C-2/98

* Original language: German. 1 — The appellant is also referred to by name, or as 'the applicant' where the context so requires. 4 — Case T-26/89 (cited in note 3). paragraph 11. 2 — Case T-26/89 (125) De Compte v Parliament [1997] ECR-SC 5 — Case T-26/89 (cited in note 3). IA-305 and 11-847. 6 — Ca5eC-326/91PűeCom/)ícvi , <ir/Mi»c»l[1994]ECRI-2091, 3 — Case T-26/89 De Compte v Parliament [1991] ECR 11-781 paragraph 2.

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Midland Bank, London, on 21 July 1981 4. The Court of Justice referred to the find- with the amount of UK £400 000 bearing ings of the Court of First Instance as fol- 16 % annual interest without prior autho- lows: 8 risation, accounting entries relating to those operations or entries regarding interest in the Parliament's accounts for 1980 and 1981;

(c) failure to comply with the obligation imposed on the accounting officer to effect expenditure only on production of proper supporting documentation and to ensure 196 So far as the first question is concerned, the safeguarding of the Parliament's assets it must be pointed out that the appointing (absence of supporting documentation authority gave reasons for the conclu- relating to the sum of BEF 4 100 000 sion reached in its disciplinary decision missing from the Parliament's funds).' by relying on the following findings. The balance of the "Belgian franc cash fund" account at the end of the 1981 financial year corresponded to the amount of the balance indicated on the "Belgian franc As the Court of First Instance again pointed cash fund" accounting form at the time out in its judgment of 1997, the complaint of the examination carried out by the against Mr de Compte therefore concerned Court of Auditors on 18 March 1982. not the loss of cash but solely the absence of The Parliament's accounting books supporting documents. 7

8 — The Court sets out in full paragraphs 195, 196 and 200 to 206 of the judgment of the Court of First Instance of 17 October 7 — Case T-26/89 (125) (cited in note 2), paragraph 49. 1991 (cited in note 3).

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C — Factual context of the application for sible by the Court of First Instance. 10 The revision Court took the view that the conditions for revision — the existence of decisive facts which at the time when the judgment was delivered were unknown to the Court and to the party seeking revision — were not met. The facts on which Mr de Compte relied were 5. O n 28 June 1995 — that is to say, after the mere claims, assumptions and personal assess- Court of Justice delivered its judgment of 2 ments on the part of Mr Pasty. The Court June 1994 upholding the judgment of the also dismissed the application for revision on Court of First Instance of October 1991 — the ground that the evidence relied on could Jean-Claude Pasty, a Member of the Parlia- not ultimately lead the Court to a different ment and Rapporteur for the Parliament's determination of the proceedings. The facts Budgetary Control Committee, drew up a relied on were in part facts which were already draft report providing for discharge in regard known to Mr de Compte at the time of the to the implementation of the Parliament's earlier proceedings and for which he failed to budget for the 1993 financial year. In his produce supporting evidence, as required report Mr Pasty referred to the case of the under the Rules of Procedure, or they were members' cash office. When the Budgetary not expressed in a sufficiently clear and pre- Control Committee met in September 1995, cise manner to enable the defendant to pre- it adopted the draft report, but without the pare its defence and the Court to determine section relating to the case of the members' the application for review. n cash office, which Mr Pasty had withdrawn.

— refer the case back to the Court of First 10. Article 168a(l) of the EC Treaty provides Instance for a decision on the application that judgments of the Court of First Instance for revision of the proceedings; arc subject to a right of appeal to the Court of Justice on points of law only. The relevant requirements arc described in more detail in Article 51 of the EC Statute of the Court of Justice (hereinafter 'EC Statute'), which is worded as follows: — order the Parliament to pay the costs of these proceedings and the proceedings before the Court of First Instance.

'An appeal to the Court of Justice shall be limited to points of law. It shall lie on the grounds of lack of competence of the Court 9. The Parliament contends that the Court of First Instance, a breach of procedure before should: it which adversely affects the interests of the appellant as well as the infringement of Com­ munity law by the Court of First Instance.

