Avis juridique important

61982J0235(01)

European Court reports 1986 Page 01799

Summary

PROCEDURE - REVISION OF A JUDGMENT - CONDITIONS FOR ADMISSIBILITY OF THE APPLICATION - OBJECTION TO THE GROUNDS AND THE OPERATIVE PART OF THE CONTESTED JUDGMENT .

( RULES OF PROCEDURE , ART . 99 ( 1 ))

AN APPLICATION FOR REVISION WHICH DOES NOT CONTEST EITHER THE GROUNDS OR THE OPERATIVE PART OF THE JUDGMENT AT ISSUE AND WHICH IS , IN REALITY , NOT DIRECTED AT THAT JUDGMENT BUT AT THE MEASURES ADOPTED BY AN INSTITUTION FOR ITS IMPLEMENTATION , IS INADMISSIBLE .

Parties

IN CASE 235/82 REV .

FERRIERE SAN CARLO SPA , REPRESENTED BY FABRIZZIO MASSONI , AVVOCATO DELLO STATO , 273 AVENUE DEFRE , 1180 BRUSSELS ,

APPLICANT ,

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , MICHEL VAN ACKERE , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GIORGIOS KREMLIS , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR REVISION OF THE JUDGMENT GIVEN BY THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES ( FIFTH CHAMBER ) ON 30 NOVEMBER 1983 IN CASE 235/82 .

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 19 NOVEMBER 1985 FERRIERE SAN CARLO SPA BROUGHT AN ACTION FOR REVISION OF THE JUDGMENT GIVEN BY THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES ON 30 NOVEMBER 1983 IN CASE 235/82 (( 1983 ) ECR 3949 ).

2 BY THAT JUDGMENT THE COURT DISMISSED THE APPLICANT ' S PRINCIPAL CLAIMS SEEKING THE ANNULMENT OF THE COMMISSION ' S DECISION OF 13 AUGUST 1982 IMPOSING A FINE ON IT UNDER ARTICLE 58 OF THE ECSC TREATY AND COMMISSION DECISION NO 2794/80/ECSC OF 30 OCTOBER 1980 FOR EXCEEDING THE STEEL QUOTAS ALLOCATED TO IT FOR THE FOURTH QUARTER OF 1980 . THE COURT ALSO DISMISSED THE APPLICANT ' S ALTERNATIVE CLAIMS FOR , ON THE ONE HAND , A REDUCTION OF THE FINE IMPOSED ON IT AND , ON THE OTHER , THE GRANT OF ' TERMS AND PAYMENT PERIODS ' WHICH TAKE ACCOUNT OF BOTH ITS FINANCIAL POSITION AND THE SITUATION IN THE IRON AND STEEL INDUSTRY . THE LATTER CLAIM WAS DISMISSED BY THE COURT ON THE GROUND THAT ' CLAIMS OF THIS SORT WHICH IN FACT REQUIRE THE COURT TO ISSUE INSTRUCTIONS TO THE COMMISSION , WHICH ALONE HAS THE POWER TO GRANT TERMS OF PAYMENT TO UNDERTAKINGS WHICH HAVE BEEN FINED , ARE MANIFESTLY INADMISSIBLE ' .

3 IN THESE PROCEEDINGS FOR REVISION OF THAT JUDGMENT THE APPLICANT CLAIMS THAT THE COURT SHOULD :

AMEND THE AFOREMENTIONED JUDGMENT OF 30 NOVEMBER 1983 AND ORDER THE COMMISSION TO DISCLOSE THE PROVISIONS ON WHICH THE APPLICATION OF FINES AND INTEREST RATES WHICH VARY ACCORDING TO THE MEMBER STATES IS BASED ;

DECLARE THAT THE SAME RATE OF INTEREST MUST BE APPLIED WITHIN THE COMMUNITY TO EACH PERSON , WHETHER NATURAL OR LEGAL , AND THAT THE RATE OF INTEREST MUST BE THE RATE OPERATING ON THE ECU MARKET ;

ORDER THE PUBLICATION OF THE RULES APPLICABLE TO THE CALCULATION OF INTEREST RATES .

4 THE COMMISSION CONTENDS THAT THE COURT SHOULD DISMISS THE APPLICATION FOR REVISION AS INADMISSIBLE AND ORDER THE APPLICANT TO PAY THE COSTS .

5 THE PROCEDURE RELATING TO THE MATTER OF THE ADMISSIBILITY OF THE APPLICATION FOLLOWED THE COURSE LAID DOWN IN ARTICLE 100 OF THE RULES OF PROCEDURE AND THE PARTIES SUBMITTED THEIR WRITTEN OBSERVATIONS . THE VIEWS OF THE ADVOCATE GENERAL WERE HEARD IN THE DELIBERATION ROOM .

