Judgment of the Court (Second Chamber) of 19 March 1991. - Jean-François Ferrandi v Commission of the European Communities. - Officials - Disciplinary measures - Revision of a judgment. - Case C-403/85 REV.



European Court reports 1991 Page I-01215



Parties

Grounds

Decision on costs

Operative part



Keywords

++++

Procedure - Revision of a judgment - Period for lodging an application - Starting point - Awareness of the new fact - Application out of time - Inadmissibility

(Statute of the Court of Justice of the EEC, Art. 41; Rules of Procedure, Art. 98)

Parties

In Case C-403/85 rev.,

Jean-François Ferrandi, a former official of the Commission of the European Communities, residing at Ajaccio, represented by François Jongen, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of A. Wildgen, 6 rue Zithe,

applicant for revision,

v

Commission of the European Communities, represented by Hendrik Van Lier, Legal Adviser, acting as Agent, assisted by Claude Verbraeken and Denis Waelbroek, of the Brussels Bar, with an address for service in Luxembourg at the office of Guido Berardis, a member of the Commission' s Legal Department, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the revision of the judgment of the Court of Justice (Second Chamber) of 5 February 1987 in Case 403/85 F. v Commission of the European Communities [1987] ECR 645,

THE COURT (Second Chamber)

composed of T. F. O' Higgins, President of the Chamber, G. F. Mancini and F. A. Schockweiler, Judges,

Advocate General: J. Mischo

Registrar: J.-G. Giraud

having regard to the parties' written observations,

having regard to the report of the Judge-Rapporteur,

having heard the views of the Advocate General in the Deliberation Room,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry on 28 December 1990, Jean-François Ferrandi, a former official of the Commission of the European Communities, applied, pursuant to Article 41 of the Statute of the Court of Justice of the EEC, for the revision of the judgment of the Court (Second Chamber) of 5 February 1987 in Case 403/85 F. v Commission of the European Communities [1987] ECR 645.

2 In that judgment the Court dismissed an action brought by the applicant for the annulment of the decision adopted by the Commission on 6 May 1985 following disciplinary proceedings brought against him for assaulting Mr Morel, Director-General for Personnel and Administration at the Commission, on 6 October 1982 in which the penalty of removal from his post was imposed.

3 That judgment states, inter alia, as follows: "it has not been established that as regards the summary of the facts the statement of reasons for the decision is vitiated by unjustified errors or omissions" (paragraph 16); "it ... does not appear to the Court that the Commission committed a manifest error in taking the view that notwithstanding the applicant' s impulsive nature, he 'exceeded the bounds of acceptable conduct on the part of a responsible official in the performance of his duties' " (paragraph 22); "it does not appear to the Court that the Commission committed a manifest error in not accepting that the applicant' s situation at the time was a mitigating circumstance preventing his removal from his post" (paragraph 23); "the Court does not consider that the removal of the applicant from his post without any reduction or withdrawal of his pension rights can be regarded as a manifestly disproportionate penalty".

4 The applicant claims that the Court should:

(i) declare the application admissible and, after further consideration of the substance, declare it well-founded;

(ii) vary the Court' s judgment of 5 February 1987 in so far as it rejects the whole of the action brought by the applicant against the Commission' s decision of 6 May 1985 and declares unfounded the pleas in law to the effect that the contested decision was erroneous and inadequate and also in breach of the principle of proportionality;

(iii) consequently, declare admissible and well-founded the pleas in law to the effect that the decision at issue was erroneous and inadequate and in breach of the principle of proportionality and annul the Commission' s decision of 6 May 1985 imposing on the applicant the penalty of removal from his post without any reduction or withdrawal of his pension rights;

(iv) order the defendant to pay the whole of the costs.

5 In its observations, the Commission claims that the Court should:

(i) declare the application for revision inadmissible;

(ii) order the applicant to pay the costs.

6 The first paragraph of Article 41 of the Statute of the Court of Justice of the EEC provides 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".

7 Article 100(1) of the Rules of Procedure provides that, without prejudice to its decision on the merits, the Court, sitting in the Deliberation Room, after hearing the Advocate General and having regard to the written observations of the parties, is to give in the form of a judgment its decision on the admissibility of the application. These proceedings have taken place in accordance with that provision.