— declare the appeal manifestly inadmissible;

>

— in the alternative, declare it unfounded;

11. Revision is governed by Article 41 of the — make an order as to costs in accordance EC Statute, which comes under Title III 'Pro­ with the second subparagraph of Article cedure', which, pursuant to the first para­ 69(3) of the Rules of Procedure of the graph of Article 46 of the EC Statute, also Court of Justice. governs the procedure before the Court

13. The appellant first makes a number of general observations concerning the judgment of the Court of First Instance, and then pro- ceeds to analyse the judgment under appeal The revision shall be opened by a judgment on what he maintains is a paragraph-by- of the Court expressly, recording the exist- paragraph basis. ence of a new fact, recognising that it is of such a character as to lay the case open to revision and declaring the application admis- sible on this ground. 14. H e examines, in particular, the letter from Mr Pasty, on which the application for revi- sion of the proceedings primarily relied. H e stresses Mr Pasty's level of authority and his y role, above all, as Rapporteur for the Parlia- ment's Budgetary Control Committee, which meant that, when he wrote the letter in ques- tion, he had unrestricted access to all the accounting documents of the administration. O n the basis of a detailed examination, 12. According to Article 126(1) of the Rules Mr Pasty had concluded in his letter that the of Procedure of the Court of First Instance, complaints against the appellant were an application for revision must, inter alia, unfounded. The letter therefore constitutes a new fact which is of such a nature as to be a decisive factor.

c

15. According to the appellant, the Court of First Instance should have regarded this docu- ment, which was never challenged in any way, as having the same probative value in the (c) set out the facts on which the application revision proceedings as had been accorded in is based; the earlier proceedings to statements made

17. Mr Pasty's letter must be examined as a whole. The Court of First Instance erred, therefore, in failing to examine its funda­ 21. First, the Parliament refers to Article 168a mental conclusion which, according to the of the E C Treaty and Article 51 of the EC appellant, constitutes in itself a new fact, Statute, which provide that an appeal is to be namely, that there are no grounds for the limited to points of law. Article 41 of the E C complaints against him. Statute provides that revision, however, is possible only on discovery of a (new) fact, and Article 127(2) of the Rules of Procedure of the Court of First Instance provides that a ruling must first be given on the admissibility 18. Denying that these considerations have of an application for revision, without preju­ any relevance before examining them is equiv­ dice to the decision on the substance. Accord­ alent to refusing to hear a witness who is pre­ ingly, the Parliament maintains that the Court pared to attest to the innocence of a person of First Instance only examines the facts convicted of a criminal offence such as murder. without addressing points of law.

12 — Case 1/60 Acciaieria Ferriera di Roma v High Authority [I960] ĽCR 165, Casc 28/64 Rev. Müller v Council [1967] ECR 141, order in Case T-4/89 Rev. BASI' v Commission 19. Lastly, the appellant refers to a number of [1992] ECR II-1591, order in Case T-8/89 Rev. DSM v Commission [1992] ECK 11-2399, and Case C-403/85 Rev. judgments and orders of the Court of Justice ľerrandiv Commission [1991] ECR 1-1215.

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23. In the present case the Court of First Instance decided in its judgment of 5 November 1997 that the true purpose of the 25. As regards the significance of Mr Pasty's application for revision was to obtain from letter, the Parliament refers to the implica- that Court a fresh assessment of facts which tions of res judicata. N o opinions, assertions, were already known, and therefore of the evaluations, interpretations or similar views merits of the judgment, which had meanwhile concerning a case which has been closed and acquired the force of res judicata. The Parlia- which has acquired the force of res judicata ment maintains that, by this appeal, the appel- can be taken into consideration. Mere asser- lant hopes to obtain from the Court of Jus- tions, unsubstantiated by evidence, do not tice a reappraisal of the facts adduced before constitute new facts capable of justifying the the Court of First Instance. Since, accord- special procedure of revision. If it were pos- ingly, the appeal relates to facts, not points of sible, on the basis of personal opinions, to law, it must be declared inadmissible. reopen every case which has been closed, the principle of legal certainty would cease to have any meaning. In that regard, the Parlia- ment refers to Article 126(d) of the Rules of Procedure of the Court of First Instance, which provides that an application for revi- 24. Next, the Parliament points out that the sion must indicate the nature of the evidence limits to the admissibility of an appeal are to show that there are facts justifying revision defined in Article 51 of the EC Statute. Fur- of the judgment. thermore, Article 112(l)(c) of the Rules of Procedure of the Court of Justice provides that an appeal is to contain the pleas in law and legal arguments relied on. In the present case, however, no breach of a legal rule is alleged. The appeal contains no legal argu- ment but merely challenges the assessment by 26. As regards the appellant's assertion that the Court of First Instance of the facts of the he was not given an opportunity to produce application for revision. The appellant analyses his evidence, the Parliament points out

