ORDER OF THE COURT OF FIRST INSTANCE (Sixth Chamber)
31 July 2009 (*)
(Procedure – Application for revision – No new fact – Inadmissible)
In Case T‑213/08 REV,
Daniela Marinova, residing in Sofia (Bulgaria), represented by G. Stratiev Georgiev, lawyer,
applicant,
v
Université Libre de Bruxelles
and
Commission of the European Communities
defendants,
APPLICATION FOR REVISION of the order of the Court of First Instance of 5 November 2008 in Cases T-213/08 and T-213/08 AJ Marinova v Université Libre de Bruxelles and Commission (not published in the ECR),
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Sixth Chamber),
composed of A.W.H. Meij (Rapporteur), President, V. Vadapalas and L. Truchot, Judges,
Registrar: E. Coulon,
makes the following
Order
Background
1 In the context of the ‘Marie Curie Incoming International Fellowships’, one of the Marie Curie actions within the framework of the specific technological research and development programme termed ‘Structuring ERA’, the Commission, acting on behalf of the European Communities, concluded a contract with the Université Libre de Bruxelles (ULB) on 14 April 2007 for the Community financing of a research project entitled ‘Active Structures with Smart Materials: Modelling, Control, Numerical Simulation and Experimental Validation’ (Contract No 038950 (MEIF CT/2007 038950)). Annex I to that contract designates Professor Preumont as the person in charge of the research project, and the applicant as a researcher.
2 The contract contains a clause conferring jurisdiction on the Community courts to rule on any dispute arising between the Community and the ULB as regards the validity, performance or interpretation of that contract.
3 On 31 August and 5 October 2007, the ULB concluded two contracts of employment – the first for a period of three months and the second for a period of nine months – with the applicant, who had been recruited as a researcher with a view to carrying out the above research project, financed by the Community (‘the contract of employment’).
4 By letter of 19 December 2007, the applicant lodged a complaint with the Commission concerning the content and the performance of the contract of employment. By letter of 11 February 2008, the Commission replied essentially that, according to the information it had received from the ULB, the applicant had the usual contract of employment with comprehensive social benefits. The Commission added that, when the project came to an end, it would check that the ULB had paid the applicant using the share of the Community financial contribution provided for under Contract No 038950 (part D of Annex I) for the work performed by the applicant. Lastly, for further questions relating to the contract of employment, the Commission suggested to the applicant that she contact the ULB directly. Following a second complaint from the applicant dated 10 March 2008, the Commission replied by letter of 14 April 2008.
5 By application lodged at the Registry of the Court of First Instance on 8 June 2008, the applicant brought an action in contract based on the arbitration clause contained in Contract No 038950 (MEIF CT/2007 038950), referred to above.
6 By letter of 25 August 2008, the applicant lodged an application for legal aid pursuant to Article 95 of the Rules of Procedure.
7 By order of 5 November 2008, in Cases T-213/08 and T-213/08 AJ Marinova v Université Libre de Bruxelles and Commission, not published in the ECR, the Court of First Instance dismissed the action as clearly inadmissible and, consequently, also dismissed the application for legal aid.
Procedure and forms of order sought
8 By document lodged at the Registry of the Court of First Instance on 17 March 2009, pursuant to Article 44 of the Statute of the Court of Justice and Article 125 of the Rules of Procedure of the Court of First Instance, Mrs Marinova brought an action for revision of the order of 5 November 2008.
9 The applicant for revision claims that the President of the Court of First Instance should:
– assign the present Case T-213/08 REV to an appropriate chamber.
10 She claims that the Court should:
– retract the order of 5 November 2008 in its entirety as being an illegal decision;
– ensure the regular conduct of the procedure, hear the applicant and ensure the effective resolution of the dispute in Cases T-213/08 and T-213/08 AJ, in accordance with the provisions of the Rules of Procedure;
– ensure the safeguarding of the evidence and order the production by the ULB and the Commission of all administrative and accounting documents relating to Contract No 038950 (MEIF CT/2007 038950);
– appoint an expert in order to determine, inter alia, the whole of the amounts due from the ULB to the applicant pursuant to the abovementioned contract;
– uphold all the claims formulated in the application initiating proceedings in Case T-213/08, and in particular:
– order the ULB to pay her all sums due to her under Contract No 038950 (MEIF CT/2007 038950);
– order the ULB and the Commission, jointly and severally, to pay her EUR 100 000 in compensation for the losses and loss of earnings suffered, on account of her not having been in a position to make use of her competences in the implementation of the project in question financed by the European Community;
– order the ULB and the Commission, jointly and severally, to pay her EUR 30 000 in compensation for non-material damage;
– order the ULB and the Commission to pay the costs.
