Judgment of the Court (Third Chamber) of 5 April 1984. - Jean-Jacques Geist v Commission of the European Communities. - Case 285/81.



European Court reports 1984 Page 01789



Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

PROCEDURE - REVISION OF A JUDGMENT - CONDITIONS OF ADMISSIBILITY OF AN APPLICATION FOR REVISION - NEW FACT

( PROTOCOLS ON THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC , THE EEC AND THE EAEC , ARTS 38 , 41 AND 42 RESPECTIVELY : RULES OF PROCEDURE , ART . 100 )

Parties

IN CASE 285/81 - REV . I AND REV . II

JEAN-JACQUES GEIST , REPRESENTED BY MARCEL SLUSNY , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , CENTRE LOUVIGNY , 34 B RUE PHILIPPE-II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JORN PIPKORN , ASSISTED BY DANIEL JACOB , OF THE BRUSSELS BAR , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR REVISION OF THE JUDGMENT OF 6 JULY 1983 BY WHICH THE COURT ( THIRD CHAMBER ) DISMISSED THE APPLICATION FOR ANNULMENT OF THE COMMISSION ' S DECISION OF 5 DECEMBER 1980 SUMMONING THE APPLICANT TO RETURN TO THE ISPRA ESTABLISHMENT AND THE DECISION OF 12 JANUARY 1981 SUSPENDING PAYMENT OF HIS SALARY FROM 1 JANUARY 1981 .

Grounds

1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 3 OCTOBER AND 2 DECEMBER 1983 MR GEIST , A SCIENTIFIC OFFICER AT THE JOINT RESEARCH CENTRE AT ISPRA , CLAIMS REVISION OF THE JUDGMENT IN CASE 285/81 OF 6 JULY 1983 BY WHICH THE COURT ( THIRD CHAMBER ) DISMISSED THE ACTION FOR ANNULMENT COMMENCED BY THE APPLICANT ON 3 NOVEMBER 1981 . THE TWO APPLICATIONS SEEK THE REVISION , ON THE ONE HAND , OF PARAGRAPH 12 AND , ON THE OTHER HAND , OF PARAGRAPHS 24 AND 25 OF THE AFORESAID JUDGMENT .

2 THE PROTOCOLS ON THE STATUTE OF THE COURT ( ARTICLE 38 OF THE ECSC STATUTE , ARTICLE 41 OF THE EEC STATUTE AND ARTICLE 42 OF THE EAEC STATUTE ) PROVIDE THAT AN APPLICATION FOR REVISION OF A JUDGMENT MAY BE MADE 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 .

3 ON THE BASIS OF THOSE PROVISIONS AND ARTICLE 100 OF THE RULES OF PROCEDURE , THE COURT MUST FIRST GIVE JUDGMENT IN THE DELIBERATION ROOM ON THE ADMISSIBILITY OF APPLICATIONS FOR REVISION , WITHOUT PREJUDICE TO ITS DECISION ON THE MERITS .

THE CLAIM FOR REVISION OF PARAGRAPH 12 OF THE CONTESTED JUDGMENT

4 THIS CLAIM CONCERNS THE REJECTION OF THE FIRST SUBMISSION BY THE COURT IN PARAGRAPH 12 OF THE CONTESTED JUDGMENT , WHICH READS :

' ' IT MUST BE OBSERVED IN THE FIRST PLACE THAT , CONTRARY TO THE APPLICANT ' S STATEMENTS , THE GROUNDS ON WHICH THE CONTESTED DECISION IS BASED DO NOT INCLUDE THE FACT THAT MR GEIST REFUSED ALL POSTS OFFERED TO HIM . ALTHOUGH THE DIRECTOR GENERAL OF THE JOINT RESEARCH CENTRE POINTED OUT THAT THE APPLICANT HAD REFUSED A FIRST POST , HE SUBSEQUENTLY CONFINED HIMSELF TO OBSERVING THAT THE APPLICANT ' S RESERVATIONS AND HIS RETICENT ATTITUDE HAD LED THE DIRECTOR RESPONSIBLE TO WITHDRAW THE OFFER OF A SECOND POST MADE TO HIM . NEITHER THE DOCUMENTS IN THE FILE NOR THE ARGUMENTS BEFORE THE COURT HAVE SHOWN THOSE OBSERVATIONS TO BE WRONG . THE CONTESTED DECISION CANNOT THEREFORE BE REGARDED AS BASED ON SUBSTANTIALLY INCORRECT FACTS AND THE FIRST SUBMISSIONS MUST THEREFORE BE DISMISSED . ' '