that he, too, had access to all the documents Statute. The questions to be determined, there- and that all means of presenting a defence fore, are whether the assessment made by the were available to him. Court of First Instance was consistent with Article 41 of the EC Statute; whether the facts submitted by the applicant were new; and whether they were previously unknown and of such a nature as to be decisive factors. 27. Lastly, the Parliament points out that the paragraph in Mr Pasty's report on the Mem- bers' cash office is not an official document — since it was withdrawn by the Rapporteur and was therefore not put to the vote — and, accordingly, there is no need to comment on it. As the Court of First Instance also observed, the letter which Mr Pasty subsequently sent to the Director-General merely reflects Mr Pasty's personal opinion. The Parliament 29. While the appellant states that the Court therefore sees no reason to comment on that of First Instance erred in its interpretation of opinion. certain expressions which it was required to examine, a number of questions of law must also be reviewed. Accordingly, the question is not only whether the Court of First Instance was correct in refusing to class certain facts as F —- Findings new facts, but also whether its interpretation of the expression 'new facts' within the meaning of Article 41 of the EC Statute was too narrow. That is a question of law. Review by the Court of Justice may also prove neces- Admissibility of the appeal sary in relation to the interpretation of the expression 'decisive', for example where it is alleged that a provision has been incorrectly applied. For those reasons, it cannot be assumed that an appeal is by definition inad- 28. As regards the question of admissibility, missible if brought against a judgment of the it is not a foregone conclusion that, when Court of First Instance declaring an applica- called upon to determine an appeal against a tion for revision inadmissible on the ground judgment dismissing an application for revi- that no new facts exist. sion on the ground that no new facts exist, the Court will not have to determine points of law. What is at issue here is not the way in which the Court of First Instance assessed a fact as such, since that falls within its exclu- sive jurisdiction, 13 but the way in which it interpreted and applied Article 41 of the EC

do not in themselves constitute new facts. He have led it to a different determination of the takes the view, however, that Mr Pasty's letter proceedings.' 14 — taken as a whole, including the conclusion reached therein, which contradicts the Parlia- ment's conclusion ·—· must be regarded as a new fact within the meaning of Article 41. In support of his submission he refers to the case-law of the Court of Justice, from which he infers that not only the new fact in itself, 32. Although the appellant emphasises the but also the substantiating evidence, is to be special nature of the document, namely the regarded as a new fact within the meaning of special position and role of its author, and Article 41 of the EC Statute. Similarly, his also the detailed analysis and the conclusion argument that case-law requires that the drawn therein, that does not justify rescinding expression 'fact' be given a broad interpreta- the authority of res judicata acquired by the tion must be taken to mean that he is chal- judgment. N o r does the fact that the content lenging the Court of First Instance's interpre- of the letter has not so far been challenged. tation of Article 41 of the EC Statute, not just its assessment of the facts. Whether the same applies to all the arguments which he raises in his detailed analysis of the judgment under appeal will be examined below, point by point. It must be stated, however, that the appeal cannot be dismissed at the outset as clearly inadmissible; rather, it must be declared admis- 33. The appellant himself states that the mat- sible. ters dealt with in the letter are not in them- selves new. In invoking the points raised in order to invalidate the Parliament's findings and to prove that the accusations are unfounded, the appellant is relying, as he himself concedes, on assertions. That is not in The substance of the appeal itself sufficient, however, to rescind the authority of res judicata acquired by an existing judgment. O n the contrary, those assertion must be substantiated.

the Court of First Instance reached its deci- were actually in the form of documents. 10 sion on that basis. Furthermore, the judgment Furthermore, in one case the classification of is not based solely on the statements made by a post was attested by a notice of vacancy the Parliament and the Court of Auditors. which contained a decision to that effect During the proceedings, the appellant was adopted by the Secretary-General. I7 In also given the opportunity to comment on another case a certain practice of the Com- the accusations against him. The Court of mission was attested by statements made by First Instance found that the contested mea- Commission officials at a hearing; and evi- sure was not inadequately reasoned and that dence of that statement was in turn adduced it was not vitiated by a manifest error, in fact in the form of the tape-recording made of the or in law, or by an abuse of power, concepts hearing. l s As evidence of amendments which which represent the limits of the examination had apparently been made to a written docu- of the legality of an administrative measure ment, the document itself was produced. I9 It by a court which has jurisdiction to annul the can therefore be stated that, irrespective of measure. I 5 whether they arc regarded as new facts or as evidence of those facts, official documents or statements were produced or attested to in substantiation of the alleged new facts.

