Corte di giustizia UE n. 2016/2018

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 11 December 2018 ( * ) (Application for revision — [OSCURATO:PERSONA] 159 of the Rules of Procedure — Conditions — Appeal — No reliance on a new fact — Inadmissibility) [OSCURATO:PERSONA] C‑233/17 P-REV, in which the applicant seeks revision of the order of 22 February 2018, GX v [OSCURATO:PERSONA] (C‑233/17 P, not published, EU:C:2018:102), brought on 25 May 2018, GX , residing in Bucharest (Romania), represented by G.-M. Enache, avocat, applicant for revision, the other party to the proceedings being: [OSCURATO:PERSONA] , represented by G. Gattinara and P. Mihaylova, acting as Agents, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of M. [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], K. Jürimäe, D. Šváby, S. Rodin and N. Piçarra, Judges, [OSCURATO:PERSONA]: Y. Bot, [OSCURATO:PERSONA]: A. [OSCURATO:PERSONA], having regard to the written procedure, after hearing the [OSCURATO:PERSONA], makes the following [OSCURATO:PERSONA] 1 By his application, lodged at the [OSCURATO:PERSONA] on 25 May 2018, GX applied, pursuant [OSCURATO:PERSONA] 44 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], for revision of the order of 22 February 2018, GX v [OSCURATO:PERSONA] (C‑233/17 P, not published, ‘the contested order’, EU:C:2018:102). 2 By that order, the [OSCURATO:PERSONA], pursuant to [OSCURATO:PERSONA] 181 of its Rules of Procedure, dismissed in its entirety as being in part clearly inadmissible and in part clearly unfounded, the appeal brought by GX against the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 3 March 2017, GX v [OSCURATO:PERSONA] (T‑556/16, not published, EU:T:2017:139). Background to the application for revision 3 In 2013, GX took part in an open competition organised by the [OSCURATO:PERSONA] (EPSO). The notice of competition, published in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 31 January 2013 (OJ 2013 C 29 A, p. 1), was the subject of a corrigendum published on 3 April 2013 (OJ 2013 C 94 A, p. 1). 4 On 26 February 2014, EPSO informed him that the selection board had not included his name on the reserve list for the competition on the ground that he did not obtain the minimum number of points for tests organised in an assessment centre. 5 GX first submitted a request for a review of the decision communicated to him by EPSO on 26 February 2014. Following confirmation of that decision, by a new decision adopted on 20 August 2014, GX submitted a complaint, within the meaning of [OSCURATO:PERSONA] 90(2) of the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA], which was also rejected. 6 By application lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 18 June 2015, the applicant brought an action seeking, first, annulment of the decision of 20 August 2014 and, secondly, compensation for the material and non-material damage he allegedly suffered as a result of that decision. 7 Pursuant to [OSCURATO:PERSONA] 3 of Regulation (EU, Euratom) 2016/1192 of the [OSCURATO:PERSONA] and of the Council of 6 July 2016 on the transfer to the [OSCURATO:PERSONA] of jurisdiction at first instance in disputes between the [OSCURATO:PERSONA] and its servants (OJ 2016 L 200, p. 137), the case was transferred to the [OSCURATO:PERSONA]. 8 By order of 3 March 2017, GX v [OSCURATO:PERSONA] (T‑556/16, not published, EU:T:2017:139), the [OSCURATO:PERSONA] dismissed the action for annulment, on the ground that the pleas raised in support of them were ineffective or manifestly unfounded and, consequently, also rejected the claim for compensation for the damage allegedly suffered by GX and the action of the latter in its entirety. 9 GX brought an appeal before the [OSCURATO:PERSONA] of Justice against that order in support of which he put forward two grounds of appeal. The first ground of appeal, divided into three parts, alleged ‘the illegality of the notice of competition’, ‘the illegality of the [OSCURATO:PERSONA] fundamental principles’ and ‘the illegality of the corrigendum [published on 3 April 2013 (OJ 2013 C 94 A, p. 1)]’. The second ground of appeal, divided into two parts, alleges procedural irregularities during the course of the competition at the assessment centre. 10 For the reasons set out, respectively, in paragraphs 21 and 22 and paragraphs 26 and 27 of the order under appeal, the [OSCURATO:PERSONA] of Justice held that the first and second parts of the first ground of appeal were manifestly inadmissible on the ground that, by them, the applicant raised new arguments not argued before the [OSCURATO:PERSONA]. Furthermore, the [OSCURATO:PERSONA] held that the third part of the first ground was manifestly ineffective, that the first part of the second ground was manifestly inadmissible and that the second part of that ground was, in part, manifestly inadmissible and, in part, manifestly unfounded. [OSCURATO:PERSONA], therefore, dismissed the appeal in its entirety. Forms of order sought by the parties before the [OSCURATO:PERSONA] 11 GX asks the [OSCURATO:PERSONA] to set aside the order under appeal and, consequently, annul the decision of 20 August 2014, to order compensation for the material and non-material damage he suffered as a result of that decision and order the [OSCURATO:PERSONA] to pay the costs. 