OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 29 MAY 1962 (*1)

Mr President,

Members of the Court,

My opinion today deals for the first time in proceedings before this Court with an application originating third party proceedings, which according to the Statute and the Rules of Procedure of the Court of Justice is the prescribed remedy against judgments which have been given without the participation of the party concerned and which are prejudicial to that party's rights. Apart from the very important issues raised by the matter itself, which is ultimately concerned with the principle of the free movement of goods, this first case is of special importance, because for the purposes of the system of legal protection under the Treaty the admissible limits for reviewing judgments given by the Court must be defined. The main question will be whether third parties affected by a judgment must in principle avail themselves of the opportunity of taking part voluntarily in a pending action or, if they waive this remedy, whether they can in any case pursue their defence after the conclusion of the proceedings. It is clear that either solution entails procedural difficulties for the Court as well as for the parties concerned, and this will certainly not make the solution of the problem any easier.

The present application was lodged by the Government of the Kingdom of Belgium. It asks for the judgment in Joined Cases 9/60 and 12/60 to be varied in so far as it deals with the claim for compensation of the Vloeberghs company, that is, the application in Case 9/60.

The Court, as you know, dismissed that application and ordered the applicant to pay the costs. Certain findings in the grounds of judgment constitute according to the Belgian Government an infringement of its rights.

It therefore asks that these findings be varied. I will later on consider the exact wording of its conclusions.

The Vloeberghs company, the applicant in the original case, supports the view taken by the third party; it requests moreover that the judgment be varied so as to comply with its original conclusions.

The High Authority rejects both conclusions. It claims that the application originating third party proceedings must be dismissed as being inadmissible or at least as unfounded.

In presenting my opinion in this case I would like to stress to begin with that I have not changed in any way the view which I put forward on 19 April 1961 with regard to the original case. However it is my duty -which I will endeavour to carry out as objectively as possible — to examine today the new procedural aspects on the basis of the judgment already given.

Legal Discussion

I — On the admissibility of the application

The arguments which have been advanced refer to a large extent to the admissibility of the application originating third party proceedings. As the general conditions of admissibility and compliance with the time limit for bringing proceedings have no ground for any observations, two questions in particular must be examined:

—Was the third party unable to take part in the original case (Article 97 (l) (c) of the Rules of Procedure) ?

—Has the third party stated how the contested judgment is prejudicial to its rights?

The applicant refers in particular to Article 36 of the Statute of the Court of Justice of which the French text alone is authentic and which ends with the following words:

‘peuvent, … former tierce opposition contre les arrets rendus sans qu'elles aient été appelées’.

The applicant concludes from this that in each case it is open to those persons who have not taken part in the original case to institute third party proceedings. As the Statute has precedence in law over the Rules of Procedure, the latter should, for the sake of their legal validity, be interpreted as far as possible in accordance with the Statute.

There are many points which could be taken with regard to this line of argument, but it is only the legal position of third parties who have not taken part in the proceedings which we must examine.

It is clear that the Rules of Procedure do not contain any provisions for the compulsory joinder of third parties. By compulsory joinder of third parties in this connexion I mean ‘intervention forcee’ (‘compulsory intervention’) as it is understood in French law. There is no doubt that there can be no compulsory joinder of third parties without explicit rules, for it needs to be established precisely who is entitled to apply for the joinder of a third party (the Court of its own motion or upon application, or the parties themselves) and in what conditions it can occur. The introduction of such rules is certainly permissible under the system of the Treaty. It is however equally true that there is no requirement that provision shall be made for compulsory joinder of third parties. In particular, having regard to the importance of this procedure, it cannot be assumed that its introduction is prescribed incidentally in Article 36. There is another observation which must be made: the Statute, as well as the Rules of Procedure, provides for voluntary intervention in an action pending between other parties, if an interest in the result of the action is established (Article 34 of the Statute, Article 93 of the Rules of Procedure).

In view of the legal situation described above, and in particular having regard to the wording of Article 97(1) (c) of the Rules of Procedure (‘was unable to take part in’) (in the French version: ‘n'a pas pu participer’), the interpretation which makes a strong appeal is that of the High Authority, according to which third parties who could have taken part in the case by intervening are precluded from bringing an application originating third party proceedings.

The only remaining question therefore is whether this interpretation is compatible with Article 36 of the Statute.

