On March 16, 2023 Koninklijke Boskalis NV, established in Sliedrecht (Netherlands), and Boskalis Offshore Transport Services NV, established in Antwerp (Belgium), lodged an action against Council Directive (EU) 2022/2523 of 14 December 2022 on ensuring a global minimum level of taxation for multinational enterprise groups and large-scale domestic groups in the Union. The applicants claimed that the Court should:

• partially annul the Council Directive (EU) 2022/2523 of 14 December 2022 on ensuring a global minimum level of taxation for multinational enterprise groups and large-scale domestic groups in the Union (OJ 2022 L 328, p. 1); “the contested measure”;
• order the Council of the European Union to pay the costs of the proceedings.

By its order of July 14, 2023 (ECLI:EU:T:2023:415) the Seventh Chamber of the General Court ordered that the action is dismissed as manifestly inadmissible.

From the order of the Court 

Law

3   Under Article 126 of the Rules of Procedure of the General Court, where the action is manifestly inadmissible, the General Court may decide to give a decision by reasoned order without taking further steps in the proceedings.

4   In the present case, the Court considers that it has sufficient information available to it from the material in the file and has decided, pursuant to that article, to give a decision without taking further steps in the proceedings.

5   Under the sixth paragraph of Article 263 TFEU, proceedings for annulment must be instituted within two months of the publication of the contested measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. Under Article 59 of the Rules of Procedure, where the time-limit allowed for initiating proceedings against a measure adopted by an institution runs from the publication of that measure in the Official Journal of the European Union, that time-limit is to be calculated from the end of the fourteenth day after such publication. In accordance with Article 60 of the Rules of Procedure, that time-limit must be extended on account of distance by a single period of 10 days.

6   According to settled case-law, that time-limit for bringing proceedings is a matter of public policy, it having been established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice. The Court must thus ascertain of its own motion whether that time-limit was observed (judgments of 23 January 1997, Coen, C‑246/95, EU:C:1997:33, paragraph 21, and of 18 September 1997, Mutual Aid Administration Services v Commission, T‑121/96 and T‑151/96, EU:T:1997:132, paragraphs 38 and 39).

7   In the present case, it is apparent from the documents in the file that the contested measure was published in the Official Journal on 22 December 2022. It follows that the time limit for applying for the annulment of that measure or of one of its provisions, in accordance with Article 263 TFEU, expired on 15 March 2023. The action, lodged on 16 March 2023, is therefore out of time.

8   In addition, the applicants have not pleaded the existence of unforeseeable circumstances or of force majeure which would allow the Court to vary the time-limit in question on the basis of the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, which applies to the procedure before the General Court by virtue of Article 53 thereof.

9   It follows from all of the above considerations that the action must be dismissed as manifestly inadmissible and there is no need for it to be served on the defendant.

Costs

10 As the present order was adopted prior to service of the application on the defendant and before the latter could have incurred any costs, it is sufficient to decide that the applicants must bear their own costs pursuant to Article 133 of the Rules of Procedure.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby orders:

1. The action is dismissed.
2. Koninklijke Boskalis NV and Boskalis Offshore Transport Services NV shall bear their own costs.

Remarks ITP

From the remarks made in consideration 5 it follows that in the underlying case by the application being lodged at the Court Registry on March 16, 2023 it was lodged one day too late. From consideration 5 it follows that the correct order to calculate the ultimate date on which proceedings for annulment must be instituted is as follows:

Publication date of the Directive + the time-limit is to be calculated from the end of the fourteenth day after such publication + proceedings for annulment must be instituted within two months of the publication of the contested measure + that time-limit must be extended on account of distance by a single period of 10 days

Publication date of the Directive + 14 days + 2 months + 10 days.

In steps

Publication date of the Directive + 14 days = December 22, 2022 + 14 days = January 5, 2023

January 5, 2023 + 2 months = March 5, 2023

March 5 + 10 days = March 15, 2023 = the ultimate date for lodging an action for an (partial) annulment of a Directive.

It is very important to have the order right, because if one by mistake hustles the periods one might by mistake end up with the wrong date. If in the underlying case one for example by mistake would first take the 2-month period after the publishing date into account followed by adding the periods that are mentioned in days, in the underlying case one would end up with a wrong ultimate lodging date:

Publication date + 2 months + 14 days + 10 days gives a wrong deadline

December 22, 2022 + 2 months = February 22, 2023

February 22, 2023 + 14 days = March 8, 2023

March 8, 2023 + 10 days = March 18, 2023 (Which shows the importance of using the right order of periods when calculating an ultimate lodging date, because by calculating the ultimate date in this manner one mistakenly might think that one has 3 additional days to lodge an action for an (partial) annulment of a Directive)

Not only Boskalis lodged an action for a partial annulment of a Directive. At least one other party (Fugro) also lodged an action for a partial annulment of the EU Pillar 2 Directive. More information on that action can be found in our article here.

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