11 In addition, in her application initiating proceedings, the applicant makes an application for legal aid.
12 The President of the Court of First Instance has assigned this case to the Sixth Chamber.
Law
Arguments of the applicant
13 In support of her application, Mrs Marinova claims that the procedure which terminated with the order of 5 November 2008 is vitiated by serious defects, which do not appear in the appeal brought against that order.
14 In that regard, she cites a series of grave procedural irregularities before the Court of First Instance, which unfavourably influenced the outcome of the dispute. Those irregularities were brought to light by the applicant and her representative following their consultation of the files in Cases T-213/08 and T-213/08 AJ, at the Registry of the Court of First Instance.
15 First, the following documents were missing from the files of Cases T-213/08 and T-213/08 AJ:
– the decision to assign Case T-213/08 to a chamber by the President of the Court of First Instance, pursuant to Article 13(3) of the Rules of Procedure;
– the proposal by the President of the Chamber concerning the designation of a Judge-Rapporteur and the decision of the President of the Court of First Instance concerning that designation, pursuant to Article 13(2) of the Rules of Procedure;
– the decision on the question whether the Court of First Instance would be assisted by an Advocate General, pursuant to Article 18 of the Rules of Procedure.
16 Secondly, the applicant argues that Case T-213/08 was assigned to a single judge. That, she maintains, is evidenced by the fact that the order of 5 November 2008 is signed only by the President of the Chamber and the Registrar. The document establishing that the case was assigned to a single judge pursuant to Article 51(2) of the Rules of Procedure is missing from the file held in the Registry.
17 Thirdly, she also complains of the lack of the document establishing that the application was served on the defendants, of the pleadings in defence, of the documents whereby the President of the Court of First Instance fixed the time-limit for submission of the preliminary report by the Judge-Rapporteur and the date of the hearing, and the preliminary report containing proposals for measures of organisation of procedure. The applicant argues that it is only after the lodging of the defence pleading and the submission of the preliminary report that Article 111 of the Rules of Procedure could be applied.
18 Fourthly, the applicant points to the absence of the following documents from the file:
– the minutes of the hearing;
– the decision establishing that a second exchange of pleadings was not necessary;
– the documents concerning the hearing of the applicant and the decision on the application for expedited procedure, and the acknowledgement of receipt of that application;
– the decisions concerning refusal to accept the documents;
– the notice published in the Official Journal of the European Union pursuant to Article 24(6) of the Rules of Procedure;
– evidence that copies of the application and the defence were sent to the Council and the Parliament pursuant to Article 24(7) of the Rules of Procedure;
– and evidence of posting by registered letter, or sending by fax, or any other technical means of communication, required by Article 100 of the Rules of Procedure and Article 10(5) of the Instructions to the Registrar.
19 Fifthly, the applicant argues that the fact that the file does not contain any request that the application be regularised demonstrates that it satisfied the requirements of Article 44 of the Rules of Procedure.
20 Sixthly, the certificate and mandate of the lawyer representing the applicant were not accepted by the Court of First Instance, as evidenced in particular by the fact that the certificate was not registered separately at the Registry, pursuant to Article 44(3) and (5) of the Rules of Procedure, the fact that certain procedural documents were not served on the applicant, and the fact that the Registrar of the Court of First Instance refused to authorise her lawyer to consult the register of the Court of First Instance and obtain certified copies of each page of the order of 5 November 2008 and official copies of the documents on file in Cases T‑213/08 and T‑213/08 AJ, when the lawyer visited the Registry of the Court of First Instance on 27, 28 and 29 January 2009.
21 Seventhly, the order of 5 November 2008 was not properly registered. Moreover, the provisions of Article 5(2) of the Instructions to the Registrar, referring to the numbering of the documents on file, were not complied with. In particular, letters of differing content, placed on the two files (T-213/08 and T-213/08 AJ), were attributed the same number. Furthermore, the documents on file were signed only by the registrar and not by a judge.
22 Finally, the Court of First Instance did not indicate the reasons why the application was not served on the defendants until after the adoption of the order of 5 November 2008. Nor was any time-limit notified to them for lodging pleadings in defence, after service of the application together with the order of 5 November 2008.
