Avis juridique important

61978J0116(01)

European Court reports 1980 Page 00023 Greek special edition Page 00019

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Summary

Keywords

PROCEDURE - EXCEPTIONAL REVIEW PROCEDURES - REVISION - CONDITIONS FOR ADMISSIBILITY OF APPLICATION - FACT JUSTIFYING REVISION - CONCEPT ( STATUTES OF THE COURT OF JUSTICE OF THE ECSC , EEC AND EAEC , ARTS . 38 , 41 AND 42 RESPECTIVELY )

AN APPLICATION FOR REVISION , WHICH IS PROVIDED FOR IN ARTICLES 38 , 41 AND 42 OF THE PROTOCOLS ON THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC , THE EEC AND THE EAEC RESPECTIVELY , IS NOT A MEANS OF APPEAL BUT INTRODUCES A SPECIAL PROCEDURE ; THE FACT THAT REVISION DEFEATS THE FORCE OF RES JUDICATA MEANS THAT SUCH AN APPLICATION MUST BE THE SUBJECT OF STRICT CONDITIONS FOR ADMISSIBILITY . THESE CONDITIONS ARE THREE IN NUMBER :

- THERE MUST HAVE BEEN A TOTAL ABSENCE OF KNOWLEDGE ON THE PART OF THE COURT AND THE APPLICANT OF THE EXISTENCE OF A FACT PRIOR TO THE DELIVERY OF THE JUDGMENT WHOSE REVISION IS REQUESTED . THIS REQUIREMENT IS NOT SATISFIED IF THE FACT IN QUESTION HAS BEEN REFERRED TO IN ANY MANNER , OR EVEN TAKEN INTO ACCOUNT BY THE COURT IN THE COURSE OF THE MAIN PROCEEDINGS . IT IS NOT EVEN FULFILLED IF THE SAID FACT , WHILST NOT HAVING BEEN EXPRESSLY REFERRED TO IN THOSE PROCEEDINGS , WAS KNOWN AT THE TIME , WHETHER SUCH KNOWLEDGE WAS FORTUITOUS OR NOT.

- AT THE TIME OF THE DELIVERY OF JUDGMENT THE COURT MUST HAVE BEEN UNAWARE OF A FACT ALREADY IN EXISTENCE .

- THE UNKNOWN FACT MUST BE OF SUCH A NATURE AS TO BE ' ' A DECISIVE FACTOR ' ' AS REGARDS THE OUTCOME OF THE CASE , IN OTHER WORDS , IT MUST BE CAPABLE OF ALTERING THE JUDGMENT OF WHICH REVISION IS SOUGHT .

Parties

IN CASE 116/78 REV .

BORTOLO BETTI

CARLO BREGANI

ANGELO DEL GRANDE

ANGELO GEMELLI

GIAMPAOLO NICHELE

BRUNO PALOMBI

ANGELO RETTORE

ILARIO SCARTON

ALL LABORATORY TECHNICIANS AT THE JOINT RESEARCH CENTRE , ISPRA , REPRESENTED BY VICTOR BIEL , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 18A RUE DES GLACIS ,

APPLICANTS ,

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , DENISE SORASIO-ALLO , ACTING AS AGENT , ASSISTED BY DANIEL JACOB , OF THE BRUSSELS BAR , 36 RUE DE PRACTERE , BRUSSELS ( 1050 ), WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , LEGAL ADVISER TO THE COMMISSION , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE REVISION OF THE JUDGMENT GIVEN BY THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES ON 5 APRIL 1979 IN CASE 116/78 ,

Grounds

1 THE APPLICANTS ARE REQUESTING THE REVISION OF THE JUDGMENT IN CASE 116/78 GIVEN BY THE COURT ( SECOND CHAMBER ) ON 5 APRIL 1979 AND , IN VIEW OF THEIR APPLICATION IT IS APPROPRIATE TO CALL TO MIND SOME OF THE PRINCIPLES JUSTIFYING AND GOVERNING THE REVISION PROCEDURE .

