CJEC, 6th chamber, March 18, 1999, No C-2/98 P

THE COURT (Sixth Chamber),

1. By an application filed with the Registry of the Court of Justice on 7 January 1998, Mr de Compte brought an appeal under Article 49 of the EC Statute of the Court of Justice and the corresponding provisions of the ECSC and EAEC Statutes, against the judgment of the Court of First Instance in Case T-26-89 (125) De Compte v Parliament [1997] ECR-SC I-A-305 and II-847, hereinafter 'the contested judgment, in which the Court of First Instance rejected his application for revision of the judgment of the Court of First Instance of 17 October 1991 in Case T-26-89 De Compte v Parliament [1991] ECR II-781, hereinafter 'the judgment of 17 October 1991.

Facts

2. The facts as they appear in the contested judgment can be summarised as follows.

3. Mr de Compte is a former official of the European Parliament in retirement. While serving as an accounting officer with that institution, he was the subject of disciplinary proceedings, on completion of which the appointing authority imposed on him, by decision of 18 January 1988, the penalty of downgrading from Grade A 3 to Grade A 7.

4. By judgment of 17 October 1991, the Court of First Instance dismissed as unfounded the action brought by Mr de Compte against the disciplinary decision. That judgment was the subject of an appeal, which was dismissed by the Court of Justice in Case C-326-91 P De Compte v Parliament [1994] ECR I-2091.

5. Following the judgment of 17 October 1991, the President of the Parliament refused, by decision of 19 December 1991, to grant Mr de Compte a final discharge for the 1982 financial year in regard to the transactions connected with the cashing, in 1981, of two cheques drawn on the Midland Bank in London (hereinafter 'the case of the members' cash office). The Court of First Instance dismissed the action brought by Mr de Compte against that decision in its judgment of 14 June 1995 in Case T-61-92 De Compte v Parliament [1995] ECR-SC I-A-145 and II-449.

6. On 28 June 1995, the Rapporteur of the Parliament's Budgetary Control Committee, Mr Jean-Claude Pasty, drew up a draft report providing for discharge in regard to the implementation of the Parliament's budget for the 1993 financial year in which reference was made to the case of the members' cash office in a manner favourable to Mr de Compte.

7. On 26 September 1995, the Budgetary Control Committee adopted the draft report, albeit after removing the section relating to the case of the members' cash office, which accordingly was not adopted by the Committee. On 12 October 1995, the Parliament approved the draft in the form adopted by the Committee.

8. By letter of 13 February 1996, Mr Pasty replied to the comments of the Parliament's Director-General of Personnel, the Budget and Finance on the draft report in question (hereinafter 'the letter of 13 February 1996).

9. On 19 June 1996, Mr de Compte brought an application for revision of the judgment of 17 October 1991 before the Court of First Instance.

The contested judgment

10. It appears from the contested judgment that Mr de Compte, relying on the letter of 13 February 1996, raised several allegedly new facts in support of his application. In particular, he argued that he had not had unrestricted access to the file; that the Parliament's administrative authorities had drawn up new documents and records for management of the accounts; that there was no document establishing the cash surplus found by the Court of Auditors; that the cashing of the two cheques drawn on the Midland Bank was a proper transaction; and that the deficit in the members' cash office in 1982 had not been the subject of a report. Furthermore, he maintained that in February 1982 the Parliament's Director of Finance signed a receipt in the amount of GBP 19 000 in relation to the account in dispute and that the competent authorities at the Parliament were therefore aware of that account.

11. The Court of First Instance held that the letter of 13 February 1996 contained Mr Pasty's assertions, assumptions and personal assessments which could not constitute new facts such as to cause the judgment of 17 October 1991 to be revised. It also held that Mr de Compte was not unaware of the facts referred to before that judgment was delivered and that in any event those facts were not capable of leading the Court to a different determination of the proceedings from that reached. With specific regard to the receipt, the Court of First Instance observed inter alia that the document was clearly dated and signed in May 1982, that is, after the competent authorities of the Parliament were informed of the existence of the account in dispute.

12. The application for revision was therefore dismissed by the contested judgment as inadmissible.

The appeal

13. In support of his appeal, Mr de Compte argues that the refusal of the Court of First Instance to classify Mr Pasty's statements in the letter of 13 February 1996 as new facts within the meaning of Article 41 of the EC Statute of the Court of Justice amounted to an error.

14. The Parliament contends that the appeal is manifestly inadmissible or, in the alternative, unfounded.

Findings of the Court of Justice

Admissibility of the appeal

15. The Parliament contends that the appeal is inadmissible on the ground that the Community legal order does not permit an appeal to be brought against a judgment of the Court of First Instance declaring an application for revision inadmissible. The reason for that is that, when assessing the admissibility of an application for revision, the Court of First Instance examines the facts only and does not address points of law.

16. In any event, the Parliament maintains that the appeal should be declared inadmissible on the ground that Mr de Compte does not plead infringement of any rule of law or rely on any legal argument in support of the form of order sought by him.

17. In that connection, it must be observed that, under Article 168a of the EC Treaty and Article 51 of the EC Statute of the Court of Justice, there is a right of appeal to the Court of Justice on points of law only, and the grounds on which the appeal lies include infringement of Community law by the Court of First Instance (see to that effect Case C-136-92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 47).

18. It is also appropriate to point out that the first paragraph of Article 41 of the EC Statute of the Court of Justice, which was extended to proceedings before the Court of First Instance by the first paragraph of Article 46 of that Statute, provides that an application for revision of a judgment may only be made 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 (see Joined Cases C-199-94 P and C-200-94 P REV Inpesca v Commission [1998] ECR I-831, paragraph 15).

