Analysis: “Time limits and force majeure at the Court of Justice of the EU during the COVID-19 crisis” by Daniel Sarmiento
COVID-19 has closed the doors of another EU Institution (the European Parliament having done so on 2 March 2020) – this time, the Court of Justice of the European Union (CJEU). Judges, Advocates General and staff have been sent home, hearings are postponed until further notice and only urgent procedures will be processed in the following days. The Court of Justice and the General Court are in lockdown.
But despite the severity of this halt, time-limits keep running. The CJEU issued a statement on Friday 13 (of all days…) declaring that ‘procedural time limits, including time limits for instituting proceedings, shall continue to run and the parties are required to comply with those time limits’.
Therefore, if your deadline to lodge an action of annulment expires tomorrow, you had better file it by then or you will be time-barred. In principle, the fact that both courts within the CJEU are in lockdown is no excuse to simply ignore the time limit.
Does this mean that time limits keep running irrespective of the circumstances?
The CJEU’s statement makes a specific reference to Article 45 of the Statute, a rule that states, in its second paragraph, 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’.
How is this provision to be interpreted during the COVID-19 crisis? Are all time limits, due to the mere fact that the Institution is in lockdown, subject to an extension at the request of a party? Does the CJEU’s case law on Article 45 apply to the current circumstances?
The answers to these questions are not that simple.
Some Member States have applied a rule of general suspension of all time-limits for proceedings at the national level. This measure has been applied to protect public court staff, the lawyers and the parties, from further exposure to COVID-19. However, many of them are teleworking, and both EU courts allow for submissions to be lodged through e-curia (in the case of the General Court this is compulsory). This means of lodging documents facilitates compliance with time limits and it allows lawyers who are teleworking to fulfil their duty to submit a document on time, easily and quickly from home. However, although e-curia is accessible to all lawyers, not all of them use it, and it takes a couple of days to create an account (and it is to be assumed that in these exceptional times it will take even longer). This will be the case of many lawyers in preliminary reference procedures, who are probably litigating before the CJEU courts for the first time and probably do not yet have an e-curia account.
So can it be argued that the force majeure criterion can be applied in a generalised way, or will it have to be considered on a case-by-case basis? If a Member State, like Italy or Spain, is in lockdown, and their lawyers are subject to severe restrictions, is there a general presumption that all lawyers acting from those Member States can benefit from a general exemption to comply with time limits? Or if a lawyer is currently on sick leave, will proof of health issues automatically trigger a force majeure? And what happens to lawyers participating in preliminary reference procedures with no access to e-curia?
In light of the case law on Article 45 of the Statute, the answers appear to lean on the side of a case-by-case approach. According to the settled case law of both the Court of Justice and the General Court, it is essential that any force majeure is scrutinized carefully and individually. Time limits are a matter of public order and cannot be waived easily by EU courts. These criteria might be applied more flexibly in the following months, but there appears to be no generalised exemption in sight. The statement of the CJEU certainly gives no hint in that direction.
In sum, and in light of the uncertainty that the reference to Article 45 of the Statute could create, it is safer to comply by all available means with the time limits currently running in proceedings before the Court of Justice and the General Court. If there are individual circumstances that could justify a delay, it is important that they are duly noted and evidenced, so that they can be accredited before either of the two courts. To assume, for example, that because in your home country there is a suspension of time-limits in court proceedings, such a rule will apply as a force majeure under Article 45 of the Statute, seems like a terribly risky option.
In case of doubt, it is better to err on the side of caution.
Daniel Sarmiento is Editor-in-Chief of EU Law Live and Professor of EU Law at the University Complutense of Madrid.