Avis juridique important

Judgment of the Court (Fifth Chamber) of 23 October 1985. - Riseria Modenese Srl v Council and Commission of the European Communities et Birra Peroni SpA. - Maize gritz - Non-contractual liability - Revision. - Case 267/80 rév. European Court reports 1985 Page 03499

Parties Subject of the case Grounds Decision on costs Operative part

PROCEDURE - APPLICATION FOR REVISION OF A JUDGMENT - CONDITIONS FOR THE ADMISSIBILITY THEREOF - FACT OF SUCH A NATURE AS TO BE A DECISIVE FACTOR

( STATUTE OF THE COURT OF JUSTICE OF THE EEC , ART . 41 )

IN CASE 267/80 R

RISERIA MODENESE SRL , REPRESENTED BY GIUSEPPE SAJEVA , OF THE ROME BAR , 10 VIA ANTONIO BAIAMONTI , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , CENTRE LOUVIGNY , 34 B IV RUE PHILIPPE-II ,

APPLICANT ,

V

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DANIEL VIGNES , DIRECTOR IN THE GENERAL SECRETARIAT OF THE COUNCIL , ASSISTED BY ARTHUR BRAUTIGAM , A PRINCIPAL ADMINISTRATOR IN THE LEGAL DEPARTMENT OF THE GENERAL SECRETARIAT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF DR JORG KASER , THE HEAD OF THE LEGAL AFFAIRS DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , 100 BOULEVARD KONRAD- ADENAUER ,

AND

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY GUIDO BERARDIS , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

AND

BIRRA PERONI SPA , ACTING THROUGH GIORGIO NATOLI , ITS LEGAL REPRESENTATIVE AND CHAIRMAN , WHOSE REGISTERED OFFICE IS AT 6A VIA GUATTANI , ROME , REPRESENTED BY RAIMONDO MARINI-CLARELLI , OF THE ROME BAR , 4A VIALE DI VILLA GRAZIOLI , ROME , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JEAN HOSS , 15 COTE D ' EICH ,

DEFENDANTS ,

APPLICATION FOR THE REVISION OF THE JUDGMENT DELIVERED BY THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES ( FIFTH CHAMBER ) ON 13 NOVEMBER 1984 IN JOINED CASES 256 , 257 , 265 AND 267/80 , 5 AND 51/81 AND 282/82 ,

1 THE APPLICANT , RISERIA MODENESE , FOUNDS ITS APPLICATION FOR THE REVISION OF THE COURT ' S JUDGMENT OF 13 NOVEMBER 1984 ON THE ARGUMENT THAT THE JUDGMENT WAS ' MANIFESTLY UNJUST ' AND RESULTED FROM AN ERROR ON THE PART OF THE COURT , WHICH WRONGLY ASSUMED THAT RISERIA MODENESE HAD ASSIGNED ALL ITS RIGHTS TO REFUNDS TO BIRRA PERONI . THE APPLICANT CLAIMS THAT IN REALITY IT HAD ASSIGNED ONLY A PART OF ITS RIGHTS TO BIRRA PERONI , THE REMAINDER HAVING BEEN ASSIGNED TO ANOTHER BEER MANUFACTURER , BIRRA DREHER , AS WAS APPARENT FROM THE INVOICES ANNEXED TO ITS APPLICATION .

2 THE APPLICANT CONSIDERS THAT SUCH AN ERROR JUSTIFIES REVISION ; REVISION IN COMMUNITY LAW SHOULD BE INTERPRETED BROADLY IN THE LIGHT OF THE LAWS OF THE MEMBER STATES , UNDER WHICH REVISION IS POSSIBLE ON MORE GROUNDS THAN THOSE SET OUT IN ARTICLE 41 OF THE STATUTE OF THE COURT OF JUSTICE , IN PARTICULAR ON ACCOUNT OF ERROR , WILFUL MISREPRESENTATION , PROCEDURAL IRREGULARITY OR CONFLICTING JUDGMENTS .

