Court of Justice of the European Communities (including Court of First Instance Decisions)

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URL: http://www.bailii.org/eu/cases/EUECJ/1971/C5670.html
Cite as: [1971] EUECJ C-56/70

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61970J0056
Judgment of the Court of 21 January 1971.
Fonderie Acciaierie Giovanni Mandelli v Commission of the European Communities.
Case 56-70.
European Court reports 1971 Page 00001
Greek special edition 1969-1971 Page 00673

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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-AVOUE, CENTRE LOUVIGNY, 34/B/IV, RUE PHILIPPE-II, APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER ITALO TELCHINI, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ITS LEGAL ADVISER, EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

APPLICATION FOR REVISION OF THE JUDGMENT GIVEN BY THE COURT ON 8 FEBRUARY 1968 IN CASE 3/67 BETWEEN THE SAME PARTIES,

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 COMPETENT 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 AUTHORITY 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 .
6 THE APPLICANT KNEW AT THE PROPER TIME OF THE AUDIT CARRIED OUT IN ITS UNDERTAKING 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 ACCORDANCE 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 FACTS, 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 PRODUCTION, UNDER ARTICLE 24 OF THE STATUTE, OF THE DOCUMENT IN QUESTION AND ANY OTHER RELEVANT INFORMATION IN THE HANDS OF THE 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 .

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 .

THE COURT
HEREBY :
1 . DISMISSES THE APPLICATION FOR REVISION AS INADMISSIBLE;
2 . ORDERS THE APPLICANT TO PAY THE COSTS .