12 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: –        dismiss the application for revision as manifestly inadmissible, or, in the alternative, as manifestly unfounded, and –        order GX to pay the costs. The application for revision Arguments of the parties 13 GX states that, since the Rules of Procedure of the [OSCURATO:PERSONA] of Justice do not foresee a manner of appeal against a procedural error of the [OSCURATO:PERSONA] of Justice when it adopts an order dismissing an appeal, only a review of the appeal by the [OSCURATO:PERSONA] could remedy such an error. He therefore asks ‘the [OSCURATO:PERSONA] and/or the Judge-Rapporteur to analyse and enroll’ his request ‘in the manner that would be considered the most appropriate for the legal nature to [prevail] and to prevent the implementation of a grave error result[ing] from the erroneous implementation of the law’. 14 In that regard, GX argues that the [OSCURATO:PERSONA] erred in law in that it found that, by the first part of the first ground of appeal, GX raised before the [OSCURATO:PERSONA] a new argument which he could have raised before the [OSCURATO:PERSONA]. GX emphasises that he had indicated that he was not introducing a new ground, but new arguments in support of his plea of illegality of the notice of competition. 15 Furthermore, GX claims that the [OSCURATO:PERSONA] erred, in that it considered that the second part of the first ground of appeal alleged the illegality of the recruitment principles governing EPSO competitions. According to him, that part alleged illegality, lack of validity and scientific foundation of the [OSCURATO:PERSONA] fundamental principles and, more specifically, of the fundamental principles governing EPSO open competitions. [OSCURATO:PERSONA] of Justice had therefore omitted to rule on the actual ground that he had raised. 16 [OSCURATO:PERSONA] submits that the application for revision is manifestly inadmissible, since GX submits no new fact. Findings of the [OSCURATO:PERSONA] 17 Pursuant to [OSCURATO:PERSONA] 44 of the Protocol on the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], ‘an application for revision of a judgment may be made to the [OSCURATO:PERSONA] of Justice 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 [OSCURATO:PERSONA] and to the party claiming the revision’. 18 Furthermore, pursuant to [OSCURATO:PERSONA] 159(1) of the Rules of Procedure, an application for revision of an order may be made only where the conditions laid down in [OSCURATO:PERSONA] 44 of the Statute, relating to the discovery of a fact unknown to the [OSCURATO:PERSONA] and to the party claiming the revision, which is of such a nature as to be a decisive factor, are fulfilled. 19 According to consistent case-law of the [OSCURATO:PERSONA] of Justice, 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 [OSCURATO:PERSONA] 181 of the Rules of Procedure to be called into question on the basis of the findings of fact relied upon by the [OSCURATO:PERSONA]. 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 [OSCURATO:PERSONA] which delivered the judgment or the order as well as to the party applying for revision and which, had the [OSCURATO:PERSONA] been able to take them into consideration, could have led it to a different determination of the proceedings (judgment of 2 April 2009, Yedaş Tarim ve [OSCURATO:PERSONA] ve Ticaret v Council and [OSCURATO:PERSONA] , C‑255/06 P-REV, not published, EU:C:2009:212, paragraph 16 and the case-law cited). 20 Furthermore, it is apparent from [OSCURATO:PERSONA] 159(5) of the Rules of Procedure that, in the case of an application for revision, without prejudice to its decision on the substance, the [OSCURATO:PERSONA], after hearing the [OSCURATO:PERSONA], is to give in the form of an order its decision on the admissibility of the application, having regard to the written observations of the parties. 21 In the present case, it is clear that GX puts forward no new fact capable of justifying an application for revision of the order under appeal. On the contrary, by his own admission, he seeks, by his request, the annulment of the order under appeal, on the ground that the [OSCURATO:PERSONA]’s reasoning set out in that order is vitiated by errors. 22 However, as is apparent from the case-law cited in paragraph 19 of the present order, revision is not an appeal procedure, which can, in the absence of any new fact, call into question the legal assessments made by the [OSCURATO:PERSONA], which have the authority of res judicata. 23 [OSCURATO:PERSONA] those circumstances, in accordance with [OSCURATO:PERSONA] 159(5) of the Rules of Procedure, the present application for revision must be dismissed as inadmissible. Costs 24 [OSCURATO:PERSONA] 138(1) 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 [OSCURATO:PERSONA] has asked for costs and GX has been unsuccessful, he must be ordered to pay the costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Dismisses the application for revision brought by GX; 2. Orders GX to pay the costs. Luxembourg, 11 December 2018. A. [OSCURATO:PERSONA] M. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] * Language of the case: English.