8 According to the applicant, the new fact of a decisive nature warranting the revision of the contested judgment is the judgment given on 26 September 1990 by the Court of First Instance (Case T-122/89 F. v Commission [1990] ECR II-517) relating to the degree of his permanent invalidity which is attributable to his occupation. In that judgment, the Court of First Instance annulled the Commission' s decision of 15 July 1988 in so far as it fixed the applicant' s degree of permanent invalidity at 50%.

9 The applicant cites in particular the passages of the judgment of 26 September 1990 in which the Court of First Instance refers to the opinion given on 26 May 1988 by a Medical Committee consisting of three doctors - one designated by the Appointing Authority, one by the official and one by agreement between the first two doctors - and to the findings made by Professor De Buck in his expert' s report of 11 February 1987. The applicant points out that, having regard to that opinion and expert' s report, the Court of First Instance held in paragraph 16 of its judgment that the Commission "wrongly interpreted the medical opinion by considering only the relationship between the ... incapacity at issue and the events of 6 October 1982 and not taking into account the relationship clearly established by the medical report between that incident and the pre-existing disorder which the aforementioned report established resulted from the applicant' s occupation" and "the fact that [the applicant' s] conduct during the incident of 6 October 1982 was in breach of the Staff Regulations does not call into question the relationship between that incident and the applicant' s pre-existing psychopathic condition". In the applicant' s view, it is therefore clear from the judgment of the Court of First Instance that the origin of the incident of 6 October 1982 lay in a pre-existing medical condition which was unknown both to the Court of Justice and to the applicant on 5 February 1987 when the judgment against which these proceedings have been brought was given.

10 The Commission considers that the application for revision is inadmissible. It points out in the first place that the judgment of the Court of First Instance was concerned solely with the recognition as an occupational disease of a degree of invalidity attributable to the incident of 6 October 1982, and that the findings made in that connection do not imply that the applicant was not responsible for his actions at that date. In the second place, if there were a new fact it would stem not from the judgment of the Court of First Instance but from Professor De Buck' s expert' s report of 11 February 1987 or from the Medical Committee' s opinion of 26 May 1988, and as a result the application for revision would be manifestly out of time, and hence inadmissible, since it was not made within three months from those dates. Thirdly and lastly, the Commission considers that if it were held that a mere expert opinion could constitute a new fact justifying the revision of a judgment, it would seriously undermine legal certainty and the authority of res judicata.

11 In order to assess the admissibility of the application, it must be borne in mind that, according to Article 98 of the Rules of Procedure, an application for revision of a judgment must be made within three months of the date on which the applicant receives knowledge of the facts on which the application is based.

12 Consequently, without it being necessary to consider the other objections made by the Commission against this application, it is sufficient to observe that the only facts capable of being raised by the applicant which might possibly be described as new and justify the application for the revision of the judgment of 5 February 1987 are the medical findings contained in Professor De Buck' s expert' s report of 11 February 1987 or in the Medical Committee' s opinion of 26 May 1988, and that the application for revision was lodged well after three months from the date when the applicant received knowledge of those documents. Indeed, that date could not in any event have been later than 5 July 1989, the date on which the applicant lodged those documents at the Registry of the Court of Justice as annexes to the application which gave rise to the judgment of the Court of First Instance of 26 September 1990.

13 Whilst the judgment of the Court of First Instance of 26 September 1990 did indeed give a legal assessment of the facts of a medical nature relied on by the applicant, that judgment itself is not capable of constituting a new fact which could have had any bearing whatsoever on the manner in which the Court of Justice, in its judgment of 5 February 1987, assessed the applicant' s responsibility on the occasion of the incident of 6 October 1982. Even accepting the applicant' s argument that the Court of First Instance' s assessment in its judgment of 26 September 1990 is such that he must be held not to have been responsible for his actions at the time of the events of 6 October 1982, the Court of Justice itself could have ruled on this point in the light of the new facts which the expert' s report of 11 February 1987 or the Medical Committee' s opinion of 26 May 1988 might possibly have constituted in the context of an application for revision brought within three months of the date on which the applicant received knowledge of those documents.

14 It follows from the foregoing that the application lodged at the Registry of the Court of Justice on 28 December 1988 was out of time and that the application must be dismissed as inadmissible.

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. However, Article 70 of those Rules provides that institutions are to bear their own costs in proceedings brought by servants of the Communities.

Operative part

On those grounds,

THE COURT (Second Chamber)

hereby:

(1) Dismisses the application for revision as inadmissible;

(2) Orders the parties to bear their own costs.