23 The whole of the abovementioned irregularities, particularly the fact that Cases T‑213/08 and T-213/08 AJ were not assigned to a chamber, that no decision was made to assign them to a single judge, that the files contained neither a preliminary report nor minutes of the hearing, and that the order of 5 November 2008 was neither sealed nor properly signed, demonstrate, in her submission, that the procedure remained at an administrative stage, and that the applicant has not yet been heard in these cases.
24 The applicant requests that she be sent a list and the description of the documents contained in the files of Cases T-213/08 and T-213/08 AJ, and a certified copy of each page of the order of 5 November 2008.
Findings of the Court
Preliminary observations
25 In this case, the applicant seeks revision of the order of 5 November 2008, in which the Court of First Instance (Sixth Chamber) dismissed her action in contract against the Commission and the ULB as clearly inadmissible, basing its reasoning on Article 111 of the Rules of Procedure of the Court of First Instance. Consequently, the Court took the view, in that same order, that there was no need to rule on the applicant’s claim that the expedited procedure be used, and also dismissed her application for legal aid, in accordance with Article 94(3) of the Rules of Procedure.
26 Before examining this application for revision, the Court considers it appropriate to point out, as a preliminary observation, that the order of 5 November 2008 was adopted by the Sixth Chamber of the Court of First Instance, composed of three judges, to which Cases T-213/08 and T-213/08 AJ had been assigned by the President of the Court of First Instance pursuant to the relevant provisions. In accordance with Article 37 of the Statute of the Court of Justice, applicable by analogy as regards the signing of orders, the abovementioned order was signed in the regular manner by the President of the Chamber and the Registrar, following its deliberation and its adoption by the Sixth Chamber. Therefore, contrary to the applicant’s interpretation (see paragraphs 15 and 22 above), the fact that that order was not signed by all the judges of the Sixth Chamber and that it does not bear a seal is explained simply by compliance with the required formalities and does not in any way signify that it was not adopted in the regular manner by the chamber.
27 In Case T-213/08, since the Court of First Instance (Sixth Chamber) had taken the view, on the strength of the information contained in the application, that the action was clearly inadmissible, it decided to rule, pursuant to Article 111 of the Rules of Procedure, without continuing the proceedings, that is to say without hearing the defendants. Consequently, in accordance with that article, the application and the other procedural documents were not served on the defendants before the adoption of the order of 5 November 2008 bringing Cases T-213/08 and T-213/08 AJ to a conclusion. Therefore, applying the provisions of Article 100 of the Rules of Procedure, the abovementioned order, which ended the dispute before the Court of First Instance, was notified in the regular manner to the Commission and the ULB, accompanied by the application initiating proceedings and all the other procedural documents.
28 It is in that context that the applicant has applied for the revision of the abovementioned order.
The application for revision
29 Concerning, first, the applicant’s claim that the President of the Court of First Instance assign this application for revision to ‘an appropriate chamber’ (see paragraph 9 above), it is important to note that the decision to assign a case to a chamber, which is a matter for the President of the Court of First Instance, is adopted in the context of measures of administration of justice in accordance with the relevant provisions of the Rules of Procedure of the Court of First Instance. Subject to the provisions of Article 18 of the Statute of the Court of Justice, the parties are not entitled to formulate pleadings in that respect. The abovementioned claim of the applicant is therefore inadmissible.
30 As regards, next, the admissibility of the application for revision, it should be noted that, according to 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 same 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.
…’
31 Those provisions are complemented 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.’
32 Under Article 126(1)(d) of the Rules of Procedure, the application for revision must indicate the nature of the evidence to show that there are facts justifying revision of the judgment, and that the time-limits laid down in Article 125 have been observed.
33 Under Article 127(2) of the Rules of Procedure, without prejudice to its decision on the substance, the Court of First Instance shall, having regard to the written observations of the parties, give its decision on the admissibility of the application. Under Article 127(3), if the Court of First Instance finds the application admissible, it shall proceed to consider the substance of the application and shall give its decision in the form of a judgment in accordance with the Rules of Procedure.
34 It follows from those provisions, according to consistent case-law, that revision is not an appeal procedure but an exceptional review procedure that allows an applicant to call in question the authority of res judicata attaching to a judgment bringing the proceedings to an end 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 (order in Case T‑4/89 REV BASF v Commission [1992] ECR II‑1591, paragraph 14; judgment in Case T‑367/03 REV Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission [2006] ECR II‑873, paragraph 15 and case-law cited).
