Case T-87/08 REV Guardian Industries: Revision of judgment and appeals

Revisions of judgments are not very common. It is possible though, pursuant to Article 44 of the Statute and Article 125 of the Rules of Procedure, to ask the General Court to revise a judgment that has already become final and definitive (res judicata). The conditions that have to be met to obtain revision are strict, as you will see from this order in Case T-82/08 REV Guardian Industries and others v Commission EU:T:2014:693.

In this case, the applicants wanted the General Court to revise its judgment of 27 September 2012 in Case T-82/08 Guardian Industries v Commission EU:T:2012:494. In that judgment, the General Court dismissed an application to annul a competition decision in which the Commission fined them €148 million for participating in a cartel. The applicants also appealed that judgment in Case C-580/12 P which is still pending (but the AG’s opinion is out: EU:C:2014:272).

In their application for revision, the applicants claimed that the Commission misrepresented the evidence in its administrative file regarding the relationship between prices for captive sales of flat glass and for sales to independent customers in the proceedings before the General Court. They claimed they only became aware of this during the procedure for the appeal before the Court of Justice because they submitted that the Commission took a position in those proceedings (in the Commission’s response to the appeal) which claim contradicts the position adopted by the Commission during the proceedings before the General Court. That change of position, according to the applicants, constituted a misrepresentation of the evidence in the Commission’s administrative file and a new fact of which they and the General Court were unaware.

The General Court held that the application for revision was manifestly inadmissible.

The question arose whether the “manifestly inadmissible” procedure could apply to such an application for revision. The Court held that it could. Pursuant to Article 111 of the Rules of Procedure, where an action is manifestly inadmissible, the General Court may, by reasoned order, without taking further steps in the proceedings, give a decision on the action, it being specified that that article applies to all actions brought before the General Court, including exceptional applications such as applications for revision (Order in Case T‑4/89 REV BASF v Commission EU:T:1991:73, paragraph 17, and order of 16 April 2012 in Joined Cases T‑40/07 P-REV and T‑62/07 P-REV de Brito Sequeria Carvalho v Commission, EU:T:2012:182, paragraph 10).

In the present case, the Court considered that it had sufficient information from the documents before it and has decided, pursuant to that article, that there is no need to take any further steps in the proceedings.

In assessing the admissibility of the present application for revision, it held that, under the first paragraph of Article 44 of the Statute of the Court of Justice, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 of that statute, an application for revision of a judgment may be made only on discovery of one or more facts which are of such a nature as to be a decisive factor, and which, when the judgment was given, were unknown to the Court seised and to the party claiming the revision. Under the second paragraph of that Article 53, it is only where the Court finds that a new fact exists, recognises that it is of such a character as to lay the case open to revision and declares the application admissible on that ground that it can examine the substance of the case.

According to settled case-law, revision is not an appeal procedure: it is an exceptional review procedure that allows the authority of res judicata attaching to a final judgment to be called in question on the basis of the findings of fact relied upon by the Court. Revision presupposes the discovery of facts which existed before the judgment and which were unknown at that time to the Court which delivered the judgment 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. Moreover, in the light of the exceptional nature of the revision procedure, the conditions governing the admissibility of an application for revision of a judgment are to be interpreted strictly (judgment of 2 April 2009 in Case C‑255/06 P-REV Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission, EU:C:2009:212, paragraphs 16 and 17 and the case-law cited) (Disclaimer: Xavier was agent for the Commission in that case).

The Court found that in the present case, the applicants claim that the Commission put forward a new line of argument on the meaning of certain documents in the file.

The Court also held  that the applicants themselves concede that they had access to all the relevant documents in the file before they brought their application for annulment of the contested decision before the General Court. They were therefore able to rely on those documents in support of their arguments, including in order to claim that the Commission had misrepresented the record in the contested decision, or was misrepresenting it before the General Court. Any misrepresentation by the Commission of the content of the administrative file cannot be regarded as a fact which was unknown to the applicants.

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