On June 19, 2019, the Court of Justice dismissed an appeal against a General Court order rejecting an appeal filed by RF, a Polish transportation company based in Gdynia, a city on the Baltic sea coast.[1] The General Court had rejected RF’s appeal because the original, signed version reached the General Court’s premises after the deadline to file an appeal. The General Court concluded that RF’s failure to meet the deadline due to a postal delay did not amount to an unforeseeable event or force majeure, which would have allowed for its acceptance, notwithstanding its late arrival in Luxembourg.

On September 15, 2016, the Commission rejected a complaint filed by RF regarding the Polish transport sector. Pursuant to Article 263 (6) TFEU, the deadline for an action for annulment runs for two months as of the publication of the decision, its notification to the plaintiff, or the day the plaintiff took knowledge of it. This deadline is automatically extended on account of distance for a period of 10 days for any applicant established outside of Luxembourg.[2] RF therefore had two months and 10 days for its appeal to arrive at the General Court’s premises. While RF faxed its appeal to the General Court within the deadline, the signed copy only arrived 17 days later, six days after the expiry of the deadline. RF argued that it sent the hard copy of the appeal through the Polish postal operator on the same date it sent the copy by fax, which was 11 days before the expiry of the deadline. RF claimed that the fact that the postal service took 17 days to deliver the original signed hard copy was out of its control and constituted force majeure.

The General Court rejected this argument in September 2017. RF appealed. But this month, the Court of Justice upheld the General Court’s ruling. According to the Court of Justice, only an event that could not have been avoided, thereby constituting a decisive reason for missing the deadline, can be regarded as an unforeseeable circumstance or force majeure. In order for an event to qualify as “unavoidable” the event must be external, abnormal, and outside of the responsibility of the party, and, in addition, the party must have taken appropriate measures to guard against the consequences of abnormal events, although there is no requirement to make unreasonable sacrifices.

The Court of Justice held that, for an unforeseeable circumstance or force majeure to occur, the claimant must show that the event could not have been avoided with sufficient diligence. In his Opinion,[3] Advocate General Wahl examined what could constitute sufficient diligence. AG Wahl noted that when a document is sent by mail, sufficient diligence implies a party (i) sent the original immediately after the fax; (ii) used more expensive delivery methods if there was a risk that the original would not arrive on time; and (iii) monitored the progress of the original or—if tracking is not available—at least contacted the Registry to verify that the original had arrived on time.

Because RF was only able to prove that it sent the original immediately after the faxed copy, but was unable to show it had adopted other measures to avoid delay, the Court of Justice rejected the appeal.

[1]      RF v. Commission (Case C-660/17 P), EU:C:2019:509.

[2]      Article 60 of Rules of Procedure of the General Court, OJ L 105/1.

[3]      RF v. Commission (Case C-660/17 P), opinion of Advocate General Wahl, EU:C:2019:67.