35 Having regard to the provisions cited above as interpreted by the abovementioned case-law, the Court must thus first examine the admissibility of the application for revision of the order of 5 November 2008.
36 In that regard, it should be recalled at the outset that, under Article 111 of the Rules of Procedure, where it is clear that the Court of First Instance has no jurisdiction to take cognisance of an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court of First Instance may, by reasoned order, and without taking further steps in the proceedings, give a decision on the action.
37 It should be added that Article 111 of the Rules of Procdure applies to all actions brought before the Court of First Instance, including exceptional applications, such as an application for revision (order in BASF v Commission, at paragraph 17).
38 In this case, since the Court is sufficiently informed from the information contained in this application for revision, it is appropriate, pursuant to Article 111 of the Rules of Procedure, to rule on the admissibility of the application without taking any further steps in the proceedings. Contrary to what the applicant for revision alleges (see paragraph 16 above), that article can be applied at any time, particularly after the lodging of the application initiating proceedings, where the Court considers that the information contained in the latter shows that the action is clearly inadmissible.
39 In support of her application, the applicant for revision cites a series of irregularities in the procedure followed by the Court of First Instance, of which she claims to have had cognisance after notification of the order of 5 November 2008, and after consultation, by her representative, of the files in Cases T‑213/08 and T‑213/08 AJ at the Registry of the Court of First Instance.
40 In that respect, it should be noted that none of the matters cited 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 29 above), as interpreted by the case-law (see paragraph 33 above).
41 The applicant for revision does no more than challenge the regularity of the procedure followed by the Court of First Instance, and thus of the assessment which it made in the order of 5 November 2008, and of the registration of that order and its notification to the parties, without invoking any matter prior to the adoption of that order, hitherto unknown to the Court of First Instance and to herself, and which, had the Court of First Instance been able to take it into consideration, could have led it to a different determination of the proceedings. By so doing, she assimilates the revision procedure to an appeal procedure. All of the pleas invoked by the applicant for revision, based on the alleged irregularity of the procedure followed by the Court of First Instance, fall within the scope of an appeal (see Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission, paragraphs 24 and 25).
42 In this case, moreover, the applicant for revision has lodged an appeal against the order of 5 November 2008 (Case C-29/09 P). The fact that the procedural defects which she alleges in this case do not appear in the appeal, as she states in her application for revision (see paragraph 12 above), is however completely irrelevant to an assessment of the admissibility of the latter.
43 In this case, it is sufficient to note that the conditions which Article 44 of the Statute of the Court of Justice imposes for an application for revision to be admissible are clearly not fulfilled (see paragraphs 39 and 40 above).
44 Therefore, the application for revision must be dismissed in its entirety as clearly inadmissible.
45 There is therefore no need to adjudicate on the applicant’s application for measures of organisation of procedure, requesting that the Court of First Instance send her a list and the description of the documents contained in the files for Cases T-213/08 and T-213/08 AJ (see paragraph 23 above).
46 Moreover, having regard to the clear inadmissibility of the application for revision, it is also unnecessary to rule on the applications by the applicant for revision that the Court of First Instance should, first, order the ULB and the Commission to produce all administrative and accounting documents relating to Contract No 038950 (MEIF CT/2007 038950) and, secondly, appoint an expert in order to determine, inter alia, the whole of the amounts due from the ULB to the applicant under that contract.
47 As for the applicant’s claim that the Court of First Instance should send her a certified copy of each page of the order of 5 November 2008 (see paragraph 23 above), it is sufficient to note that, in accordance with the provisions of Article 100 of the Rules of Procedure, that order was properly served on her by the sending of a copy, established and certified by the Registrar, by registered post with a form for acknowledgement of receipt, which, moreover, the applicant does not deny having received. This claim must therefore also be dismissed.
48 Finally, since the present application for revision is clearly inadmissible, the application for legal aid submitted by the applicant for revision must be dismissed, pursuant to Article 94(3) of the Rules of Procedure.
Costs
49 Since the present order is being made before the notification of the application to the defendants and before they have been able to incur costs, it is sufficient that the applicant for revision be ordered to bear her own costs, in accordance with Article 87(1) of the Rules of Procedure.
On those grounds,
THE COURT OF FIRST INSTANCE (Sixth Chamber)
hereby orders:
1. The application for revision is dismissed as inadmissible.
2. The application for legal aid is dismissed.
3. Mrs Daniela Marinova shall bear her own costs.
Luxembourg, 31 July 2009.