61989B0106(01)

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Procedure ° Revision of an order terminating proceedings ° Criteria for the admissibility of the application ° New fact ° Fact of such a nature as to be a decisive factor ° No new fact ° Inadmissible

(EEC Statute of the Court of Justice, Arts 41 and 46)

Under the first paragraph of Article 41 of the EEC Statute of the Court of Justice, declared applicable to proceedings before the Court of First Instance by the first paragraph of Article 46 thereof, revision is not an appeal procedure but an exceptional review procedure enabling the authority attaching to a final judgment on the basis of the findings of fact relied upon by the Court to be called in question. Revision presupposes the discovery of elements of a factual nature which existed prior to the judgment and were unknown at that time to the court which delivered it 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 decide the case differently.

Thus, an application for revision of an order by the Court of First Instance dismissing an action for annulment as inadmissible for being out of time is itself inadmissible, where the application for revision pleads a subsequent declaration by the Court of First Instance that the contested decision is non-existent and that, on the basis of this new fact, an action may be brought against it irrespective of any time-limit, in a situation where the Court on appeal has declared that the contested decision is not non-existent.

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In Case T-106/89 REV,

Norsk Hydro A/S, a company incorporated according to Norwegian law established in Oslo, represented by Jochen Burrichter, of the Duesseldorf Bar, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

applicant,

v

Commission of the European Communities, represented by Julian Currall, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for revision of the order of the Court of First Instance of 19 June 1990 (T-106/89 Norsk Hydro v Commission, not published in the Reports of Cases),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Second Chamber),

composed of: J.L. Cruz Vilaça, President, C.P. Briët, D.P.M. Barrington, A. Saggio and J. Biancarelli, Judges,

Registrar: H. Jung,

makes the following

Order

1 The applicant company, Norsk Hydro A/S, is one of the 14 undertakings concerned by Commission Decision 89/190/EEC of 21 December 1988 relating to a proceeding pursuant to Article 85 of the EEC Treaty (IV/31.865, PVC, OJ 1989 L 74, p. 1, hereinafter the "Commission Decision"). In the Commission Decision a fine of ECU 750 000 was imposed on the applicant undertaking.

2 By an application dated 25 April 1989 Norsk Hydro claimed that the Court should:

(i) declare the Commission Decision null and void for infringement of essential procedural requirements, in so far as it concerns the applicant;

(ii) annul the Commission Decision, in so far as it concerns the applicant;

(iii) in the alternative, substantially reduce the amount of the fine;

(iv) order the Commission to pay the costs.

3 By an order dated 19 June 1990 (T-106/89 Norsk Hydro v Commission, not published in the Reports of Cases), the Court of First Instance, ruling on an objection of inadmissibility raised by the Commission, dismissed the application as being out of time and therefore inadmissible. The applicant withdrew its appeal against that order. The case was struck from the Court Register by order of 16 January 1991.

4 By a judgment of 27 February 1992 in Joined Cases T-79/89, T-84/89, T-85/89, T-86/89, T-89/89, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, T-102/89 and T-104/89 BASF and Others v Commission [1992] ECR II-315, brought by 12 of the 13 other undertakings concerned by the Commission Decision, the Court of First Instance declared:

"1. The measure notified to the applicants, published in the Official Journal of the European Communities L 74 of 17 March 1989 (p. 1) and entitled 'Commission Decision 89/190/EEC of 21 December 1988 relating to a proceeding pursuant to Article 85 of the EEC Treaty (IV/31.865, PVC)' is non-existent;

2. The applications are dismissed as inadmissible;

3. The Commission is ordered to pay the costs."

5 By an application lodged at the Court Registry on 29 April 1992 under number C-137/92 P, the Commission brought an appeal against the judgment of the Court of First Instance.

6 By an application lodged at the Registry of the Court of First Instance on 26 May 1992, Norsk Hydro sought revision of the abovementioned order of the Court of First Instance of 19 June 1990. On 12 June 1992 the Commission submitted its written observations on the application for revision.

7 By an order dated 6 December 1992 the Court of First Instance (Second Chamber) suspended proceedings pending delivery of the judgment in Case C-137/92 P mentioned above.

