61978CJ0116(01)_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 116/78 REV .
ARTURO BELLINTANI
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,
V
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 . THE SECOND CONDITION IS THE REQUIREMENT OF PRIORITY IN TIME ; AT THE TIME OF THE DELIVERY OF JUDGMENT THE COURT MUST HAVE BEEN UNAWARE OF A FACT ALREADY IN EXISTENCE . FINALLY, THE THIRD CONDITION REQUIRES THAT THE UNKNOWN FACT SHOULD HAVE BEEN 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 DECISION OF THE COURT OF WHICH REVISION IS SOUGHT .
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 .