ORDER OF THE GENERAL COURT (Appeal Chamber)

17 December 2009

Case T-567/08 P

Bart Nijs

v

Court of Auditors of the European Union

(Appeal – Civil service – Officials – Decision not to promote the appellant in the 2005 promotion year – Appeal partly manifestly inadmissible and partly manifestly unfounded)

Appeal: brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) in Case F-49/06 Nijs v Court of Auditors [2008] ECR-SC I-A-1-0000 and II-A-1-0000, and seeking to have that judgment set aside.

Held: The appeal is dismissed. Mr Bart Nijs is to bear his own costs and those incurred by the Court of Auditors of the European Union in the present proceedings.

Summary

1.      Appeal – Statement of pleas in law and legal arguments in the application – Confused and disorganised statement of arguments – Inadmissibility

(Rules of Procedure of the General Court, Art. 138(1)(c))

2.      Appeal – Pleas in law – Plea based on the taking into account of findings in a previous judgment not the subject of an application for revision – Res judicata – Rejection

(Statute of the Court of Justice, Art. 44; Rules of Procedure of the General Court, Art. 126)

1.      Under Article 138(1)(c) of the Rules of Procedure of the General Court an appeal must contain the pleas in law and arguments on which the appellant relies. Those particulars must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the appeal, if necessary, without any further information. In order to guarantee legal certainty and sound administration of justice it is necessary, in order for a plea to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the appeal itself. Otherwise, the Court will confine itself to considering the arguments which it has been able to understand.

(see para. 17)

See: T‑85/92 De Hoe v Commission [1993] ECR II‑523, para. 20; T‑110/98 RJB Mining v Commission [2000] ECR II‑2971, para. 23; T‑167/04 Asklepios Kliniken v Commission [2007] ECR II‑2379, paras 39 and 40

2.      An appellant cannot complain that the Civil Service Tribunal has not reviewed the findings in a previous judgment of the Tribunal concerning him, or that it has failed to request new evidence from the other party, where that judgment has become res judicata in the absence of any application for revision as provided for in the first paragraph of Article 44 of the Statute of the Court of Justice.

The force of res judicata, which applies to issues of fact and law actually or necessarily settled by a decision of the courts, may be challenged only in the context of a revision procedure. Revision presupposes the discovery of facts which predate the delivery of the judgment, were unknown to the Court up to the point when it delivered the judgment, and would, if the Court had been able to take them into consideration, have been likely to lead it to adopt a different decision to the one adopted in the proceedings. Under the provisions of the second paragraph of Article 44 of the Statute of the Court of Justice, in conjunction with Article 126 of the Rules of Procedure of the General Court, the revision of a judgment of the General Court is opened by a judgment of the Court expressly recording the existence of a new fact and recognising that it is of such a character as to lay the case open to revision, following an application for revision made by one of the parties for that purpose.

(see paras 32-34, 39)

See: C‑281/89 Italy v Commission [1991] ECR I‑347, para. 14; C‑130/91 REV II ISAE/VP and Interdata v Commission [1996] ECR I‑65, para. 6; C‑442/04 Spain v Council [2008] ECR I‑3517, para. 25; T‑91/96 REV Council v Hankart [1998] ECR-SC I‑A‑597 and II‑1809, para. 13