ORDER OF THE COURT (Fourth Chamber)
11 December 2018 (*)
(Application for revision — Article 159 of the Rules of Procedure — Conditions — Appeal — No reliance on a new fact — Inadmissibility)
In Case C‑233/17 P-REV,
in which the applicant seeks revision of the order of 22 February 2018, GX v Commission (C‑233/17 P, not published, EU:C:2018:102), brought on 25 May 2018,
GX, residing in Bucharest (Romania), represented by G.-M. Enache, avocat,
applicant for revision,
the other party to the proceedings being:
European Commission, represented by G. Gattinara and P. Mihaylova, acting as Agents,
THE COURT (Fourth Chamber),
composed of M. Vilaras (Rapporteur), President of the Chamber, K. Jürimäe, D. Šváby, S. Rodin and N. Piçarra, Judges,
Advocate General: Y. Bot,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after hearing the Advocate General,
makes the following
Order
1 By his application, lodged at the Court Registry on 25 May 2018, GX applied, pursuant Article 44 of the Statute of the Court of Justice of the European Union, for revision of the order of 22 February 2018, GX v Commission (C‑233/17 P, not published, ‘the contested order’, EU:C:2018:102).
2 By that order, the Court, pursuant to Article 181 of its Rules of Procedure, dismissed in its entirety as being in part clearly inadmissible and in part clearly unfounded, the appeal brought by GX against the order of the General Court of the European Union of 3 March 2017, GX v Commission (T‑556/16, not published, EU:T:2017:139).
Background to the application for revision
3 In 2013, GX took part in an open competition organised by the European Personnel Selection Office (EPSO). The notice of competition, published in the Official Journal of the European Union on 31 January 2013 (OJ 2013 C 29 A, p. 1), was the subject of a corrigendum published on 3 April 2013 (OJ 2013 C 94 A, p. 1).
4 On 26 February 2014, EPSO informed him that the selection board had not included his name on the reserve list for the competition on the ground that he did not obtain the minimum number of points for tests organised in an assessment centre.
5 GX first submitted a request for a review of the decision communicated to him by EPSO on 26 February 2014. Following confirmation of that decision, by a new decision adopted on 20 August 2014, GX submitted a complaint, within the meaning of Article 90(2) of the Staff Regulations of Officials of the European Union, which was also rejected.
6 By application lodged at the Registry of the Civil Service Tribunal on 18 June 2015, the applicant brought an action seeking, first, annulment of the decision of 20 August 2014 and, secondly, compensation for the material and non-material damage he allegedly suffered as a result of that decision.
7 Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the case was transferred to the General Court.
8 By order of 3 March 2017, GX v Commission (T‑556/16, not published, EU:T:2017:139), the General Court dismissed the action for annulment, on the ground that the pleas raised in support of them were ineffective or manifestly unfounded and, consequently, also rejected the claim for compensation for the damage allegedly suffered by GX and the action of the latter in its entirety.
9 GX brought an appeal before the Court of Justice against that order in support of which he put forward two grounds of appeal. The first ground of appeal, divided into three parts, alleged ‘the illegality of the notice of competition’, ‘the illegality of the Assessment Centre fundamental principles’ and ‘the illegality of the corrigendum [published on 3 April 2013 (OJ 2013 C 94 A, p. 1)]’. The second ground of appeal, divided into two parts, alleges procedural irregularities during the course of the competition at the assessment centre.
10 For the reasons set out, respectively, in paragraphs 21 and 22 and paragraphs 26 and 27 of the order under appeal, the Court of Justice held that the first and second parts of the first ground of appeal were manifestly inadmissible on the ground that, by them, the applicant raised new arguments not argued before the General Court. Furthermore, the Court held that the third part of the first ground was manifestly ineffective, that the first part of the second ground was manifestly inadmissible and that the second part of that ground was, in part, manifestly inadmissible and, in part, manifestly unfounded. The Court, therefore, dismissed the appeal in its entirety.
