JUDGMENT OF THE COURT (Second Chamber)
2 April 2009 (*)
(Procedure – Application for revision – Application relating to an order made pursuant to Article 119 of the Rules of Procedure – Conditions – Appeal – New fact – Inadmissibility)
In Case C-255/06 P-REV,
Yedaş Tarim ve Otomotiv Sanayi ve Ticaret AŞ, established in Ümraniye Istanbul (Turkey), represented by R. Sinner, avocat, with an address for service in Luxembourg,
applicant for revision,
APPLICATION for revision of the order of the Court of Justice of 5 July 2007 in Case C-255/06 P Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission,
the other parties to the proceedings being:
Council of the European Union, represented by M. Bishop and D. Canga Fano, acting as Agents,
Commission of the European Communities, represented by X. Lewis, acting as Agent, with an address for service in Luxembourg,
THE COURT (Second Chamber),
composed of C.W.A. Timmermans (Rapporteur), President of the Chamber, K. Schiemann, J. Makarczyk, L. Bay Larsen and C. Toader, Judges,
Advocate General: J. Mazák,
Registrar: R. Grass,
after hearing the Advocate General,
gives the following
1 By application lodged at the Court Registry on 20 March 2008, Yedaş Tarim ve Otomotiv Sanayi ve Ticaret AŞ (‘Yedaş Tarim’) applied, pursuant to Article 44 of the Statute of the Court of Justice, for revision of the order of 5 July 2007 in Case C-255/06 P Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission (‘the contested order’).
2 By that order, the Court, pursuant to Article 119 of its Rules of Procedure, dismissed as in part clearly inadmissible and in part clearly unfounded the appeal brought by the applicant against the judgment of the Court of First Instance of the European Communities in Case T‑367/03 Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission  ECR II‑873.
3 That appeal was brought against the judgment by which the Court of First Instance dismissed the action brought by Yedaş Tarim for compensation for damage allegedly caused by the implementation of the procedures of the Customs Union instituted by the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 by the Republic of Turkey of the one part and the Community and its Member States of the other part, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (‘the Association Agreement’, OJ 1973 C 113, p. 1) and its Additional Protocols and by Decision 1/95 of the EC-Turkey Association Council of 22 December 1995 on implementing the final phase of the Customs Union (OJ 1996 L 35, p. 1).
4 More specifically, Yedaş Tarim, a company established under Turkish law whose activities consist of importing and manufacturing ball bearings and importing housings and belts, claimed that, following the entry into force of the Customs Union between the European Community and the Republic of Turkey and, consequently, the abolition of all customs duties, taxes and other charges relating to the import of ball bearings and housings, the increase in imports to Turkey resulting from it had a negative effect on the latter’s importing and manufacturing activities which caused it financial losses between 1996 and 2003.
5 In the contested order, the Court held that the Court of First Instance did not err in law, first, by taking the view that the provisions of the Association Agreement and, in particular, Articles 2(1), 3(1) and 6 of that agreement, constituted provisions that were programmatic in nature and did not have direct effect and, secondly, in not accepting as the applicant’s representative a lawyer who is a member of the Bar of a non-member country, namely the Republic of Turkey. Equally, the Court of First Instance did not commit an error of law, thirdly, in rightly dismissing the argument effectively submitted by the applicant that the Community incurred liability by its failure to take action against the Hellenic Republic regarding the position which the latter had adopted with regard to the financial aid to be granted to the Republic of Turkey and by holding, accordingly, that failure to bring an action for failure to fulfil obligations under Article 226 EC did not constitute unlawfulness and consequently could not give rise to non-contractual liability on the part of the Community. Fourthly, the Court of First Instance did not commit an error of law in pointing out that a direct causal link is required between the unlawful conduct and the loss relied upon and that the applicant must adduce evidence of such a direct link.
The application for revision
6 Yedaş Tarim claims that the Court should:
– declare the application for revision of the contested order admissible and set a date for a hearing;
– grant the application for revision of the contested order pursuant to Article 98 of the Rules of Procedure of the Court;
– order the defendants to pay the costs.
