Avis juridique important

Order of the Court of 25 February 1992. - Walter Gill v Commission of the European Communities. - Officials - Judgment on appeal - Application for revision - Admissibility. - Case C-185/90 P - Rev. European Court reports 1992 Page I-00993

Summary Parties Grounds Operative part

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Procedure - Revision of a judgment - Conditions for the admissibility of the application - New fact - Application concerning a judgment of the Court, given on appeal, ruling exclusively on questions of law and referring the case back to the Court of First Instance - Inadmissibility

(Statute of the Court of Justice of the EEC, Art. 41)

An application for revision of a judgment of the Court of Justice allowing an appeal against a judgment of the Court of First Instance on the ground that that court has infringed Community law and referring the case back to the Court of First Instance for a decision on the substance of the case is inadmissible. In such a judgment the Court of Justice rules only on questions of law and not on the facts as found by the Court of First Instance. It follows that such a judgment cannot be the subject of an application for revision based on the alleged existence of a new fact.

In Case C-185/90 P-Rev.,

Walter Gill, residing at Long Barn, Stoke-by-Clare, Sudbury, Suffolk (United Kingdom), represented by Aloyse May, of the Luxembourg Bar, with an address for service in Luxembourg at his Chambers, 31 Grand-Rue,

applicant for revision,

v

Commission of the European Communities, represented by J. Griesmar, Legal Adviser, and Sean van Raepenbusch, a member of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Roberto Hayder, a member of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for revision of the judgment of the Court of Justice (Second Chamber) of 4 October 1991 in Case C-185/90 P Commission v Gill [1991] ECR I-4779,

THE COURT,

composed of: O. Due, President, Sir Gordon Slynn, R. Joliet, F.A. Schockweiler, F. Grévisse and P.J.G. Kapteyn (Presidents of Chambers), G.F. Mancini, C.N. Kakouris, J.C. Moitinho de Almeida, G.C. Rodríguez Iglesias, M. Zuleeg and J.L. Murray, Judges,

Advocate General: F.G. Jacobs,

Registrar: J.-G. Giraud,

after hearing the Opinion of the Advocate General,

makes the following

Order

1 By application lodged at the Court Registry on 2 December 1991, Mr Walter Gill, a former official of the Commission of the European Communities, applied, pursuant to Article 41 of the EEC Statute and the corresponding provisions of the ECSC and EAEC Statutes of the Court of Justice, for the revision of the judgment of the Court (Second Chamber) of 4 October 1991 in Case C-185/90 P Commission v Gill [1991] ECR I-4779.

2 In that judgment the Court allowed the Commission' s appeal against the judgment of the Court of First Instance of the European Communities (Fourth Chamber) of 6 April 1990 in Case T-43/89 between Mr Walter Gill and the Commission, set aside that judgment and referred the case back to the Court of First Instance.

3 Mr Gill claims that the Court should:

"I. Primarily

(1) declare the present application admissible as made within the time-limit prescribed in the Rules of Procedure of the Court of Justice;

(2) revise paragraph 26 of the judgment delivered by the Court of Justice on 4 October 1991, which erroneously interpreted the report of the Invalidity Committee;

(3) deduce that the judgment of 4 October 1991 must be revised on account of the discovery of new facts resulting from the medical certificates of Dr Schneider of 24 February 1989 and 1 October 1991;

(4) as a result, declare that, in view of the new facts, the links of causality, relationship and continuity required by the second paragraph of Article 78 of the Staff Regulations are established, and that therefore there has been no breach of Community law;

(5) accordingly, declare that the second plea in law in the appeal is unfounded;

(6) draw the legal inferences from that revision and in consequence vary the operative part of the judgment delivered by the Court of Justice on 4 October 1991;

(7) refer the case back to the Court of First Instance for it to give judgment accordingly;

II. In the alternative

(8) if necessary, and in so far as the Court of Justice may exercise the power, which seems to be provided by Article 100(2) of the Rules of Procedure, to reserve the case for determination by itself, to proceed with an examination of the substance of the case, in particular in the light of the new facts;

III. In the further alternative

(9) and, if the Court of Justice should consider itself inadequately informed, order the establishment of a new Invalidity Committee which shall have as its task to give its opinion on the causal relationship between the duties performed by the applicant at the Commission and the deterioration in his health; alternatively, in accordance with Article 45 et seq. of the Rules of Procedure, specify by way of an order the facts to be proved and, by order, commission an expert to give an opinion on the said causal relationship;

In any event

(10) reserve to the applicant all other rights and remedies;

(11) make an appropriate order as to costs."

4 In its observations, lodged at the Court Registry on 28 January 1992, the Commission contends that the Court should:

- dismiss the application as inadmissible;

- order the applicant to pay the costs.