6 IN SUPPORT OF ITS APPLICATION FOR REVISION , THE APPLICANT CLAIMS THAT IT TRIED UNSUCCESSFULLY TO OBTAIN FROM THE COMMISSION A LONGER PERIOD OF PAYMENT , AT A LOWER RATE OF INTEREST , WHICH WAS THE SUBJECT OF THE MAIN PROCEEDINGS . ON THAT OCCASION IT HAD DISCOVERED A NEW FACT , NAMELY THAT THE COMMISSION APPLIES INTEREST RATES WHICH VARY ACCORDING TO THE DIFFERENT MEMBER STATES . IT CONSIDERS THAT SUCH A PRACTICE IS CONTRARY TO ARTICLE 14 OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS , ARTICLES 2 , 3 ( C ), 67 ET SEQ . OF THE EEC TREATY AND ARTICLES 2 , 3 ( B ), 3 ( C ), 3 ( F ), 4 ( B ) AND 5 OF THE ECSC TREATY . IN ADDITION , IT MAINTAINS THAT THE PRACTICE CONSTITUTES A NEW FACT ENTITLING IT TO APPLY FOR REVISION UNDER ARTICLES 98 ET SEQ . OF THE RULES OF PROCEDURE OF THE COURT .

7 THE COMMISSION MAINTAINS THAT THE APPLICATION FOR REVISION IS INADMISSIBLE ON FOUR GROUNDS :

IT WAS MADE AFTER THE EXPIRY OF THE PERIOD OF THREE MONTHS LAID DOWN IN ARTICLE 98 OF THE RULES OF PROCEDURE ;

CONTRARY TO THE REQUIREMENTS OF ARTICLE 99 OF THE RULES OF PROCEDURE , THE APPLICATION DOES NOT INDICATE THE POINTS ON WHICH THE JUDGMENT IS CONTESTED ; IN ADDITION , THE CONTESTED JUDGMENT AND THE APPLICATION DO NOT HAVE THE SAME PURPOSE ;

EVEN IF IT IS ACCEPTED THAT THE NEW FACT MAY AFFECT THE CONTESTED JUDGMENT , IT COULD NOT HAVE HAD A DECISIVE INFLUENCE ON THE RESOLUTION OF THE DISPUTE ;

THE CONDITIONS FOR THE GRANTING OF PAYMENT PERIODS AND FOR FIXING THE INTEREST RATE APPLICABLE TO PAYMENT OVER A PERIOD OF TIME WERE NOT UNKNOWN TO THE COURT AND THE APPLICANT WHEN JUDGMENT WAS GIVEN .

8 ACCORDING TO ARTICLE 99 ( 1 ) OF THE RULES OF PROCEDURE OF THE COURT THE APPLICANT MUST INDICATE IN HIS APPLICATION FOR REVISION THE POINTS ON WHICH THE JUDGMENT IS CONTESTED .

9 IT MUST BE POINTED OUT THAT THIS APPLICATION ' FOR REVISION ' DOES NOT CONTEST EITHER THE GROUNDS OR THE OPERATIVE PART OF THE COURT ' S JUDGMENT OF 30 NOVEMBER 1983 , WHICH IS SAID TO BE CONTESTED . IN FACT , THE APPLICATION IS NOT DIRECTED AT THE JUDGMENT BUT AT THE MEASURES ADOPTED BY THE COMMISSION FOR ITS IMPLEMENTATION , IN PARTICULAR WITH REGARD TO THE GRANT OF PAYMENT PERIODS AND THE FIXING OF THE INTEREST RATE APPLICABLE TO THE TERMS OF PAYMENT . SUCH CLAIMS ARE INADMISSIBLE IN THE CASE OF AN APPLICATION ' FOR REVISION ' .

10 IN THOSE CIRCUMSTANCES AND WITHOUT THERE BEING ANY NEED TO EXAMINE THE OTHER OBJECTIONS OF INADMISSIBILITY RAISED BY THE COMMISSION , THE APPLICATION MUST BE DISMISSED AS INADMISSIBLE .

Decision on costs

COSTS

11 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . THE APPLICANT HAS FAILED IN ITS SUBMISSIONS . IT MUST THEREFORE BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIFTH CHAMBER )

HEREBY :

( 1 ) DISMISSES THE APPLICATION FOR REVISION AS INADMISSIBLE .

( 2 ) ORDERS THE APPLICANT TO PAY THE COSTS .