5 IN SUPPORT OF HIS APPLICATION THE APPLICANT CLAIMS THAT SINCE THE CONTESTED JUDGMENT WAS GIVEN HE HAS BECOME AWARE OF DOCUMENTS OF WHICH HE , AND CONSEQUENTLY THE COURT , WERE PREVIOUSLY UNAWARE AND THE CONTENTS OF WHICH PROVE THE VALIDITY OF THE FIRST SUBMISSION PLEADED IN THE ORIGINAL ACTION . THOSE DOCUMENTS , THE CONTENTS OF WHICH WERE REVEALED BY THE MEDIATOR , MR DE GROOTE , WHO WAS HEARD AS A WITNESS ON 20 JUNE 1983 IN THE DISCIPLINARY PROCEEDINGS COMMENCED AGAINST THE APPLICANT IN 1981 , WERE INCLUDED IN A LIST OF DOCUMENTS DRAWN UP ON 27 JUNE 1983 BY THE SECRETARY OF THE DISCIPLINARY BOARD AT THE REQUEST OF THE CHAIRMAN THEREOF .

6 IT MUST BE OBSERVED , IN THE FIRST PLACE , THAT SOME OF THE DOCUMENTS ANNEXED TO THE APPLICATION FOR REVISION WERE ALREADY ANNEXED TO THE APPLICATION MADE ON 3 NOVEMBER 1981 . THOSE DOCUMENTS CANNOT BE TAKEN INTO ACCOUNT BY THE COURT TO ESTABLISH THE VALIDITY OF THE APPLICATION FOR REVISION .

7 IN THE SECOND PLACE , IT MUST BE EMPHASIZED THAT , AMONGST THE OTHER DOCUMENTS PRODUCED IN SUPPORT OF THE APPLICATION FOR REVISION , THE APPLICANT RELIES ABOVE ALL ON TWO DOCUMENTS THE EXISTENCE AND CONTENT OF WHICH HE MENTIONED IN HIS APPLICATION FOR ANNULMENT AND THE DISCOVERY OF WHICH HE ASKED FOR IN THOSE PROCEEDINGS . ONE IS THE LETTER SENT ON 17 MARCH 1980 BY MR DE GROOTE TO MR SCHUSTER , IN ANSWER TO THE LATTER ' S LETTER OF 15 FEBRUARY 1980 , MENTIONING THAT THE APPLICANT HAD EXPRESSED HIS WILLINGNESS TO ACCEPT THE DUTIES ATTACHED TO THE POST CONNECTED WITH FAST REACTOR REPROCESSING IN DIRECTORATE GENERAL XII . THE OTHER DOCUMENT IS A LETTER OF 28 APRIL 1980 IN WHICH MR SCHUSTER TOLD MR DE GROOTE THAT HE HAD DECIDED TO WITHDRAW THE OFFER OF THAT POST , SINCE HE DID NOT WISH TO IMPOSE HIS AUTHORITY IN ORDER TO FORCE THE APPLICANT INTO A DEPARTMENT WHERE HE WAS NOT WANTED .