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38. In the present case, the document put G — Appellant's analysis of the judgment of forward is not an official document, but a the Court of First Instance private letter reflecting Mr Pasty's personal opinion. Moreover, his assessment of the facts is not comparable with an expert opinion. Since, as we have seen, the legal assessment of facts by the Court of Justice cannot be regarded as a new fact, a fortiori Mr Pasty's personal evaluation, which he did not provide Point 1 in his capacity as Rapporteur but as a private individual, cannot be regarded as a new fact.

Facts and submissions

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Observations signed by the European Parliament's Director of Finance in February 1982.

The appellant's submission that Mr Pasty's letter contains the first indication in writing that he was unable to put the accounts in order does not disclose a new fact. The cir- cumstance in itself is not new: not only the appellant but the Court of First Instance, too, was aware of when he was transferred and knew he was subsequently unable to carry out any controls or checks. N o r is that cir- cumstance a decisive factor. The fact that it 44. The Court of First Instance found, how- has now been set out in writing by Mr Pasty ever, that it was apparent from the receipt in in his personal letter docs not make it a new question only that it was dated May 1982 by fact which would justify revision of the judg- the person who drew it up and that it was ment. also signed by the Director of Finance in May, that is to say, after the Midland Bank had informed the Parliament of the existence of the account. The Court of First Instance con- cluded that the alleged new fact was not in 42. As regards the complaints that the admin- any event susceptible of inducing it to reach istration had drawn up new documents, these a different conclusion from the one reached are allegations which are not supported and in the judgment of October 1991. therefore do not constitute sufficient grounds for revision.

Point 2

48. The Parliament points out that the Court of First Instance denied the existence of a new fact not solely for lack of evidence but also because the question regarding an alleged Point 3 cash surplus of BEF 11 772 had already been raised by the applicant during the procedure leading to the adoption of the disciplinary decision. The Court of First Instance also pointed out that the applicant had had the Facts and submissions opportunity at that time to challenge the fig- ures relied upon by the Court of Auditors.

47. The appellant further criticises the Court of First Instance for failing to take into con- sideration Mr Pasty's statement that he had not found a single accounting document attesting to a cash surplus of BEF 14 552, as Findings claimed by the Court of Auditors, but only a document indicating a surplus of BEF 11 772. The Court of First Instance held that the applicant (that is, the appellant in these pro- ceedings) had failed to submit that document in support of his application as required under Article 126(l)(d) of the Rules of Procedure. The appellant considers that the error on 49. I must agree with the Parliament. The application for revision was rejected not only 22 — Case T-26/89 (125) (cited in note 2), paragraph 21. for lack of evidence but also because of

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the lack of a new fact. As far as the ques­ Findings tion of the amount of the actual cash surplus is concerned, it is by no means certain that this is a decisive factor.

Point 4

24 — Paragraph Ί1 of tiic later. 25 — Paragraph 71 of the letter. 23 — Case T-26/89 (125) (cited in nolo 2), paragraph 23. 26 — Case T-26/89 (125) (cited in note 2), paragraph 35 et seq..

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Thus, the judgment of the Court of First called in question as wrong in law. The Instance is not open to criticism in this respect. Court held that the applicant had not met the obligation laid down in Article 162(l)(c) of the Rules of Procedure in that he failed to specify the facts on which his application for revision was based. The Court referred to the Point 5 case-law and held that the particulars of the new facts alleged must be sufficiently clear and precise, in order {inter alia) to enable the opposite party to prepare its defence and the Court to give judgment on the application. 29 Facts and submissions

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57. The appellant refers to paragraphs 170 to the absence of supporting documents was 180 of the letter, in which Mr Pasty states connected in this case to the encashment of that the Court of Auditors relied on incor- the two cheques drawn on the Midland rect information. Since the appellant's obser- Bank.' 31 This shows that other theories to vations are not supported by other docu- explain the accounting discrepancy were also ments, however, they also constitute mere put forward and examined in the earlier judg- assertions. ment. In this regard, too, the existence of new facts has not been shown.