2 THE PROTOCOLS ON THE STATUTE OF THE COURT ( ARTICLE 38 FOR THE ECSC , ARTICLE 41 FOR THE EEC AND ARTICLE 42 FOR THE EAEC RESPECTIVELY ) STATE THAT AN APPLICATION FOR REVISION OF A JUDGMENT MAY BE MADE TO THE COURT ONLY ON DISCOVERY OF A FACT WHICH IS OF SUCH A NATURE AS TO BE A DECISIVE FACTOR , AND WHICH , WHEN THE JUDGMENT WAS GIVEN , WAS UNKNOWN TO THE COURT AND TO THE PARTY CLAIMING THE REVISION . THE PREREQUISITE FOR THIS IS THE FULFILMENT OF THREE CONDITIONS . THE FIRST OF THESE CONDITIONS IS THE TOTAL ABSENCE OF KNOWLEDGE ON THE PART OF THE COURT AND THE APPLICANT OF THE EXISTENCE OF A FACT PRIOR TO THE DELIVERY OF JUDGMENT ; THIS REQUIREMENT IS NOT THEREFORE SATISFIED IF THE FACT IN QUESTION HAS BEEN REFERRED TO IN ANY MANNER , OR SIMPLY KNOWN EVEN IF NOT EXPRESSLY REFERRED TO IN THE COURSE OF THE PROCEEDINGS ; PRIOR KNOWLEDGE OF THE FACT , WHETHER OR NOT FORTUITOUS AND , A FORTIORI , THE ASSESSMENT OF ITS IMPORTANCE BY THE COURT , DO NOT THEREFORE CONSTITUTE A FACTOR MAKING POSSIBLE AN APPLICATION FOR REVISION , WHICH IS AN EXCEPTIONAL PROCEDURE DEPENDING ON STRICT REQUIREMENTS AND NOT A MEANS OF APPEAL .

3 THE STRICTNESS OF THESE CONDITIONS , WHICH MAY BE UNDERSTOOD IN CONSIDERATION OF THE FACT THAT REVISION DEFEATS THE FORCE OF RES JUDICATA , EXPLAINS WHY THE PROVISIONS QUOTED FROM THE STATUTES OF THE COURT PROVIDE FOR A FIRST PHASE IN THE REVISION PROCEDURE , WHICH OPENS WITH A JUDGMENT EXPRESSLY RECORDING THE EXISTENCE OF A NEW FACT , RECOGNIZING THAT IT IS OF SUCH A CHARACTER AS TO LAY THE CASE OPEN TO REVISION , AND DECLARING THE APPLICATION ADMISSIBLE ON THAT GROUND . ARTICLE 100 ( 1 ) OF THE RULES OF PROCEDURE STATES THAT WITHOUT PREJUDICE TO ITS DECISION ON THE MERITS , THE COURT SHALL , AFTER HEARING THE ADVOCATE GENERAL AND HAVING REGARD TO THE WRITTEN OBSERVATIONS OF THE PARTIES , GIVE IN THE FORM OF A JUDGMENT ITS DECISION ON THE ADMISSIBILITY OF THE APPLICATION .

4 THE THREE FACTS RELIED UPON BY THE APPLICANTS TO SUPPORT THE ADMISSIBILITY OF THEIR APPLICATION FOR REVISION MUST EACH BE EXAMINED IN TURN IN THE LIGHT OF THESE PRELIMINARY OBSERVATIONS .

5 THE FIRST ' ' NEW FACT ' ' ALLEGEDLY CONSISTS OF A STATEMENT CONTAINED IN PARAGRAPH 1 OF THE DECISION IN THE CONTESTED JUDGMENT TO THE EFFECT THAT SOME OF THE APPLICANTS WERE TEMPORARY EMPLOYEES IN CATEGORY B . ALL THAT PARAGRAPH DOES IN FACT IS TO MENTION , TOGETHER WITH THE ACTUAL POSITION OF THE APPLICANTS , A POSSIBLE GRADING WHICH THE APPLICANTS MIGHT PERHAPS ATTAIN . THE CONTESTED PARAGRAPH IS THEREFORE CORRECT . FROM THE POINT OF VIEW OF REVISION , IT MUST BE STATED THAT THE MENTION OF A POSSIBLE GRADING UNDER RULES IN FORCE IS NOT A NEW FACT AS DESCRIBED ABOVE AND THAT THE APPLICATION IS THEREFORE CLEARLY INADMISSIBLE ON THIS POINT .

