JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

20 September 2011





Case F-45/06 REV





Sandrine De Buggenoms and Others

v

European Commission

(Civil service – Procedure – Application for revision – Article 119 of the Rules of Procedure of the Tribunal – Decision of the Tribunal – Application for revision relating to an order removing a case from the register following an application to discontinue the proceedings – Res judicata – None – Inadmissibility raised of the Tribunal’s own motion)

Application: for revision of the Order of the President of the First Chamber of the Tribunal of 16 September 2010 removing Case F-45/06 Avendano and Others v Commission from the register.

Held: The application for revision is dismissed as inadmissible. The applicants for revision are ordered to pay the Commission’s costs. The Council, intervener in revision, is ordered to bear its own costs.

Summary

1. Procedure – Revision of a judgment – Application relating to an order removing a case from the register following the applicant’s discontinuance of the proceedings – Inadmissibility

(Statute of the Court of Justice, Art. 44 and Annex I, Art. 7; Rules of Procedure of the Civil Service Tribunal, Arts 74, 89(5) and 119)

2. Procedure – Representation of the parties – Authority to act in the proceedings – Production of authority not required

(Rules of Procedure of the Civil Service Tribunal, Arts 35(5), 39(1)(3) and 74)

3. European Union law – Principles – Right to effective judicial protection – Scope

(Art. 6(1) TEU; Charter of Fundamental Rights of the European Union, Arts 47 and 52(7))

1. Since a reasoned order to the effect that there is no need to adjudicate on a case or terminating a proceeding, on the ground that the EU Courts lack jurisdiction or because the application was inadmissible or manifestly unfounded, produces effects analogous to those of a judgment, an application for revision pursuant to Article 44 of the Statute of the Court of Justice, applicable to the Civil Service Tribunal pursuant to Article 7 of Annex I to that Statute, may be brought against such an order, although the wording of Article 44 does not expressly provide for such an application. Likewise, the wording of Article 119 of the Rules of Procedure of the Civil Service Tribunal does not limit an application for revision to judgments of the Tribunal but provides that application may be made for revision of a decision of the Tribunal.

However, although the wording of Article 119 refers, without distinguishing between judgments and orders, to any decision of the Tribunal as amenable to an application for revision, the fact remains that, in the EU judicial system, revision is not an appeal but an extraordinary remedy which enables the res judicata attached to a judgment or order which has become final to be challenged.

In that regard, in so far as an order made under Article 74 of the Rules of Procedure of the Civil Service Tribunal for a case to be removed from the register does not settle either the admissibility or the substance of the case, it does not acquire res judicata and cannot therefore be equated to a reasoned order which produces effects analogous to those of a judgment. Where, under Article 74, the President of the Tribunal decides, by order, that a case is to be removed from the register of the Tribunal, he merely takes note of the applicant’s intention to discontinue the proceedings. In such an order, the only provisions that affect the parties to the case are those whereby the President of the Tribunal makes an order as to costs, in accordance with Article 89(5) of the Rules of Procedure.

(see paras 31-33, 35, 36, 38, 39, 41)

See:

7 March 1995, C-130/91 REV ISAE/VP and Interdata v Commission, para. 6; 29 November 2007, C-12/05 P-REV Meister v OHIM, para. 16; 5 March 1998, C-199/94 P and C-200/94 P-REV Inpesca v Commission, para. 16; 2 April 2009, C-255/06 P-REV Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission, paras 15 to 17

2. Under Article 35(5) and the third subparagraph of Article 39(1) of the Rules of Procedure of the Civil Service Tribunal, the only requirement to be satisfied by the lawyer acting for or representing a party is to demonstrate that he is authorised to practise as a lawyer; he is not required to produce an authority to act unless it is necessary in order to prove that he is authorised to practise in the event of a dispute. Therefore, since the lawyer is not required, in principle, to provide formal evidence that he has his client’s authority either in order to bring the action or in order to inform the Tribunal that his client intends to discontinue the proceedings, as his client’s decision may, under Article 74 of the Rules of Procedure, be communicated to the Tribunal even orally at the hearing, the existence and also the extent, or indeed the withdrawal, of authority to act between a lawyer and his client are, except in the case of a dispute, questions which the Tribunal is not required to examine.

(see paras 45, 46)

See:

16 February 1965, 14/64 Barge v High Authority

26 September 1990, T-139/89 Virgili-Schettini v Parliament

3. As regards the right to an effective remedy, it follows from the explanations relating to Article 47 of the Charter of Fundamental Rights, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, must be taken into consideration in the interpretation of the Charter, that the second paragraph of that article corresponds to Article 6(1) of the European Convention on Human Rights, although in EU law the right to a tribunal applies not only to the determination of civil rights and obligations. The first paragraph of Article 47 of the Charter of Fundamental Rights is based on Article 13 of the European Convention on Human Rights, although the protection afforded is wider in EU law, since it guarantees a right to an effective remedy before a tribunal and not only an effective remedy before a national authority. The right to an effective remedy within the meaning of the first paragraph of Article 47 of the Charter of Fundamental Rights is not limited to the protection of fundamental rights but also includes the protection of all rights and freedoms guaranteed by EU law.

(see para. 53)