C-56/70
ECLI:EU:C:1971:4
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JUDGMENT OF THE COURT 21 JANUARY 19711
Fonderie Acciaierie Giovanni Mandelli
v Commission of the European Communities
Case 56/70
In Case 56/70
FONDERIE ACCIAIERIE GIOVANNI MANDELLI, a partnership with limited liability having its registered office in Turin, represented by Mario Giuliano, Advocate of the Milan Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, avocat-avoué, Centre Louvigny, 34/B/IV rue Philippe-II,
applicant,
v
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser Italo Teichini, acting as Agent, with an address for service in Luxembourg at the Chambers of its Legal Adviser, Émile Reuter, 4 boule vard Royal,
defendant,
Application for revision of the judgment given by the Court on 8 February 1968 in Case 3/67 between the same parties,
THE COURT
composed of: R. Lecourt, President, A. M. Dormer and A. Trabucchi, Presidents of Chambers, R. Monaco, J. Mertens de Wilmars, P. Pescatore (Rapporteur) and H. Kutscher, Judges,
Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
1 — Language of the Case : Italian.
JUDGMENT OF 21. 1. 1971—CASE 56/70
JUDGMENT
Issues of fact and of law
I — Facts and procedure decisions adopted on 7 December 1966 by the High Authority in re By an application lodged on 28 January spect of the applicant, for the reasons 1967, the Mandelli undertaking asked which the latter has already put for the Court to annul two individual de ward in Case 3/67 and for all other cisions of the High Authority of the reasons which it reserves the right to ECSC dated 7 December 1966, the first put forward at the proper tíme and fixing the tonnage of bought scrap con place; sumed by the applicant undertaking for — order the defendant to pay the costs the period from 1 February 1957 to 30 of both proceedings. November 1958, and the second demand The Commission contends that the Court ing payment from it of the sum of should: Lit. 137 910 340 by way of contributions to the equalization scheme. — declare out of time or in any case The Court by judgment of 8 February inadmissible the application for revis 1968 ([1968] ECR 25) dismissed the ap ion of the judgment of 8 February plication as unfounded and ordered the 1968 given between the parties; applicant to pay the costs. — order the applicant to pay the costs. On 14 September 1970 the applicant undertaking in application of Article 38 of the Statute of the Court of Justice of III — Submissions and argu the ECSC made an application for the ments of the parties revision of the said judgment. The Commission submitted its observa The applicant for revision relies in sup tions on that application on 21 October port of its request on the fact that it 1970. was informed on 16 July 1970, by way of notarially attested extracts, of a report on the audit made from 20 April to 1 II — Conclusions of the July 1969 by two officials of the Italian parties financial departments concerning its declaration of income for the financial The Mandelli undertaking claims that year 1958-1959. the Court should: This document confirms in particular that the declarations of consumption of — after recording the existence of a new ferrous scrap sent at the time to the fact and accepting that it is capable of High Authority were correct and that justifying the opening of the revision the undertaking had a complete system procedure, declare the application ad of accounting meeting the requirements missible and consequently reopen the of Italian law. procedure concerning the substance This report establishes 'the clear dispro of Case 3/67; portion and the complete lack of relation — after ordering, if necessary, the pre ship to reality' of the tonnage of assess paratory measures already requested able ferrous scrap which the High in Case 3/67 and possibly other Authority, following an assessment which measures which the Court considers it made on its own initiative, used as of its own motion to be necessary, the basis of the applicant's contributions annul completely the two individual to the equalization scheme.
MANDELLI v COMMISSION
The said report is thus claimed to con cedure are fulfilled; on the one hand, stitute a new fact capable of exercising the application was not made, as is re a decisive influence upon the case de quired by Article 98 of the Rules of cided by the judgment of the Court of Procedure, within three months of the 8 February 1968. date on which the applicant for revision The Commission maintains that in the received knowledge of the facts on which present case neither the conditions of it was based, and on the other hand, the form nor the conditions of substance fact relied upon is not capable of justify necessary for the admissibility of an ap ing a revision of the judgment of 8 plication for opening the revision pro- February 1968.
Grounds of judgment
1 The first paragraph of Article 38 of the Protocol on the Statute of the Court of Justice of the ECSC provides that: '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'.
2 According to the second paragraph of the same article: 'The revision shall be opened by a judgment of the Court expressly recording the existence of a new fact, recognizing that it is of such a character as to lay the case open to revision and declaring the application admissible on this ground'.
3 By way of a new fact the applicant has produced extracts from a report on the audit of the accounts carried out from 20 April to 1 July 1959, by the com petent financial authority, and dealing with the declaration of income of the undertaking for the financial year 1958-1959, a period coinciding partially with the period of contribution to the ferrous scrap equalization scheme taken into account by the decisions of the High Authority which were the subject of the disputes decided by the judgment of 8 February 1968.
4 According to the applicant, it is a question of an internal document of the Italian administration which came to its notice only on 16 July 1970. Upon that ground, the applicant alleges that this report of the audit constitutes a 'new fact', within the meaning of Article 38 of the Statute justifying the opening of proceedings for the revision of the judgment of 8 February 1968, although the applicant has not specified which parts of the report are to exercise a decisive influence.
5 In accordance with Article 38 of the Statute, it is appropriate to consider in the first place whether the communication by the competent financial author ity on 16 July 1970 of the 'audit report' may be regarded as the discovery of a fact unknown, before the pronouncement of the judgment of 8 February 1968, both to the Court and to the applicant itself.
JUDGMENT OF 21. 1. 1971—CASE 56/70
6 The applicant knew at the proper time of the audit carried out in its under taking by two officials of the financial administration over a long period.
7 It could not have been unaware of the nature and scope of that inquiry, which was intended to check the declaration of receipts of the undertaking with a view to assessment to income tax.
8 Although it is true that the audit report made on that occasion constitutes an internal document of the financial administration, the applicant, in accord ance with the legal requirements applicable, was given a 'report of facts ascertained', dated 1 July 1959, a copy of which was produced during these proceedings.
9 Thus the applicant could not have been unaware prior to the judgment of the Court of the existence in the hands of the competent financial authority of an audit report concerning three farts, that is to say, the amount of the receipts of the undertaking established from the sales invoices, the cost of raw materials checked by means of purchase invoices and the level of production of the undertaking.
10 Nothing prevented it at the time of the proceedings before the Court from taking the steps which resulted in the communication of that report on 16 July 1970.
11 In default of obtaining this information it could in any case have suggested that the Court should make a preparatory inquiry directed towards the pro duction, under Article 24 of the Statute, of the document in question and any other relevant information in the hands of tie Italian administration.
12 It appears, consequently, that the delivery of the document produced by the applicant in support of its application cannot be regarded as the discovery of a new fact within the meaning of Article 38 of the Statute.
13 The application must therefore be dismissed as inadmissible.
Costs
14 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.
The applicant has been unsuccessful in its submissions.
MANDELLI v COMMISSION
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the opinion of the Advocate-General; Having regard to Articles 24 and 38 of the Protocol on the Statute of the Court of Justice of the ECSC; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69, 98, 99 and 100 (1),
THE COURT
hereby :
1. Dismisses the application for revision as inadmissible;
2. Orders the applicant to pay the costs.
Lecourt Donner Trabucchi
Monaco Mertens de Wilmars Pescatore Kutscher
Delivered in the Deliberation Room in Luxembourg on 21 January 1971.
A. Van Houtte R. Lecourt Registrar President