7 The Council of the European Union contends that the Court should:
– dismiss the application for revision as inadmissible, or, in the alternative, as unfounded;
– order the applicant to pay the costs, including those of the Council.
8 The Commission of the European Communities contends that the Court should:
– dismiss the application for revision;
– order the applicant to pay the costs.
Arguments of the parties
9 In support of its application, Yedaş Tarim pleads that there are two facts that could not have been known at the time the contested order was made and which it accordingly classifies as new. According to Yedaş Tarim, those new facts provide a justification for the revision of the contested order because they are of such a nature as to be a decisive factor in the case.
10 First, the applicant refers to a declaration made by the Hellenic Republic before its accession to the Communities that no prejudice or harm would come to the Republic of Turkey from Greek membership, whether in fact or law. Furthermore, the applicant refers to the minutes of a meeting of the Council of the European Economic Community held in Luxembourg on 24 June 1975, according to which the accession of the Hellenic Republic would not affect relations between the Community and the Republic of Turkey or the rights under the Association Agreement. Despite those documents, the Hellenic Republic nevertheless chose to veto financial aid which the Community proposed to give to Turkey. The applicant declares that it was not able to obtain a copy of the said declaration and that its request for a copy submitted on the basis of the Turkish Right to Information Act was rejected, on 28 December 2007, because of the confidential nature of the document.
11 Second, the applicant appears to take the view that the Court’s judgment in Case 30/88 Greece v Commission  ECR 3711, by which the Court dismissed the action brought on 27 January 1988 by the Hellenic Republic against the Commission for the annulment of three Commission decisions concerning financing projects as special aid for the Republic of Turkey, taken within the framework of Decision No 2/80 of the EEC-Turkey Association Council, constitutes a new fact.
12 In addition to those two facts, the applicant submits several arguments against the contested order concerning, in particular, respect for its right to a fair trial as guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, the statement of reasons of the contested order, compliance with the principle of protection of legitimate expectations and the assessment of a causal link between the alleged harmful act and the loss suffered.
13 The Council and the Commission contend that the application for revision clearly does not fulfil the requirements of Article 44 of the Statute of the Court of Justice. They assert that, even if they were unknown to the applicant before the contested order was made, those allegedly ‘new’ facts submitted by the applicant could not in any event have been a decisive factor for the outcome of the procedure. In addition, the application does not specify the date on which those new facts were discovered, which makes it impossible to verify whether the three-month period laid down in Article 98 of the Rules of Procedure within which an application for revision must be made, starting on the date on which the facts on which the application is based came to the applicant’s knowledge, was complied with. Moreover, the Council points out that the application does not meet the minimum criteria of coherence, intelligibility and unambiguity. Consequently, the Council and the Commission conclude that the application for revision should be dismissed as inadmissible, in accordance with Article 100 of the Rules of Procedure.
Findings of the Court
14 In order to assess the admissibility of the application for revision, it must be recalled that, in accordance with Article 44 of the Statute of the Court of Justice, 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.
15 Even though the wording of Article 44 of the Statute of the Court of Justice does not expressly provide that an order may be the subject of an application for revision, it must be stated that an order which dismisses an appeal as in part clearly inadmissible and in part clearly unfounded, pursuant to Article 119 of the Rules of Procedure, produces the same effects as would a judgment dismissing an appeal as in part inadmissible and in part unfounded. Accordingly, in the event of the discovery of a new and decisive fact, an application for revision may be brought against such an order (see, to that effect, Joined Cases C‑199/94 P and C‑200/94 P-REV Inpesca v Commission  ECR I‑831, paragraph 16).
16 According to consistent case-law, revision is not an appeal procedure but an exceptional review procedure that allows the authority of res judicata attaching to a final judgment or to an order made pursuant to Article 119 of the Rules of Procedure to be called into question on the basis of the findings of fact relied upon by the Court. Revision presupposes the discovery of elements of a factual nature which existed prior to the judgment or the order and which were unknown at that time to the Court which delivered the judgment or the order as well as to the party applying for revision and which, had the Court been able to take them into consideration, could have led it to a different determination of the proceedings (see, in particular, Case C‑130/91 REV ISAE/VP and Interdata v Commission  ECR I-407, paragraph 6, and judgment of 29 November 2007 in Case C‑12/05 P-REV Meister v OHIM, paragraph 16 and the case-law cited).