The provisions of the Statute deal only with certain questions of principle for it is obvious that 45 Articles cannot make exhaustive provision for the procedural law of the Community. Article 44 of the Statute therefore authorizes the Court generally to adopt all provisions ‘necessary for applying and, where required, supplementing this Statute’. Article 36 repeats this authorization for the particular case of third party proceedings: the Rules of Procedure are to define in what cases and in what conditions objection may be made against a judgment which has already been given. Article 36 accordingly on the one hand accepts third party proceedings in principle and, on the other hand, confers wide powers on the Court. It must not be assumed that the words ‘sans qu'elles aient été appelées’ (‘without their being heard’) lays down in each case, even for third parties, the minimum conditions for the admissibility of applications originating third party proceedings, because compulsory joinder of third parties is not provided for by the Statute. I should like therefore to draw the conclusion from Article 36 that the Court is not precluded by the Rules of Procedure from widening or narrowing with some freedom the limits within which applications originating third party proceedings can be brought. If the Court has considered at the same time the possibility of voluntary intervention, it was with the understandable aim of referring parties who might be affected to the possibility of intervention in the first instance, in order to safeguard legal finality after a judgment has been delivered. This Article is in line with the provision applicable to the Belgian Council of State (Article 48 of the Decree of the Regent of 23 August 1948):

‘A person who has abstained from intervening voluntarily in a case of which he has had notice shall not be entitled to institute third party proceedings.’

It is in particular narrower and more rigid than French law according to which the following conditions apply:

‘Any person may institute third party proceedings in respect of a judgment which is prejudicial to his rights, provided that neither he nor those whom he represents were lawfully called upon to participate in the proceedings or were present at the hearing which gave rise to such judgment…’

(Article 55 of the Law of 22 July 1889.)

We can therefore conclude that Article 97 (1) (c) not only covers' compulsory intervention in an action, which according to our procedural law applies only to the defendant, but also the possibility of voluntary intervention.

If the question is asked whether the Belgian Government could have intervened in the original case, there is no doubt that according to the provisions in force (Article 34 of the Statute and Article 93 of the Rules of Procedure) the application to intervene would have been admissible. Having regard to the generous attitude known to have been taken by the Court in its previous decisions it would have been impossible to deny the Belgian Government a general interest in taking part in the proceedings, for, according to the object of the application, important domestic economic developments in Belgium and the scope and effect of the principle of the free movement of goods were at issue, and this has a special significance for Belgium as an important transit country for goods.

Actually however — and the applicant is right on this point — such a consideration is not sufficient. If every possibility, however remote and vague, of an injury to interests obliged interested parties to intervene, not only would they be overburdened by the necessity of following other people's lawsuits closely, but the Court would be threatened by a flood of possible interventions.

In order to establish a correct balance between interventions and third party proceedings it is indispensable to take certain considerations into account.

First the nature of intervention must be considered. It allows participation in another's lawsuit on condition that the conclusions of a party to the case are supported and in a manner which conforms with them. Our procedure does not provide for interpleader proceedings whereby a third party may pursue claims of his own against both parties to the principal action (cf. paragraph 64 of the German Code of Civil Procedure). It is possible therefore that the legal limits imposed on the intervener do not permit him to prevent an injury to his rights. In these circumstances, which certainly do not apply in this case, as a comparison of the legal issues in dispute with those in the previous action illustrates, intervention is not an effective way of protecting rights and cannot therefore be considered for the purpose of determining the admissibility of an application originating third party proceedings.

As third party proceedings are intended to remedy an injury to a right, the question must then be asked whether the injury was foreseeable and therefore could have led to intervention. This is the proper legal context for the applicant's argument that it could only have become aware of having a reasonable interest in taking part in the action once the High Authority had submitted certain arguments during the oral procedure in the original case. What the applicant has indicated as being the subject matter of the dispute in Case 9/60 is published in the Official Journal of the European Communities of 25 May 1960 (page 808):

‘The application is brought against the Community for pecuniary compensation for damage suffered by the applicant and caused by the alleged wrongful act or omission on the part of the Community in the course of implementing the Treaty. The wrongful act or omission is said to consist in the refusal or at least the prolonged failure of the High Authority, in spite of the applicant's requests, to take, with regard to the Government of the French Republic and/or the “Association technique de l'importation charbonnière” (ATIC), a public body under the supervision of the French State, the measures laid down in the Treaty in order to compel them to observe the principle of the free movement within the Common Market of coal originating in third countries, which is or in any event was in free circulation in a Member State, and to effect the withdrawal of the prohibition repeatedly imposed in the years 1957, 1958 and 1959 by the French authorities with regard to French importers and/or business undertakings on the conclusion of sales agreements with the applicant for the delivery of such coal and in any case to bring to an end the systematic refusal of the French authorities to authorize the said agreements and to issue the relevant import licences.’