6 THE SECOND ' ' NEW FACT ' ' ALLEGEDLY CONSISTS OF WRONG INTERPRETATION OF THE JUDGMENT IN THE PORRINI CASE ( CASE 65/74 OF 11 MARCH 1975 , ( 1975 ) ECR 319 ) IN REGARD TO THE PREVIOUS CLASSIFICATION OF THE APPLICANTS ; THIS MISTAKE ( WHICH IS , IN THE WORDS OF THE APPLICANTS ' ' INCOMPREHENSIBLE ' ' AND EVEN ' ' NOT PLAUSIBLE ' ' ) IS SAID TO BE CONTAINED IN PARAGRAPHS 5 TO 7 OF THE CONTESTED JUDGMENT . IT IS NOT NECESSARY TO DEMONSTRATE HERE THAT THE CONTESTED JUDGMENT AND THE PORRINI JUDGMENT CLEARLY FOLLOW THE SAME COURSE IN THE CASE-LAW OF THE COURT AND BOTH STATE THAT AN APPLICANT CLAIMING A CERTAIN STATUS IS ENTITLED TO THE RIGHTS OF ACTION ATTACHING TO THAT STATUS ( WHICH MEANS THAT IN THIS CASE THE APPLICANTS , AS LOCAL AGENTS , WERE ENTITLED TO BRING AN ACTION FOR RECOGNITION AS TEMPORARY EMPLOYEES ). IT IS SUFFICIENT TO STATE THAT THIS APPLICATION TO THE PRESENT CASE OF THE CASE-LAW CONTAINED IN THE PORRINI JUDGMENT IS IN NO SENSE A NEW FACT AND THAT THE ACTION IS CLEARLY INADMISSIBLE AS REGARDS THIS SECOND POINT .

7 THIS THIRD ' ' NEW FACT ' ' ALLEGEDLY CONSISTS OF A DISTORTION BY PARAGRAPHS 19 AND 32 OF THE CONTESTED JUDGMENT OF THE FACTS AND LAW ON THE SO-CALLED OPPORTUNITIES FOR PROMOTION OPEN TO THE APPLICANTS . WHILST THE APPLICANTS THEMSELVES ACKNOWLEDGE THAT IT IS POSSIBLE THAT THE RELEVANT REGULATIONS ' ' WILL FRANKLY HELP IN THE SELECTION OF STAFF TO WHOM NEW CONTRACTS ARE OFFERED ' ' AND THEREFORE A NEW CAREER , AND ALSO THAT THEY HAVE NOT , MOREOVER , PROVED EITHER IN THEIR STATEMENTS OR AT THE HEARING THAT THE ' ' GENERAL PROVISIONS TO GIVE EFFECT TO THE PROCEDURE FOR PROMOTING STAFF PAID FROM RESEARCH APPROPRIATIONS ' ' WERE NOT APPLICABLE DIRECTLY OR BY ANALOGY TO THE CAREER OF ' ' OTHER SERVANTS ' ' TO WHICH THE FIRST REFERENCE IN THE PREAMBLE AND ARTICLE 9 OF THAT DOCUMENT CLEARLY REFER , IT MUST BE STATED THAT THE INTERPRETATION OF ADMINISTRATIVE PROVISIONS IS NOT A ' ' NEW FACT ' ' AS DESCRIBED ABOVE AND THE ACTION IS CLEARLY INADMISSIBLE AS REGARDS THIS THIRD POINT AS WELL .

Decision on costs

COSTS

8 THE APPLICANTS HAVE FAILED IN THEIR ACTION . UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , THE INSTITUTIONS AND SERVANTS OF THE COMMUNITIES IN CASES SUCH AS THIS NORMALLY BEAR THEIR OWN COSTS . HOWEVER , SINCE THE PRESENT APPLICATION FOR REVISION IS OBVIOUSLY UNFOUNDED AND EVEN RECKLESS , THE SECOND PARAGRAPH OF ARTICLE 69 ( 3 ) OF THE SAID RULES , TO WHICH ARTICLE 70 PERMITS REFERENCE , SHOULD BE APPLIED AND THE APPLICANTS SHOULD BE ORDERED TO BEAR THE WHOLE OF THE COSTS FOR A VEXATIOUS ACTION HAVING UNREASONABLY CAUSED UNNECESSARY COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION FOR REVISION ;

2 . ORDERS THE APPLICANTS TO BEAR THE COSTS .

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