ORDER OF THE COURT OF FIRST INSTANCE (First Chamber)
2 February 2009(*)
(Procedure – Application for revision – Absence of a new fact – Inadmissibility)
In Case T‑367/03 REV,
Yedaş Tarim ve Otomotiv Sanayi ve Ticaret AŞ, established in Ümraniye, Istanbul (Turkey), represented by R. Sinner, lawyer,
applicant for revision,
v
Council of the European Union, represented by M. Bishop and D. Canga Fano, acting as Agents,
and
Commission of the European Communities, represented by G. Boudot and X. Lewis, acting as Agents,
defendants,
APPLICATION for revision of the judgment of the Court of First Instance of 30 March 2006 in Case T-367/03 Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission [2006] ECR II-873,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (First Chamber),
composed of V. Tiili, President, F. Dehousse (Rapporteur) and I. Wiszniewska-Białecka, Judges,
Registrar: E. Coulon,
makes the following
Order
The facts
1 Yedaş Tarim ve Otomotiv Sanayi ve Ticaret AŞ (‘Yedaş Tarim’ or ‘the applicant for revision’) is a company established under Turkish law. Its business consists of the importation and manufacture of ball bearings and the importation of housings and belts for use as spare parts, in particular for agricultural machinery and the automotive industry.
2 Following the entry into force of the Customs Union between the European Community and the Republic of Turkey established by Decision No 1/95 of the EC-Turkey Association Council of 22 December 1995 on implementing the final phase of the Customs Union (OJ 1996 L 35, p. 1), all customs duties, taxes and other charges relating to the importation of ball bearings and housings have been removed. According to Yedaş Tarim, that abolition of customs duties, which has led to an increase in imports to Turkey, had a negative impact on its business, causing it losses between 1996 and 2003.
3 As it considers that those losses were the result of the way in which the customs union established by Decision No 1/95 has been implemented by the Community, Yedaş Tarim brought an action for damages before the Court against the Council and the Commission under Article 288 EC.
4 By judgment of 30 March 2006 in Case T-367/03 Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission [2006] ECR II-873 (‘the judgment of 30 March 2006’), the Court dismissed the action.
5 Yedaş Tarim brought an appeal against the judgment of 30 March 2006, which was dismissed by order of the Court of Justice of 5 July 2007 in Case C-255/06 P Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission, not published in the ECR. That order is the subject of an application for revision currently pending before the Court of Justice (C-255/06 P-REV).
Procedure and forms of order sought
6 By document lodged at the Registry of the Court of First Instance on 20 March 2008, the applicant for revision brought the present application under Article 125 of the Rules of Procedure of the Court of First Instance.
7 The Commission and the Council submitted their observations by documents lodged at the Registry on 5 and 6 June 2008 respectively.
8 The applicant for revision claims that the Court should:
– declare the application for revision admissible and schedule a hearing;
– declare the application for revision well founded;
– order the Council and the Commission to pay the costs.
9 The Commission contends that the Court should:
– dismiss the application for revision;
– order the applicant for revision to pay the costs.
10 The Council contends that the Court should:
– dismiss the application for revision as inadmissible or, alternatively, as unfounded;
– order the applicant for revision to pay the costs.
Admissibility of the application for revision
11 Under the first and second paragraphs of Article 44 of the Statute of the Court of Justice, applicable to the procedure before the Court of First Instance pursuant to the first paragraph of Article 53 of the statute:
‘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, recognising that it is of such a character as to lay the case open to revision and declaring the application admissible on this ground.
…’
12 Those provisions are supplemented by Articles 125 to 127 of the Rules of Procedure. Article 125 of the Rules of Procedure provides:
‘… [A]n application for revision of a judgment shall be made within three months of the date on which the facts on which the application is based came to the applicant’s knowledge.’
13 Under Article 126(1)(d) of the Rules of Procedure, an application for revision is to indicate the nature of the evidence to show that there are facts justifying revision of the judgment, and that, in particular, the three-month time-limit laid down in Article 125 of those rules has been observed.
14 Pursuant to Article 127(2) of the Rules of Procedure, the Court, without prejudice to its decision on the substance, is, having regard to the written observations of the parties, to give its decision on the admissibility of the application. In accordance with Article 127(3), if the Court finds the application admissible, it is to proceed to consider the substance of the application and is to give its decision in the form of a judgment in accordance with the Rules of Procedure.
15 According to established case-law, revision is not an appeal procedure but an exceptional review procedure that allows the authority of resjudicata attaching to a final judgment to be called in question 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 (Case C-130/91 REV II ISAE/VP and Interdata v Commission [1996] ECR I-65, paragraph 6; orders in Case T-8/89 REV DSM v Commission [1992] ECR II-2399, paragraph 14, and of 18 April 2007 in Case T-393/04 REV Klaas v Parliament, not published in the ECR, paragraph 11).
16 In accordance with the provisions and case-law cited above, it is, therefore, necessary to examine the admissibility of the application for revision of the judgment of 30 March 2006.
The first plea, relating to the existence of a new fact
17 The applicant for revision invokes the declaration of the Hellenic Republic, according to which its accession to the Community would cause no harm to the Republic of Turkey. In the minute of the Community meeting at Luxembourg on 24 June 1975, the Council agreed that the study of the request for accession presented by the Hellenic Republic would not affect relations between the Community and the Republic of Turkey and the rights under the agreement between the Community and the Republic of Turkey would remain unaffected. The applicant for revision claims to have had access neither to the declaration of the Hellenic Republic, nor to the minute of the meeting. That declaration constitutes therefore, in the submission of the applicant, a new fact. The applicant claims that the Hellenic Republic infringed the obligation under that declaration, as well as the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 by the Republic of Turkey, of the one part, and the Community and its Member States, of the other (OJ 1973 C 113, p. 1; ‘the Ankara Agreement’), and Article 56 of the Additional Protocol signed on 23 November 1970 and annexed to the Ankara Agreement (OJ 1973 C 113, p. 17). The applicant for revision also criticises the Commission and the Council for having failed to adopt the measures necessary to protect the interests of the Republic of Turkey and highlights their inaction and passivity.