17 In the light of the exceptional nature of the revision procedure, the conditions governing the admissibility of an application for revision of a judgment or of an order made in accordance with Article 119 of the Rules of Procedure are to be interpreted strictly.
18 As regards the first fact relied on by the applicant, referred to in paragraph 10 of the present judgment, even if the applicant only became aware of the existence of the unilateral declaration by the Hellenic Republic before its accession to the Communities and of the minutes of the Council meeting of 24 June 1975 after the contested order was made, those documents would not have affected the interpretation of the Association Agreement in that order, according to which the provisions of Articles 2(1), 3(1) and 6 of that agreement are not sufficiently precise and unconditional and, for that reason, constitute provisions which are programmatic in nature.
19 The documents to which the applicant refers are essentially of a political nature and cannot constitute an independent source of rights or obligations. The case-law shows that neither individual statements of position nor joint declarations of the Member States may be used for the purpose of interpreting a provision where their content is not reflected in its wording, and they therefore have no legal significance (see, in particular, Joined Cases C‑197/94 and C‑252/94 Bautiaa and Société française maritime  ECR I‑505, paragraph 51, and Case C‑233/97 KappAhl  ECR I‑8069, paragraph 23).
20 As regards the second fact identified by the applicant and referred to in paragraph 11 of the present judgment, it is clear that a judgment of the Court of Justice, which has moreover been published in the Reports of Cases before the Court of Justice and the Court of First Instance, cannot be considered to be unknown to the Court and to the applicant. Accordingly, that judgment cannot constitute a new fact.
21 It follows that, in the light of the nature of the two facts cited by the applicant, the conditions which an application for revision must fulfil in order to be granted, which are recalled in paragraph 16 of this judgment, are not satisfied.
22 In addition, it is apparent from Article 99(1)(b) and (d) of the Rules of Procedure that an application for revision must indicate, on the one hand, the points on which the order is contested and, on the other hand, the nature of the evidence to show that there are facts justifying revision of the judgment, and that the time-limit laid down in Article 98 of the Rules of Procedure has been observed. According to the latter provision, an application for revision of a judgment is to be made within three months of the date on which the facts on which the application is based came to the applicant’s knowledge.
23 In this respect, the Court finds that the applicant has not established any link between the facts relied on and the points on which the order is contested. As the Council has pointed out, the entire application for revision lacks coherence and precision, both of which are required by Article 99 of the Rules of Procedure in conjunction with Article 38 of those rules (see, to that effect, Case C‑195/04 Commission v Finland  ECR I-3351, paragraph 22, and Case C‑412/04 Commission v Italy  ECR I-619, paragraph 103).
24 Moreover, the application for revision does not indicate when the facts relied on were discovered, so that it is not possible to ascertain whether the application was brought within the time-limit laid down by Article 98 of the Rules of Procedure.
25 As regards the criticism expressed in the application for revision in respect of the dismissal, by way of the contested order, of the appeal brought by the applicant against the judgment in Case T-367/03 Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission, the Court reiterates that, as stated in paragraph 16 of the present judgment, the revision procedure is not an appeal procedure but an exceptional review procedure. The complaints made in that regard in the application for revision therefore clearly fall outside the scope of a revision procedure.
26 Under those circumstances, in accordance with Article 100(1) of the Rules of Procedure, the present application for revision must be dismissed as inadmissible.
27 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council and the Commission have applied for costs and the applicant has been unsuccessful, it must be ordered to pay the costs.
On those grounds, the Court (Second Chamber) hereby:
1. Dismisses the application for revision brought by Yedaș Tarim ve Otomotiv Sanayi ve Ticaret AŞ;
2. Orders Yedaș Tarim ve Otomotiv Sanayi ve Ticaret AŞ to pay the costs.
* Language of the case: English.