T-14/89

ORDER OF 4. 11. 1992 — CASE T-14/89 REV

ORDER O F T H E COURT O F FIRST INSTANCE (First Chamber) 4 November 1992 *

In Case T-14/89 REV,

Montecatini SpA, previously Montedipe SpA, a company governed by Italian law, established in Milan (Italy), represented by G. Celona and G. Aghina, of the Milan Bar, and by P. Ferrari, of the Rome Bar, with an address for service in Luxembourg at the Chambers of G. Margue, 20 Rue Philippe II,

applicant,

v

makes the following

* Language of the case: Italian.

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MONTECATINI v COMMISSION

Order

1 By application lodged at the Registry of the Court of First Instance on 11 June 1992, Montecatini SpA (hereinafter 'Monte') sought, pursuant to Article 41 of the Protocol on the Statute of the Court of Justice of the EEC (hereinafter 'the Statute of the Court') and Article 125 of the Rules of Procedure of the Court of First Instance (hereinafter 'the Rules of Procedure'), revision of the judgment delivered by the Court of First Instance on 10 March 1992 in Case T-14/89 Montedipe v Commission [1992] ECR II-1155 (hereinafter 'the judgment of 10 March 1992').

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ORDER OF 4. 11. 1992 — CASE T-14/89 REV

4 The defendant contends that the Court of First Instance should:

(1) declare the application for revision of the judgment of 10 March 1992 in Case T-14/89 Montedipe v Commission inadmissible on the ground that it does not specify the new fact on which it is based and in any event because there is nothing new about the alleged fact;

(2) order the applicant to pay the costs.

5 In support of its application, Monte states that it became aware, from the Financial Times of 28 February 1992 and the Corriere della Sera of 29 February 1992, of the reactions prompted within the Commission by the judgment of 27 February 1992 in Joined Cases T-79/89, 84/89, 85/89, 86/89, 89/89, 91/89, 92/89, 94/89, 96/89, 98/89, 102/89 and 104/89 BASF and Others v Commission [1992] ECR 11-315 (hereinafter 'the PVC judgment'). Certain statements by the Commission raised the fear that the practice criticized in the abovementioned judgment by the Court of First Instance had been extensively engaged in by the Commission, in particular in competition matters, thus affecting not only the adoption of the decisions in the PVC and LDPE cases but also several other decisions adopted by the Commission, such as that with which the judgment of 10 March 1992 was concerned. That prac- tice consisted in treating decisions whose text was as yet incomplete, or which were still liable to be amended, or even were not yet available in all the languages in which they were binding, as having been 'adopted' by the Commissioners collec- tively.

9 In considering the admissibility of this application, it should be borne in mind that pursuant to the first paragraph of Article 41 of the Statute of the Court of Justice, which applies to proceedings before the Court of First Instance by virtue of the first paragraph of Article 46 thereof,

'An application for revision of a judgment may be made to the Court only on dis- covery 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 revision.'

10 It is apparent from that provision that revision is not an appeal procedure but an exceptional review procedure that allows an applicant to call in question the auth- ority of res judicata attaching to a final judgment 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 (see most recently the order of the Court of Justice in Case C-185/90 P-REV Gill v Commission [1992] ECR I-993 and the order of the Court of First Instance in Case T-4/89 REV BASF v Commission [1992] ECR II-1591).

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ORDER OF 4. 11. 1992 — CASE T-14/89 REV

1 1 In this case, the Court finds, first, that the only fact relied on by the applicant in support of its application consists of the Commission's statements reported in the press on 28 and 29 February 1992 and, secondly, that the applicant relied on that same fact in support of its request that the oral procedure be re-opened, which it submitted to the Court of First Instance on 6 March 1992, that is to say before delivery of the judgment of 10 March 1992 which it seeks to have revised and against which it has lodged an appeal before the Court of Justice.

On those grounds,

THE C O U R T O F FIRST INSTANCE (First Chamber)

hereby orders:

1. The application for revision is dismissed as inadmissible.

2. The applicant is ordered to pay the costs.

Luxembourg, 4 November 1992