3 THE COMMISSION CONSIDERS THAT , IN ITS JUDGMENT OF 13 NOVEMBER 1984 , THE COURT SIMPLY DREW THE NECESSARY CONCLUSIONS FROM THE FACTUAL INFORMATION WITH WHICH IT HAD BEEN PROVIDED BY RISERIA MODENESE ; THAT IS CLEAR FROM A COMBINED READING OF PAGES 2 AND 3 OF RISERIA MODENESE ' S APPLICATION , PAGES 5 AND 6 OF THE COMMISSION ' S DEFENCE , PAGE 17 OF THE REJOINDER , PAGE 7 OF THE COMMISSION ' S REPLY , PAGES 4 AND 5 OF RISERIA MODENESE ' S ANSWER OF 26 SEPTEMBER 1983 TO A QUESTION PUT BY THE COURT AND THE ANSWER GIVEN BY RISERIA MODENESE ' S REPRESENTATIVE AT THE HEARING ON 30 MAY 1984 TO QUESTIONS PUT BY MEMBERS OF THE COURT .

4 THE COMMISSION DISSENTS FROM THE APPLICANT ' S VIEW THAT ARTICLE 41 OF THE STATUTE SHOULD BE GIVEN A BROAD INTERPRETATION AND REFERS TO THE STRICT INTERPRETATION WHICH IS GIVEN TO THAT ARTICLE IN PREVIOUS JUDGMENTS OF THE COURT .

5 THE COMMISSION CONTENDS THAT THE ERROR ALLEGED BY THE APPLICANT IS NOT A ' FACT ' WITHIN THE MEANING OF ARTICLE 41 OF THE STATUTE OF THE COURT , A ' NEW FACT ' , A ' NEW FACT EXISTING PRIOR TO THE DELIVERY OF THE JUDGMENT ' OR ' A FACT WHICH IS A DECISIVE FACTOR ' .

6 FURTHERMORE , THE COMMISSION OBSERVES THAT THE GROUND FOR REVISION PUT FORWARD BY THE APPLICANT CONCERNS THE FACT THAT THE LATTER HAD ASSIGNED SOME OF ITS RIGHTS TO BIRRA DREHER AND ARGUES THAT THAT FACT WAS NOT UNKNOWN TO THE COURT AND TO THE APPLICANT , SINCE , ACCORDING TO THE APPLICANT ' S STATEMENTS , IT WAS CLEAR FROM THE DOCUMENTS BEFORE THE COURT .

7 LASTLY , THE COMMISSION CONSIDERS THAT , IN THE EVENT OF THE APPLICATION FOR REVISION BEING DECLARED ADMISSIBLE , IT WOULD IN ANY CASE BE UNFOUNDED , SINCE EVEN IF RISERIA MODENESE HAD ALSO ASSIGNED SOME OF ITS RIGHTS TO BIRRA DREHER THE COURT WOULD STILL HAVE BEEN COMPELLED TO DISMISS ITS APPLICATION FOR THE SAME REASONS AS WERE GIVEN IN THE CONTESTED JUDGMENT .

8 THE COUNCIL ALSO CONTENDS THAT THE APPLICATION FOR REVISION IS INADMISSIBLE . THE APPLICANT ITSELF HAS STATED THAT THE FACT THAT ITS RIGHTS TO REFUNDS WERE ASSIGNED PARTLY TO BIRRA DREHER APPEARED ' CLEARLY FROM THE DOCUMENTS BEFORE THE COURT ' ; AS A RESULT , THAT ASSIGNMENT CANNOT BE REGARDED AS A FACT UNKNOWN TO THE COURT AND TO THE APPLICANT WHEN THE JUDGMENT WAS GIVEN . IN ADDITION , THE COUNCIL DISSENTS FROM THE VIEW THAT THE CONDITIONS FOR REVISION IN COMMUNITY LAW SHOULD BE GIVEN A BROAD INTERPRETATION IN THE LIGHT OF THE LAWS OF THE MEMBER STATES , IN VIEW OF THE DIFFERENCES IN THE SOLUTIONS WHICH HAVE BEEN ADOPTED BY THE NATIONAL LEGAL ORDERS AND THE COMMUNITY LEGAL ORDER WITH REGARD TO SEVERAL POINTS . LASTLY , THE COUNCIL CONTENDS THAT THE APPLICANT HAS NO INTEREST IN OBTAINING THE REVISION OF THE CONTESTED JUDGMENT , SINCE IT HAS DISPOSED OF ITS RIGHTS AND THEREFORE CANNOT INSTITUTE PROCEEDINGS TO CLAIM COMPENSATION FOR THE INFRINGEMENT THEREOF .

