Joined Cases C-478-482/11P Gbagbo et al.

The Court dismisses  appeals of Mr Gbagbo, former President of Côte d’Ivoire, and a number of his political associates against  orders declaring their actions for annulment of measures adopted against them to be inadmissible.

In the autumn of 2010 Presidential elections were held in Côte d’Ivoire, following which the UN certified that Mr Alassane Ouattara had won. In that context, the Council of the European Union imposed  restrictive measures in respect of travel and freezing of funds against several persons obstructing the processes of peace and national reconciliation in Côte d’Ivoire, such as Mr Gbagbo, formerly President of Côte d’Ivoire, Mr N’Guessan, formerly Prime Minister, and Mr Djédjé, Mr Koné and Ms Boni-Claverie, who had allegedly taken part in Mr Gbagbo’s illegitimate government.

On 7 July 2011 those persons brought actions before the General Court of the European Union for the annulment of several of those Council measures. The General Court dismissed their actions as being manifestly inadmissible because they were out of time. On 21 September 2011 Mr Gbagbo, Mr Koné, Ms Boni-Claverie, Mr Djédjé and Mr N’Guessan brought appeals against those orders of the General Court.

First, they claimed that the General Court erred in law by not accepting the existence of force majeure. By the second ground of appeal, the appellants claimed that the General Court was wrong to hold that the time-limit for bringing proceedings and the principle of legal certainty underlying that time-limit barred their action where the distinguishing features of this case were, first, that there was no notification of the contested measures and, secondly, the inapplicability of the extension of the time-limit on account of distance as set out in the Rules of Procedure of the General Court.

The first ground of appeal

The Court pointed out that Article 45 of the Statute of the Court provided that ‘no right shall be prejudiced in consequence of the expiry of a time‑limit if the party concerned proves the existence of unforeseeable circumstances or of force majeure.’

The Court reiterated that the strict application of procedural rules served the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (Case C‑426/10 P Bell & Ross v OHIM [2011], on which I wrote this post).

Furthermore, it was for the party concerned to establish, first, that abnormal circumstances, unforeseeable and outside his control, made it impossible for him to comply with the time‑limit for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU and, secondly, that he could not guard against the consequences of those circumstances by taking appropriate steps without making unreasonable sacrifices (see Case C‑314/06 Société Pipeline Méditerranée et Rhône [2007]).

The Court held that none of the appellants had presented, in their appeals before the Court, any material which might enable the Court to understand in what way and for what specific period of time the general situation of armed conflict in Côte d’Ivoire and the personal circumstances relied on by the appellants prevented them from bringing their actions in good time.

In those circumstances, the first ground of appeal must be rejected.

The second ground of appeal

The Court found that the General Court was correct to hold that it was entitled to examine of its own motion whether the time-limit for bringing proceedings had been observed, that being a matter of public policy ( Case 79/70 Müllers v CES [1971]).

The Court held that in this case, the contested measures were published in the Official Journal of the European Union, Series L, but were also, pursuant to Article 7(3) of Decision 2010/656, as amended by Decision 2010/801, and Article 11a(3) of Regulation No 560/2005, as amended by Regulation No 25/2011, to be communicated to the persons and entities concerned, either directly if their addresses were known, or, if not, through the publication of a notice.

The Court pointed out that that situation was a consequence of the particular nature of the contested measures, which at the same time resembled both measures of general application in that they imposed on a category of addressees determined in a general and abstract manner a prohibition on, inter alia, making available funds and economic resources to persons and entities named in the lists contained in their annexes and also a bundle of individual decisions affecting those persons and entities (see, to that effect, Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008], on which I wrote this post).

The Court argued that, while, admittedly, the entry into force of measures such as the contested measures was effected by their publication, the period for the bringing of an action for the annulment of those measures under the fourth paragraph of Article 263 TFEU ran, for each of those persons and entities, from the date of the communication which they must receive.

Given that such notices were capable of enabling the persons concerned to identify the legal remedies available to them in order to challenge their designation in the lists concerned and the date when the period for bringing proceedings expires, it was important that the appellants should not be able to defer the starting point of the period for bringing proceedings by relying on the fact that there was no direct communication or that they actually became aware of the contested measures at a later date (Case C‑417/11 P Council v Bamba [2012]).

The Court held if such a possibility were, in the absence of force majeure, open to the appellants, it would jeopardise the very objective of a time-limit for bringing proceedings, which was to protect legal certainty by ensuring that European Union measures which produce legal effects may not indefinitely be called into question (see, inter alia, Case C‑178/95 Wiljo [1997] ; Case C‑241/01 National Farmers’ Union [2002]; and Case C‑102/12 P Städter v ECB [2013]).

The Court held that the fact that the appellants were, during the period for bringing proceedings, in a non‑Member State, did not, in itself, mean that they were in a situation which was objectively different, with regard to the application of that time-limit, from the situation of persons and entities established within the European Union who were the subject of restrictive measures of the same kind.

The Court concluded that even though the General Court erred in law by holding that the periods for bringing proceedings started to run on the dates of publication of the contested measures, those periods had expired on 7 July 2011, the date when the actions were brought. That being the case, the second ground of appeal must be rejected.
Since neither of the grounds relied on by the appellants was well founded, the appeals must be dismissed.

Text of judgment