8 By a judgment dated 15 June 1994 in Case C-137/92 P Commission v BASF and Others [1994] ECR I-0000, the Court censured the declaration by the Court of First Instance of the non-existence of the Commission Decision (see paragraphs 48 to 53 of the judgment) and

"1. Set aside the judgment of the Court of First Instance delivered on 27 February 1992 in Cases T-79/89, T-84/89, T-85/89, T-86/89, T-89/89, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, T-102/89 and T-104/89;

2. Annulled Commission Decision 89/190/EEC of 21 December 1988 relating to a proceeding pursuant to Article 85 of the EEC Treaty (IV/31.865 PVC);

3. Ordered the Commission to bear its own costs and to pay the whole of the costs incurred by the respondents, both in the proceedings before the Court of First Instance and in the proceedings before the Court of Justice."

9 By an application lodged at the Registry of the Court of First Instance on 26 May 1992, the applicant contended that the Court of First Instance should:

(i) declare the application for revision admissible;

(ii) set aside the order of the Court of First Instance of 19 June 1990;

(iii) proceed to consider the merits of the application lodged by the applicant on 24 April 1989;

(iv) declare the measure notified to the applicant, published in the Official Journal of the European Communities (L 74 of 17 March 1989, p. 1) and entitled "Commission Decision 89/190/EEC of 21 December 1988 relating to a proceeding pursuant to Article 85 of the EEC Treaty (IV/31.865, PVC)" to be non-existent;

(v) order the defendant to pay the costs.

10 In its written observations in response, lodged at the Registry of the Court of First Instance on 17 June 1992, the Commission contended that the Court of First Instance should:

(i) declare the application for revision inadmissible;

(ii) in the alternative, declare the application unfounded;

(iii) order the applicant to bear the costs of this application in any event.

11 Under the first and second paragraphs of Article 41 of the EEC Statute of the Court of Justice, stated to be applicable to the procedure before the Court of First Instance by the first paragraph of Article 46 thereof:

"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 revision shall be opened by a judgment of the Court expressly recording the existence of a new fact, recognizing that it is of such a nature as to lay the case open to revision and declaring the application admissible on this ground."

12 These provisions are complemented by Articles 125 to 128 of the Rules of Procedure of the Court of First Instance. Under Article 126(1)(d) the application for revision must "indicate the nature of the evidence to show that there are facts justifying revision ...". Article 127(2) provides that "without prejudice to its decision on the substance, the Court of First Instance shall, after hearing the Advocate General, having regard to the written observations of the parties, give its decision on the admissibility of the application".

13 In accordance with the abovementioned provisions of the Statute and Rules of Procedure, the Court of First Instance must therefore examine the admissibility of the application by Norsk Hydro for revision of the order of 19 June 1990.

14 According to the Court' s settled case-law, revision is not an appeal procedure but an exceptional review procedure that allows an applicant to call in question the authority attaching to a final judgment 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 and which were unknown at that time to the court which delivered it 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 order in Case C-185/90 P-REV Gill v Commission [1992] ECR I-993 and order of the Court of First Instance in Case T-4/89 REV BASF v Commission [1992] ECR II-1591).

15 The applicant for revision maintains that, since the Commission Decision was held to be non-existent by the Court of First Instance in BASF and Others v Commission (Joined Cases T-79/89 etc.), cited above, proceedings for annulment lay against it irrespective of any time-limit. Therefore, the abovementioned order of 19 June 1990 in which the Court of First Instance dismissed its application as inadmissible because it was out of time, failed to take account of the procedural irregularities affecting the adoption of the Commission Decision. Those defects are said both to constitute a fact "of such a nature as to be a decisive factor" within the meaning of the first paragraph of Article 41 of the Statute, and to have been unknown to the Court of First Instance and to the applicant when the order was made on 19 June 1990.

16 It is clear from the judgment in Case C-137/92 P Commission v BASF and Others, cited above, that the Commission Decision was not non-existent as from its adoption on 21 December 1988.

17 Under those circumstances the applicant for revision cannot purport to plead that the non-existence of the Commission Decision constitutes a new fact of such a nature as to be a decisive factor on the operative part of the order whose revision is sought; nor may it do so in order to claim that it is authorized to institute annulment proceedings against the Commission Decision irrespective of any time-limit.

18 Accordingly, the Court of First Instance finds that the applicant for revision has not proved the existence of any fact of such a nature as to warrant revision of the order of the Court of First Instance of 19 June 1990. Therefore, the application for revision cannot but be dismissed as inadmissible.

Costs

19 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if the successful party has applied for them. Since the applicant has failed in its submissions, it must be ordered to pay the costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Second Chamber)

hereby:

1. Dismisses the application for revision as inadmissible;

2. Orders the applicant for revision to pay the costs.

Luxembourg, 1 July 1994.