There was therefore every reason to expect in the judgment a discussion of the principle of the free movement of goods in which the questions of fact and law to which it is subject would be considered.

On the other hand what are the rights which, it is alleged, have been injured? (In connexion with the examination of the question of admissibility it is not yet necessary to consider whether they in fact exist.)

The applicant is of the opinion that in the third party proceedings against the contested judgment the following findings must be recorded:

—the Belgian regulations tor the import and export of coal from third countries do not infringe the Treaty;

—the import of coal from third countries by the Vloeberghs company and its export to France took place on the basis of properly made-out documents; the Belgian Government by issuing these documents did not contravene the Treaty;

—the contested judgment limits the Belgian Government's power to make regulations;

—the contested judgment assesses incorrectly the motives which guided the Belgian Government in the exercise of its power to make regulations and in the application of existing legal provisions;

—the judgment casts unjustified suspicion on the Belgian Government which thereby suffers damage of a non-material nature.

If these findings are compared with the issues of the action as published, it is hard to say that, having regard to the objects of the original action, there is any cause to expect findings in the judgment of the type described and to intervene for this reason.

Finally the following should be noted. Case 9/60 was an application by a private undertaking which in pursuit of its private interests made a claim for compensation against the Community.

The subject matter of the action offered many opportunities of settling questions of law and fact, not every one of which was capable of affecting the special interests of the Belgian Government. As a member of the Community the Belgian State and consequently the Belgian Government, whose representative together with the representatives of other Governments constitute the Council of Ministers which is an essential organ of the Community, is under a duty to safeguard the interests of the Communities. It is for that reason understandable and appropriate that the Belgian Government should consider with restraint and hesitation whether to intervene in proceedings brought by private undertakings.

All these circumstances taken together permit the conclusion, in the context of the present proceedings and their objective, that the Belgian Government could be under no obligation to intervene in the original case and prevent the alleged prejudice to its rights. It was unable, within the meaning of Article 97 (1) (c), to take part in the original case and is therefore entitled to lodge an application originating third party proceedings.

The applicant must state how the judgment is prejudicial to its rights. It is obvious that for the purpose of considering admissibility the prejudice to a right does not have to be proved, because, if it exists, the judgment must be varied; the application is then well founded.

The applicant must however supply full and conclusive particulars of what constitutes the prejudice to its rights. It is from this point of view that several objections of the High Authority have to be examined.

(a)

As already mentioned the Belgian Government complains, inter alia, of unjustified suspicion and of the consequential damage of a non-material nature.

In the opinion of the High Authority however non-material damage does not constitute grounds for an application originating third party proceedings.

I should like to refute this view. It must be assumed that there are something like personal rights vested in states, a dignity and prestige as states, which deserve to be protected in the same way as the reputation of individuals. If there is any encroachment on this sphere, there is prejudice to a right. There is no reason why action should not be taken for such an infringement of a right by way of an application originating third party proceedings, provided that its cause is to be found among the decisive grounds of the judgment.

(b)

The High Authority also sees an objection against admissibility in the fact that the contested judgment of the Court does no more than dismiss the application for compensation.

In this connexion it must be stated that there can be a prejudice to a right within the compass of the legal effects of the judgment. But such effects are determined according to the operative part of the judgment and the decisive grounds of the judgment. The question therefore is only whether the alleged infringement of the right can be found in the grounds for dismissal.

(c)

So the question is how to define the decisive grounds of the judgment in the present case.

It is known that the applicant in the original case sought to obtain compensation for the High Authority's failure to make the French Government enforce the principle of the free movement of goods. The settlement of the dispute could therefore depend upon the existence of the alleged principle and how its conditions apply in the case in point.

The Court in its judgment recognized that the Treaty adopts the principle of the free movement of goods, in the same terms as the basic definition which the parties had concurred in according to it. It followed this, however, by considering what the said principle was intended to protect and stated: (2)

‘The principle of the free movement of goods laid down in Article 4 (a) was established primarily in the interests of production in the Community. Although it has in addition been extended to cover goods lawfully imported from third countries, this was not for the purpose of protecting those goods or their producers…’

‘Producers from third countries and traders dealing in their goods cannot therefore put forward claims for compensation on the basis of the infringement of some alleged subjective right vested in them if it should happen that the above rule is not applied and they suffer damage as a result.’