8 IT IS APPARENT FROM THESE NEW DOCUMENTS , TAKEN AS A WHOLE , THAT IT WAS THE RESERVATIONS AND RETICENCE EXPRESSED BY THE APPLICANT HIMSELF AT THE MEETINGS HE HAD WITH MR SCHUSTER ' S SUBORDINATES IN JANUARY 1980 AND REITERATED IN THE LETTER WHICH HE SENT TO MR SCHUSTER ON 14 FEBRUARY 1980 AND IN THE LETTER WHICH HE SENT TO THE MEDIATOR , MR DE GROOTE , ON 9 MARCH 1980 WHICH LED MR SCHUSTER IN HIS CAPACITY AS THE DIRECTOR RESPONSIBLE FOR THE DEPARTMENT IN QUESTION TO CONSIDER THAT THE ASSIGNMENT OF MR GEIST TO THE AFORESAID POST WOULD NOT BE IN THE INTERESTS OF THE SERVICE .

9 IN THOSE CIRCUMSTANCES THE DOCUMENTS IN QUESTION COULD NOT HAVE HAD A DECISIVE EFFECT ON THE OUTCOME OF THE CASE .

10 IT FOLLOWS THAT THE CLAIM FOR REVISION OF PARAGRAPH 12 OF THE CONTESTED JUDGMENT IS NOT ADMISSIBLE AND MUST BE DISMISSED .

THE CLAIM FOR REVISION OF PARAGRAPHS 24 AND 25 OF THE CONTESTED JUDGMENT

11 THIS CLAIM CONCERNS THE REJECTION OF THE APPLICANT ' S SUBMISSION , PLEADED IN SUPPORT OF HIS CLAIM FOR ANNULMENT , THAT THE COMMISSION COULD NOT LAWFULLY FIND THAT HIS ABSENCE WAS UNAUTHORIZED , SINCE HE HAD PRODUCED MEDICAL CERTIFICATES PROVING THAT HIS HEALTH DID NOT ALLOW HIM TO RETURN TO WORK AT ISPRA . IN PARTICULAR , HE HAD PRODUCED A CERTIFICATE FROM HIS OWN DOCTOR WHICH BORE THE DATE OF 14 DECEMBER 1980 AND WAS THEREFORE ISSUED AFTER THE REPORT MADE BY DR DE GEYTER ON 15 NOVEMBER 1980 .

12 IN SUPPORT OF HIS CLAIM , THE APPLICANT PRODUCES THE WHOLE OF DR DE GEYTER ' S REPORT OF 15 NOVEMBER 1980 , WHICH , IN VIEW OF THE REQUIREMENTS OF MEDICAL SECRECY , HAD BEEN ONLY PARTLY PRODUCED BY THE COMMISSION . THE APPLICANT STATES THAT ' ' IT IS NOT CLEAR THAT THE COURT HAD KNOWLEDGE OF THE WHOLE OF THE REPORT ' ' AND THAT IF THAT HAD BEEN THE CASE IT WOULD ' ' HAVE TAKEN ANOTHER VIEW OF THE EFFECT OF THE REPORT ' ' .

13 IT SUFFICES TO OBSERVE THAT THE FULL REPORT BY DR DE GEYTER WAS LODGED WITH THE COURT BY THE APPLICANT HIMSELF AT THE HEARING AND THAT CONSEQUENTLY THE DOCUMENT WAS KNOWN BOTH TO THE COURT AND TO THE APPLICANT BEFORE THE JUDGMENT WAS GIVEN . IT CANNOT THEREFORE BE REGARDED AS A FACT OF SUCH NATURE AS TO JUSTIFY AN APPLICATION FOR REVISION .

14 IN VIEW OF THE FOREGOING , THE CLAIM FOR REVISION OF PARAGRAPHS 24 AND 25 OF THE CONTESTED JUDGMENT MUST ALSO BE DISMISSED .

Decision on costs

COSTS

15 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

16 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE COSTS INCURRED BY THE INSTITUTIONS IN PROCEEDINGS BROUGHT BY OFFICIALS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS THEMSELVES .

Operative part

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY

1 . DISMISSES THE APPLICATION FOR REVISION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .