JUDGMENT OF 17. 2. 1972 — CASE 40/71 RICHEZ-PARISE v COMMISSION

In Case 40/71

THE COURT (First Chamber) composed of: J. Mertens de Wilmars, President of Chamber, A. M. Donner (Rapporteur) and R. Monaco, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts and procedure

II — Conclusions of the parties

(2) alternatively

III — Submissions and arguments of the parties

As to the principal claim

The alternative claim

Grounds of judgment

Costs

I —. Summary of facts and procedure

(1). a declaration restoring the interpretation originally adopted by the EEC of the pension rights provided for in Article 5 of Regulation No 259/68 of the Council of 29 February 1968 (OJ English Special Edition, 1968 (I), p. 30), and for an order that the administration settle the applicant's claims in accordance with the interpretation ;

(2). alternatively, and should the principal claim be rejected, for the annulment of the decision of 20 June 1968 of the Commission of the EEC and accordingly for an order that she be reinstated in exactly the grade and post which she held at the time of her departure from the service, together with all the rights attaching thereto.

II —. Conclusions of the parties

(1). award her the compensation equivalent to that awarded by the Court to Mrs Fiehn by the judgment delivered on 9 July 1970, or her reinstatement in the post which she held in the Commission before 1 October 1968;

(2). alternatively

(1). rule, in accordance with Article 91 of the Rules of Procedure of the Court and without examining the substance of the case, that the applicant's principal claims are inadmissible;

(2). rule that the alternative claim is inadmissible or unfounded;

(3). make an appropriate order as to costs.

III —. Submissions and arguments of the parties

(a). By contesting the judgment of 28 May 1970 this application runs contrary to the principle of res judicata. It is quite clear that the parties, the subject-matter and the grounds in this case, 40/71, are identical with those in Case 19/69. It is evident from the content of the application that the applicant was aware of this because she faces the consequences of the identical nature of the actions by stating: If the Commission invokes the principle of res judicata to avoid replying to the complaint of 10 September 1970 the applicant requests the Court to revise the judgment given on 28 May 1970.

(b). The applicant's complaint of 10 September 1970, made under Article 90 of the Staff Regulations, to the President of the Commission of the European Communities was followed by no express decision from the Commission and was therefore the subject of an implied decision of rejection by virtue of the expiry of the period prescribed in Article 91 of the Staff Regulations. Since under that provision the period for making an appeal ran until 11 November 1970, the period had expired when the applicant lodged her application on 8 July 1971.

(c). The application does not comply with Article 38(1)(c) and (d) of the Rules of Procedure of the Court of Justice in that it nowhere sets out the grounds of the applicant's claims.

(a). The applicant nowhere indicates the precise aspects of the contested judgment which call for revision. She gives no more than the following statement of reasons: If, therefore, it is quite clear that the Court can undertake a revision of the judgment in question, it is equally clear that the claim is well-founded. A mere comparison of the judgments given on May 1970 and 9 July 1970 and the similar position of the applicants subject to these decisions are enough to establish this. This does not show any clear grounds of claim or any explicit legal basis on which the claim could be justified and founded.

(b). Since Article 99 (2) expressly stipulates : The application must be made against all parties to the case in which the contested judgment was given, the applicant should have joined to the action the other parties to the judgment of 28 May 1971 in Joined Cases 19, 20, 25 and 30/69. The purpose of joining the others to the action is to prevent the judgment from being altered without their having the opportunity to make known their interests and to present their opinions and arguments.

(c). By relying on the alteration of the initial application in Case 19/69 as the factual basis for this application for revision, the applicant is placing a false interpretation on the first paragraph of Article 41 of the Protocol on the Statute of the Court of Justice of the EEC. This provision only applies to the discovery of new factual elements which constitute a material factor in the case to be judged. The alteration, possibly by mistake, of a conclusion in the course of proceedings before the Court of Justice cannot be regarded as such a fact within the meaning of the first paragraph of Article 41 of the Statute of the Court.

(d). The provisions of the first paragraph of Article 41 require that the fact must have been unknown to the party claiming the revision when the judgment was given. Since legally the alteration in the initial application in Case 19/69 is deemed to have been made by the applicant herself, she cannot claim that this alteration was unknown to her when the judgment was delivered.

(e). The applicant made her application for revision after the period prescribed by Article 98 of the Rules of Procedure had expired since she received knowledge of the fact on which the application for revision is based on 19 June 1970 at the latest (the day on which she received knowledge of the judgment delivered by the Court). Therefore it is evident that the period prescribed by Article 98 of the Rules of Procedure had long since expired when she made her present application on 8 July 1971.