These observations destroyed the basis of the application, because it cannot be denied that the reasons cited above, even if they permit critical questions to be asked concerning their meaning, can of themselves constitute a sufficient basis for the judgment, given the whole context of the legal arguments.

But the Court was not satisfied with this argument and put forward additional reasons, with which alone the present application is concerned. They may be summarized as follows:

According to Article 73 the administration of import licences for trade with third countries is the responsibility of the Government in whose territory the place of destination of the imports is situated. It appears from the applicant's evidence that the coal was only intended for France. It was possible for its entry into Belgium with the right to circulate freely to be effected without difficulties or charges of any kind. Accordingly the applicant cannot rely on any breach of duty on the part of the High Authority. In other words according to the Court of Justice there is no violation of the principle of the free movement of goods, because the French Government was able to rely on Article 73 of the Treaty, The Court thus puts forward a second ground for dismissing the application, which, independently of the first mentioned arguments, similarly constitutes in itself a sufficient basis for the judgment.

What are the consequences of this? There is no doubt whatever that the deletion or modification of the second line of argument leaves the substance of the judgment intact. Are we therefore faced only with subsidiary considerations, which do not in fact constitute a sufficient basis for the judgment and cannot therefore be made the subject matter of an application originating third party proceedings? There is no such qualification in the judgment itself. It must therefore be assumed that the Court based its decision upon two grounds and intended to attribute to each of them decisive significance and binding effect. But if the legal effects of the judgment are based equally on the first and on the second ground, each of the lines of argument may be the subject matter of an application originating third party proceedings.

The High Authority's objections in respect of admissibility therefore fail.

II — Is the application originating third party proceedings well founded?

In its application the applicant asks the Court to:

‘rule that in this case there has not in fact been any attempt at direct importation, any semblance of importing into Belgium or any disguised transit of goods through Belgium…’

The applicant refers word for word to the last sentence of the third paragraph from the end of the grounds of judgment (French text: fifth paragraph from end) and concludes from it and from the context of this part of the judgment that the Court made the findings already mentioned with a view to making an assessment of Belgian import regulations. In particular it emphasizes for the purpose of its arguments the expressions ‘attempt at direct importation’, ‘semblance of importing into Belgium’, and ‘similar practices’.

In order to assess these grounds for complaint it is necessary to put forward an objective interpretation of the exact line of thought and meaning of the judgment.

After the Court had first of all recognized the validity of the principle of the free movement of goods in respect of ‘products originating in third countries which are lawfully granted by one of the Member States the right of entry into its own territory’ (Judgment, 1961, p. 466 (German edition)), it continued its argument by mentioning directly Article 73 of the Treaty which ‘assigns the administration of import licences for trade with third countries to the Government in whose territory the place of destination for imports is situated’ (Judgment p. 468).

In particular in the third paragraph from the end of the judgment (French text: sixth paragraph from end) it becomes clear from the comparison of the principle of the free movement of goods with Article 73 (‘on the other hand’ — ‘par contre’) that the Court considers that this Article restricts the principle of the free movement of goods. When Article 73 applies, reliance on the principle of the free movement of goods is excluded. This also explains the conclusion of the Court: ‘In these circumstances the applicant cannot rely on a possible breach of duty by the High Authority in order to claim compensation for the damage thereby caused to it’ (Judgment p. 468). For only if there is no infringement of the principle of the free movement of goods can the High Authority not be blamed for its failure to enforce this principle.

It follows from what has been said that the findings to which exception is taken (attempt at direct importation, semblance of importing into Belgium) can only refer to the conduct of the importers and not to the conduct of the Belgian Government. The same applies to the sentence in which the Court speaks of practices, for it is expressly stated ‘in making an application under Article 40 of the Treaty, these third parties cannot rely on the failure of mutual assistance for the defence and legal protection of practices …’, Consequently there can be no moral censure of the Belgian Government in the judgment.

In my opinion there is not even to be found any censure of the importer in the sentences cited above. They are rather to be considered as simple findings of fact which contain no moral evaluation.

Taking everything into account therefore the complaints of the applicant have no legal foundation; no prejudice to its rights is to be found.

III — Conclusion

My view is that the Court should dismiss the application and order the applicant to pay the costs of the proceedings.

* Language of the Case: French.

(2) Reports of Cases before the Court — German Edition 1961, p. 467.