Forms of order sought by the parties before the Court
11 GX asks the Court to set aside the order under appeal and, consequently, annul the decision of 20 August 2014, to order compensation for the material and non-material damage he suffered as a result of that decision and order the Commission to pay the costs.
12 The Commission contends that the Court should:
– dismiss the application for revision as manifestly inadmissible, or, in the alternative, as manifestly unfounded, and
– order GX to pay the costs.
The application for revision
Arguments of the parties
13 GX states that, since the Rules of Procedure of the Court of Justice do not foresee a manner of appeal against a procedural error of the Court of Justice when it adopts an order dismissing an appeal, only a review of the appeal by the Court could remedy such an error. He therefore asks ‘the Advocate General and/or the Judge-Rapporteur to analyse and enroll’ his request ‘in the manner that would be considered the most appropriate for the legal nature to [prevail] and to prevent the implementation of a grave error result[ing] from the erroneous implementation of the law’.
14 In that regard, GX argues that the Court erred in law in that it found that, by the first part of the first ground of appeal, GX raised before the Court a new argument which he could have raised before the General Court. GX emphasises that he had indicated that he was not introducing a new ground, but new arguments in support of his plea of illegality of the notice of competition.
15 Furthermore, GX claims that the Court erred, in that it considered that the second part of the first ground of appeal alleged the illegality of the recruitment principles governing EPSO competitions. According to him, that part alleged illegality, lack of validity and scientific foundation of the Assessment Centre fundamental principles and, more specifically, of the fundamental principles governing EPSO open competitions. The Court of Justice had therefore omitted to rule on the actual ground that he had raised.
16 The Commission submits that the application for revision is manifestly inadmissible, since GX submits no new fact.
Findings of the Court
17 Pursuant to Article 44 of the Protocol on the Statute of the Court of Justice of the European Union, ‘an application for revision of a judgment may be made to the Court of Justice 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’.
18 Furthermore, pursuant to Article 159(1) of the Rules of Procedure, an application for revision of an order may be made only where the conditions laid down in Article 44 of the Statute, relating to the discovery of a fact unknown to the Court and to the party claiming the revision, which is of such a nature as to be a decisive factor, are fulfilled.
19 According to consistent case-law of the Court of Justice, revision is not an appeal procedure but an exceptional review procedure that allows the authority of res judicata attaching to a final judgment or to an order made pursuant to Article 181 of the Rules of Procedure to be called into 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 or the order and which were unknown at that time to the Court which delivered the judgment or the order 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 (judgment of 2 April 2009, Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission, C‑255/06 P-REV, not published, EU:C:2009:212, paragraph 16 and the case-law cited).
20 Furthermore, it is apparent from Article 159(5) of the Rules of Procedure that, in the case of an application for revision, without prejudice to its decision on the substance, the Court, after hearing the Advocate General, is to give in the form of an order its decision on the admissibility of the application, having regard to the written observations of the parties.
21 In the present case, it is clear that GX puts forward no new fact capable of justifying an application for revision of the order under appeal. On the contrary, by his own admission, he seeks, by his request, the annulment of the order under appeal, on the ground that the Court’s reasoning set out in that order is vitiated by errors.
22 However, as is apparent from the case-law cited in paragraph 19 of the present order, revision is not an appeal procedure, which can, in the absence of any new fact, call into question the legal assessments made by the Court, which have the authority of res judicata.
23 Under those circumstances, in accordance with Article 159(5) of the Rules of Procedure, the present application for revision must be dismissed as inadmissible.
Costs
24 Under Article 138(1) 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. Since the Commission has asked for costs and GX has been unsuccessful, he must be ordered to pay the costs.
On those grounds, the Court (Fourth Chamber) hereby:
1. Dismisses the application for revision brought by GX;
2. Orders GX to pay the costs.
Luxembourg, 11 December 2018.
A. Calot Escobar
M. Vilaras
Registrar
President of the Fourth Chamber
* Language of the case: English.