9 IN ITS OBSERVATIONS , BIRRA PERONI CONFIRMS THAT IT IS THE ASSIGNEE OF ONLY A PART OF THE RIGHTS TO RISERIA MODENESE ' S REFUNDS AND THAT BIRRA DREHER IS THE OTHER ASSIGNEE . IT CONSIDERS THAT THE APPLICATION FOR REVISION IS ADMISSIBLE .

11 THE APPLICANT BASES ITS APPLICATION FOR REVISION ON THE FACT THAT , CONTRARY TO THE STATEMENTS CONTAINED IN THE CONTESTED JUDGMENT TO THE EFFECT THAT BIRRA PERONI WAS THE SOLE ASSIGNEE OF ITS RIGHTS TO REFUNDS , BIRRA PERONI WAS THE ASSIGNEE OF ONLY A PART OF ITS RIGHTS , THE REMAINDER HAVING BEEN ASSIGNED TO ANOTHER COMPANY , BIRRA DREHER .

12 IN THAT CONNECTION THE COURT , WITHOUT HAVING TO CONSIDER WHETHER THE OTHER TWO CONDITIONS LAID DOWN ARE SATISFIED , NEED MERELY NOTE THAT IN ANY EVENT THE FACT RELIED ON BY THE APPLICANT WAS NOT A DECISIVE FACTOR IN THE RESOLUTION OF THE DISPUTE . THE APPLICATION WAS DISMISSED IN THE CONTESTED JUDGMENT SOLELY BECAUSE THE APPLICANT WAS CLAIMING RIGHTS OF WHICH IT HAD DISPOSED BY ASSIGNMENT ( A FACT WHICH IT CONFIRMS IN ITS APPLICATION FOR REVISION ) AND NOT ON THE GROUND THAT IT HAD ASSIGNED THEM TO A PARTICULAR ASSIGNEE . THE REFERENCE TO BIRRA PERONI AS THE ASSIGNEE WAS NOT NEEDED TO SUPPORT THE OPERATIVE PART OF THE JUDGMENT . AS A RESULT RISERIA MODENESE ' S ACTION HAD TO BE DISMISSED IRRESPECTIVE OF THE IDENTITY OF ITS ASSIGNEE OR ASSIGNEES .

COSTS

13 PURSUANT TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

SINCE THE APPLICANT HAS FAILED IN ITS SUBMISSIONS , IT SHOULD BE ORDERED TO PAY THE COSTS INCURRED BY THE COUNCIL AND THE COMMISSION . BIRRA PERONI , WHICH , IN ITS OBSERVATIONS , SUPPORTED THE CLAIMS MADE BY THE APPLICANT , WHICH WAS THE UNSUCCESSFUL PARTY , MUST BEAR ITS OWN COSTS .

ON THOSE GROUNDS ,

THE COURT ( FIFTH CHAMBER )

HEREBY :

( 1 ) DISMISSES THE APPLICATION FOR REVISION AS INADMISSIBLE ;

( 2)ORDERS THE APPLICANT TO PAY THE COSTS INCURRED BY THE COUNCIL AND THE COMMISSION AND ORDERS BIRRA PERONI TO BEAR ITS OWN COSTS .