412.
 RF v Commission (Case C-660/17 P), opinion of Advocate General Wahl, EU:C:2019:67, para. 32.