18 The Commission and the Council claim that this plea is inadmissible and, in any event, unfounded.
19 The Court observes, in that respect, that the applicant for revision does not specify the date on which it discovered the existence of the declaration of the Hellenic Republic and therefore does not establish that the three-month time-limit laid down in Article 125 of the Rules of Procedure (see paragraph 12 above) has been observed in the present case.
20 In any event, the applicant for revision does not demonstrate how the declaration of the Hellenic Republic of 24 June 1975 would be of such a nature as to be a ‘decisive factor’ within the meaning of Article 44 of the Statute of the Court of Justice, to the extent that, if the Court of First Instance had taken it into consideration, the determination in the judgment of 30 March 2006 would have been different, as is required by the case-law cited above (see paragraph 15 above).
21 Therefore, the first plea must be rejected as inadmissible.
The second, fourth, fifth, seventh and ninth pleas, relating to breach of the right to a fair trial
22 The applicant for revision alleges breach of the right to a fair trial in several respects. In the context of its second plea, it calls the impartiality and independence of the Court into question. By its fourth plea, it invokes the lack of an oral procedure, on the ground that its Turkish counsel was not authorised to plead before the Court. It complains, by its fifth plea, that the Court did not respect its rights of defence and right to a fair trial, guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). It submits, by its seventh plea, that the Court infringed the principle of equal treatment by not ruling in accordance with the case-law, and this was also in breach of the right to a fair trial. Finally, it claims, by its ninth plea, that the Court erred in ignoring the existence of a causal link between the measures adopted under the customs union and the losses suffered by the applicant, thereby infringing its right to a fair trial and giving an advantage to the Council and the Commission.
23 The Commission and the Council state that these pleas do not set out any new fact and contend that they should be rejected.
24 The Court observes that, in the context of those pleas based on breach of the right to a fair trial, none of the elements relied upon by the applicant for revision constitutes a new fact within the meaning of Article 44 of the Statute of the Court of Justice (see paragraph 11 above), as interpreted by the case-law (see paragraph 15 above).
25 In fact, the applicant for revision confines itself to challenging the Court’s assessment in the judgment of 30 March 2006, without invoking any element whatsoever which existed prior to that judgment and which was unknown at that time to the Court and to itself, and which, had the Court been able to take it into consideration, could have led it to a different determination of the proceedings. In that way, the applicant treats the procedure for revision in the same way as an appeal procedure. The fourth plea, relating to the lack of an oral procedure, was, moreover, expressly rejected by the Court of Justice in the order in Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission (paragraph 44).
26 The second, fourth, fifth, seventh and ninth pleas, relating to breach of the right to a fair trial, must therefore be rejected as inadmissible.
The third plea, relating to the failure to take account of an expert’s report
27 The applicant for revision submits that, in the judgment of 30 March 2006, the Court failed to take account of the expert’s report which the applicant had produced and which constituted the basis of its claim for damages, although it was, in the applicant’s submission, an essential document. It complains, moreover, of a contradiction in the Court’s reasoning.
28 The Commission and the Council state that this plea does not set out any new fact and contend that it should be rejected.
29 The Court finds that the applicant for revision merely disputes the Court’s assessment, without setting out any new fact within the meaning of Article 44 of the Statute of the Court of Justice, as it is interpreted by the case-law (see paragraph 15 above).
30 Therefore, the third plea must be rejected as inadmissible.
The sixth plea, relating to the mistake made in the assessment of the argument concerning the Customs Union
31 The applicant for revision claims, in essence, that its argument concerning the Customs Union, established by Decision No 1/95, and the Ankara Agreement, which was rejected by the Court, had been misconstrued by it.
32 The Commission and the Council state that this plea does not set out any new fact and contend that it should be rejected.
33 The Court notes that the applicant for revision merely disputes the Court’s assessment, without setting out any new fact within the meaning of Article 44 of the Statute of the Court of Justice, as it is interpreted by the case-law (see paragraph 15 above).
34 Therefore, the sixth plea must be rejected as inadmissible.
The eighth plea, relating to the breach of contractual obligations and of the principle of the protection of legitimate expectations
35 The applicant for revision submits, in essence, that neither the Republic of Turkey nor companies such as itself have been able to benefit from the financial assistance guaranteed under the Ankara Agreement and the Customs Union. It therefore complains of the Community’s failure to comply with its contractual obligations and of breach of the principle of the protection of legitimate expectations.
36 The Commission and the Council state that this plea does not set out any new fact and contend that it should be rejected.
37 The Court notes that the applicant for revision merely disputes the Court’s assessment, without setting out any new fact within the meaning of Article 44 of the Statute of the Court of Justice, as it is interpreted by the case-law (see paragraph 15 above).
38 Therefore, the eighth plea must be rejected as inadmissible.
39 In consequence of the above, the application for revision must be dismissed as inadmissible.
Costs
40 Under Article 87(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. As the applicant for revision has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Council and the Commission.
On those grounds,
THE COURT OF FIRST INSTANCE (First Chamber)
hereby orders:
1. The application for revision is dismissed as inadmissible.
2. Yedaş Tarim ve Otomotiv Sanayi ve Ticaret AŞ shall pay the costs.
Luxembourg, 2 February 2009.