58. Mr Pasty also claims in his letter that, Point 6 speaking as an accountant, there is no indica- tion that the two cheques had caused the dis- crepancy in the accounts, since other circum- stances were equally capable of doing so. Facts and submissions

30 — Case T-26/89 (cited in note 3), paragraph 197. 31 — Case T-26/89 (cited in note 3), paragraph 201.

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suppositions or assertions, which do not have had been established by the Court of Audi- the weight of facts for which there is genuine tors, the Parliament and the Court of First legal certification but are challenged, as Instance and from which the conclusion had Mr Pasty's letter shows. been drawn that the Parliament had suffered economic loss. The appellant's accusations against those officials are therefore manifestly unfounded.

62. To deny that the Parliament's admission that it did not draw up a record has the value of a new fact would be equivalent to refusing an application for revision in criminal pro- ceedings even though the prosecution itself may in the meantime have established the 65. As regards the absence of a record, the accused's innocence. Parliament maintains that the appellant him- self acknowledges that this does not consti- tute a new fact. Furthermore, the Court of First Instance took the view that the submis- sions regarding the absence of a record were time-barred.

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Findings paragraphs of Mr Pasty's letter and therefore did not present in a sufficiently clear and pre- cise manner the facts on which he based the application for revision, and that it is not for the Court to search the submissions for the 67. As regards the question of the absence of alleged new facts. a record, it is not very clear what is supposed to constitute the new decisive fact. The absence of a record has indisputably already been invoked. The fact that this absence is now referred to by the Parliament itself can at the most constitute a new fact if that point had been strongly disputed and of great impor- tance to the decision. That does not appear to be the case, however. 70. The appellant again refers to the corre- sponding paragraph numbers and concludes by saying that his statements arc so clear that further research unnecessary. 68. As regards the accusation against the two officials, the very most that can be said is that a conviction for giving false evidence might constitute a new fact, but only if the Court of First Instance relied mainly on the evidence of those two officials in its 1991 judgment. That is not the position. The judgment also relies, for example, on the investigations and opinions of the Court of Auditors and the Disciplinary Board. 33 Findings

Point 7

Facts and submissions 71. It should be pointed out at the outset that the Court of First Instance observed in its judgment that under Article 126(l)(c) of the Rules of Procedure the new facts must be 69. Lastly, the appellant refers to the obser- presented in a sufficiently clear and precise vations of the Court of First Instance to the manner. The Court had previously examined effect that he had merely reproduced certain in detail the paragraphs of Mr Pasty's letter to which the appellant refers. The appellant has already criticised the Court's statements, to no avail, in the previous points of his 33 — Case T-26/89 (cited in note 3), paragraph 200. analysis. Accordingly, there is no need

73. The appellant also appeals against the 76. In proceedings between the Communities order for costs made by the Court of First and their servants Article 122 also provides, Instance. however, that by way of derogation from Article 69(2) of the Rules of Procedure the Court of Justice may, in appeals brought by officials or other servants of an institution, order the parties to share the costs where 74. Since in these proceedings all the other equity so requires. grounds of appeal must be rejected, all that remains is to determine the action challenging the costs. In such a case the second paragraph 34 — CaseC-396/93 PHeinrichsvCommission[l995]ECR1-2611, of Article 51 of the E C Statute provides that paragraphs 65 and 66, and order in Case C-140/96 P Dimi- triadis v Court of Auditors [1997] ECR 1-5635, paragraph an appeal regarding only the amount of the 56.

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77. In its pleadings the Parliament requested should be ordered to pay the costs, however, that an order for costs be made in accordance it may be concluded that the Parliament with the second subparagraph of Article 69(3), requested that the appellant be ordered to which provides that the Court may order a pay the costs in any event, therefore no doubt party, even if successful, to pay costs which even if he were successful. As the appellant the Court considers that party to have unrea- has been unsuccessful, however, he should be sonably or vexatiously caused the opposite ordered to pay the costs in accordance with party to incur. Since the Parliament stated in the first paragraph of Article 69(2). the body of its submissions that the appellant