5 In support of his application Mr Gill claims that paragraph 26 of the Court' s judgment should be revised on the ground that the statement by the Court that the Invalidity Committee had denied the existence of any causal relationship between Mr Gill' s illness and his duties with the Communities constitutes a manifest error of interpretation. According to Mr Gill, the Invalidity Committee never expressly denied the existence of a causal relationship between the deterioration in his health and the performance of his duties in the service of the Communities but, at most, entertained doubts on that matter. He maintains that in cases such as the present one any doubt should be resolved in favour of the official.

6 Mr Gill further maintains that his application is, moreover, based on the existence of a new fact that emerges from two medical certificates dated 24 February 1989 and 1 October 1991 respectively. Those certificates show that Mr Gill' s condition stabilized and subsequently improved slightly since he ceased to be an official of the Commission. Consequently, the existence of a causal relationship between his condition or its aggravation and the performance of his duties in the service of the Communities is proven and the Court of First Instance therefore did not in any way infringe Community law when it held Mr Gill' s action to be well founded.

7 The Commission considers that the application for revision is inadmissible.

8 It maintains that the submissions put forward in support of Mr Gill' s application, with a view to proving that the Court of Justice committed a manifest error of interpretation concerning the Invalidity Committee' s report, are not linked to the emergence of a new fact and therefore cannot call in question the authority of res judicata attaching to the judgment of the Court.

9 As regards Mr Gill' s argument to the effect that the existence of a new fact emerges from the two aforementioned medical certificates, the Commission contends first, that the applicant has not complied with the three-month time-limit laid down in Article 98 of the Rules of Procedure. Mr Gill had knowledge of the first medical certificate as from 24 February 1989 and the second certificate merely confirmed the medical opinion contained in the first. Secondly, the Commission points out that the alleged new fact relied upon in this case was not unknown to the Court of Justice or to the party applying for revision, nor was it capable of having a decisive influence on the judgment of the Court of Justice of 4 October 1991. The fact relied upon was known to Mr Gill since at least February 1989 and to the Court of First Instance and also to the Court of Justice since 14 February 1990, the date on which the certificate of 24 February 1989 was lodged by the applicant at the hearing in Case T-43/89. Furthermore, the fact that there has been a slight improvement in Mr Gill' s condition since he ceased all occupational activity is not of such a nature as to call in question either the legality of the Commission' s decision, which was taken in accordance with the findings of the Invalidity Committee, or the legal appraisal by the Court of Justice of the grounds of the judgment of the Court of First Instance.

10 The Union Syndicale, Luxembourg, intervener in support of Mr Gill in Case C-185/90 P, informed the Court, by letter lodged at the Court Registry on 18 December 1991, that it had no observations to make concerning the application for revision.

11 In order to assess the admissibility of the present application it should be recalled that, according to the first paragraph of Article 41 of the Statute of the Court of Justice of the EEC,

"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."

12 It follows that revision is not an appeal procedure but an exceptional review procedure that allows an applicant to call in question the authority of res judicata attaching to a final judgment on the basis of the findings of fact relied upon by the court. Revision presupposes the discovery of elements of a factual nature which existed prior to the judgment and which were unknown at that time to the court which delivered it as well as to the party applying for revision and which, had the court been able to take them into consideration, could have led it to a different determination of the proceedings.

13 In the present case the applicant is seeking the revision of a judgment in which the Court of Justice held an appeal against a judgment of the Court of First Instance to be well founded and set aside that judgment on the grounds that that court had infringed Community law. The Court of Justice did not itself go on to make a final determination in the proceedings but referred the case back to the Court of First Instance for a decision on the substance of the case.

14 In that judgment, delivered on appeal, the Court of Justice therefore gave a decision on points of law only, and did not adopt a view on the facts as found by the Court of First Instance.

15 Following the referral of the case back to the Court of First Instance the proceedings are, moreover, pending in their entirety before that court, so that the applicant, who is relying upon the existence of a new fact, has the possibility of pleading it in the proceedings before the Court of First Instance.

16 It follows from the foregoing that the judgment of 4 October 1991, in which the Court did not have to rule on questions of fact, cannot be the subject of an application for revision based upon the alleged existence of a new fact.

17 Consequently, and without there being any need to examine the objections raised by the Commission, the application for revision of the aforesaid judgment of the Court of 4 October 1991 must, pursuant to Article 92(1) of the Rules of Procedure, be dismissed as manifestly inadmissible.

18 Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. However, Article 70 of those Rules provides that, in proceedings brought by servants of the Communities, the institutions are to bear their own costs.

On those grounds,

THE COURT

hereby orders:

1. The application for revision is dismissed as inadmissible;

2. The parties shall bear their own costs.

Luxembourg, 25 February 1992.