19. Finally, it is settled case-law that the legal classification of the facts may be reviewed in the context of an appeal (Case C-70-91 P Council v Brems [1992] ECR I-2973, and Case C-119-94 P Coussios v Commission [1995] ECR I-1439).

20. It follows that the interpretation of the phrase '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 and the classification of the facts relied on by the party applying for revision as falling within that phrase are points of law which may be subject to review by the Court of Justice on appeal.

21. In this case, Mr de Compte argues mainly that the Court of First Instance committed an error in holding that the letter of 13 February 1996, taken as a whole, does not constitute a new and decisive factor within the meaning of Article 41 of the EC Statute of the Court of Justice. Relying essentially on the authority of the author of that letter, Mr de Compte continues to claim that certain of his allegations in the proceedings before the Court of First Instance are new and decisive facts. He also claims that the concept of a new fact should be broadly construed and include the corresponding evidence.

22. Mr de Compte is therefore criticising the Court of First Instance for misinterpreting the concept of a new and decisive fact under Article 41 of the EC Statute of the Court of Justice.

23. Mr de Compte is thus raising a point of law which is admissible on appeal. The Parliament's plea of inadmissibility in relation to the appeal must therefore be dismissed and consideration given to whether the Court of First Instance was correct, in the light of Article 41 aforesaid, in its findings as to the allegedly new facts relied on in support of the form of order sought by the appellant.

Substance

24. 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 the order of the Court of Justice in CaseC-185-90 P REV Gill v Commission [1992] ECR I-993, paragraph 12, and Inpesca v Commission, cited above, paragraph 17).

25. The reason why those requirements are so stringent is that revision is not an appeal procedure but an exceptional review procedure which allows the authority of res judicata to be called in question (see Case 267-80 REV Riseria Modenese v Council and Others [1985] ECR 3499, paragraph 10).

26. Mr de Compte claims first of all that two officials of the Parliament, to whom the Court of First Instance refers at paragraph 192 of the judgment of 17 October 1991, made statements before a Luxembourg court which are in complete contradiction to the findings of the Court of First Instance.

27. Secondly, Mr de Compte argues from the premiss that, in its observations of 25 July 1996 before the Court of First Instance, the Parliament recognised that the charge laid against him was never the subject of a report.

28. In that connection, it must be pointed out that the facts so relied on were not the subject of any finding by the Court of First Instance. The Court of Justice does therefore not have jurisdiction, in an appeal against a judgment declaring an application for revision inadmissible, to determine or consider for the first time whether such facts constitute new facts. It follows that Mr de Compte's allegations, which the Court of Justice cannot examine in order to establish whether they are well founded, are inadmissible.

29. Thirdly, Mr de Compte's argument seeks to challenge the finding of the Court of First Instance that the Parliament's Director of Finance signed a receipt in May 1982, claiming that the bank interest related to February 1982.

30. On that point, suffice it to note that the Court of First Instance alone has jurisdiction to assess the value which should be attached to the evidence produced before it, provided that it has been properly obtained and that general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed (see inter alia the order in Case C-19-95 P San Marco v Commission [1996] ECR I-4435, paragraph 40). It follows that that plea is also inadmissible.

31. Finally, it is necessary to consider whether the letter of 13 February 1996 relied on by Mr de Compte in order to justify his application for revision fulfils the requirements of Article 41 of the EC Statute of the Court of Justice, as set out in the case-law of the Court of Justice.

32. In that connection, it must be observed that assertions or personal opinions which have no official authority relating to facts which might possibly be classified as new facts within the meaning of Article 41 of the EC Statute of the Court of Justice cannot in themselves constitute such facts.

33. In this case, it is common ground that the letter of 13 February 1996 is not an official document. Indeed, that letter contains only Mr Pasty's personal assessment of the facts relating to the case of the members' cash office, which were moreover known to Mr de Compte prior to delivery of the judgment of 17 October 1991.

34. It follows from the foregoing that the letter of 13 February 1996, which does not satisfy the conditions laid down in Article 41 of the EC Statute of the Court of Justice, cannot be considered to be a new and decisive fact within the meaning of that article.

Costs of the proceedings at first instance

35. Mr de Compte also challenges the order for costs made against him by the Court of First Instance.

36. Under the second paragraph of Article 51 of the EC Statute of the Court of Justice, 'No appeal shall lie regarding only the amount of the costs or the party ordered to pay them.

37. As all the other pleas advanced by the appellant have been rejected, the plea concerning costs must, by virtue of that provision, be rejected as inadmissible (see Case C-396-93 P Henrichs v Commission [1995] ECR I-2611, paragraphs 65 and 66, and the order in Case C-140-96 P Dimitriadis v Court of Auditors [1997] ECR I-5635, paragraph 56).

38. It follows from all of the foregoing considerations that the appeal must be dismissed in its entirety.

Costs

39. 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. Under Article 70 of those Rules, in proceedings between the Communities and their servants, institutions are to bear their own costs. However, by virtue of the second paragraph of Article 122 of the Rules of Procedure, Article 70 does not apply to appeals brought by officials or other servants of an institution against the latter. Since Mr de Compte's appeal has been unsuccessful, he must be ordered to pay the costs.

On those grounds,

THE COURT (Sixth Chamber)

hereby:

1. Dismisses the appeal;

2. Orders Mr de Compte to pay the costs.