1. By an application lodged at the Registry on 8 July 1971, the applicant has brought an action seeking, in the first place, the annulment of the implied refusal of the President of the Commission to award her compensation equivalent to that awarded by the Court of Justice to Mrs Fiehn by its judgment given on 9 July 1970 in Case 23/69 (Fiehn v Commission, [1970] ECR 547) or to reinstate her in the post which she occupied in the service of the Commission until 1 October 1968 and, in the second place, for the revision of the judgment delivered on 28 May 1970 in Joined Cases 19, 20, 25 and 30/69 (Richez-Parise and Others v Commission, [1970] ECR 325).

2. The application therefore comprises two distinct actions governed by different rules as regards both procedure and judgment.

3. Nevertheless, since the claim for revision was only made in the alternative and seeks in substance the same result as the principal claim, it is proper that, for reasons which will appear subsequently, both claims should be adjudicated upon in the same judgment.

4. With regard to the principal claim the defendant Commission has raised various objections as to admissibility, and in particular that the claim was made out of time.

5. Under Article 91 of the Staff Regulations, where the competent authority takes no decision in respect of a request or a complaint within two months from the date on which it was lodged, this shall be deemed to constitute an implied decision rejecting it against which an appeal may be lodged within two months.

6. The two periods set out in Article 91 are together intended to ensure, within the Community institutions, the legal certainty which is indispensable to their proper functioning.

7. The parties concerned may not, therefore, extend them at will.

8. The letter of 15 December 1970 whereby the Director of Personnel informed the applicant that the question raised by her was under consideration by the departments of the Commission but that they had not yet reached a final conclusion did not constitute a decision in response to the request.

9. It could not, on the other hand, by itself have any other legal effect, in particular that of extending the periods prescribed by Article 91 of the Staff Regulations.

10. Since the departments of the Commission had not taken any decision within two months in reply to the request of 10 September 1970, the letter of 15 December could not have interrupted the period of two months available to the applicant for bringing before the Court the implied rejection resulting from this silence.

11. In so far as it is directed against the implied rejection of the request of 10 September 1970, the action must be regarded as out of time and therefore inadmissible.

12. In the alternative, in order to obtain the award which she seeks in her principal claim, the applicant seeks the revision of the judgment of 28 May 1970.

13. She states that the reply in Joined Cases 19, 20, 25 and 30/69 contained an amendment of the initial request of the applicant in that it stated that she no longer sought her reinstatement and sought as compensation for the damage suffered by her an amount equivalent to three years' salary.

14. This amendment is said to have been submitted to the Court without her consent and to have misled the Court.

15. She further states that this mistake had an influence on the decision given in the judgment of 28 May 1970 since it is expressly contained in the grounds of this judgment.

16. Article 41 of the Protocol on the Statute of the Court of Justice of the EEC provides that the application for revision of a judgment may be made 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.

17. Article 98 of the Rules of Procedure provides that 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.

18. It appears from a letter sent by the applicant to the President of the Commission on 10 December 1970 that she received knowledge of the facts upon which she relies on 18 June 1970.

19. Therefore her application for revision entered in the Court Registry on 8 July 1971 must be dismissed as being out of time, without there being any necessity to examine whether it further satifies the requirements of the Protocol on the Statute of the Court of Justice.

20. Nevertheless the Court deems it relevant to point out that the ground of the judgment of 28 May 1970 relied on in support of the application for revision starts with the word moreover.

21. This word serves to show that the fact referred to only constituted an additional ground to the decisive ground preceding it.

22. It follows from this that the application for revision must be dismissed as inadmissible.

23. The applicant has failed in her application.

24. Under Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

25. The defendant has suggested that in the present case, in derogation from the provisions of Article 70 of the Rules of Procedure, the applicant should be ordered to pay its costs in the case as being vexatiously and unreasonably caused.

26. Nevertheless the defendant for its part misled the applicant, in particular by the letter from its Director of Personnel of 15 December 1970 which was of such a nature as to suggest that the request of 10 September 1970 was not without substance.

27. When drafted in such a way as to create the false impression that the request may give rise to a fresh examination and that the party concerned may calmly await the result of this, such letters are to be deplored.

28. In these circumstances the rule contained in Article 70 of the Rules of Procedure must be applied.

On those grounds, Upon reading the pleadings ; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties as to the principal claim of the applicant ; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of the European Communities, especially Articles 90 and 91; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 41 ; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 91, 92, 98, 99 and 100, THE COURT (First Chamber) hereby:

1 Dismisses the application as inadmissible;

2 Orders the parties to bear their own costs.