61959T0042

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1 . PROCEDURE - THIRD PARTY PROCEEDINGS - CONDITIONS FOR ADMISSIBILITY - FAILURE OF THIRD PARTY TO TAKE PART IN THE ORIGINAL CASE - RULES OF PROCEDURE, ARTICLE 97 ( 1 ) ( C ) - SCOPE OF THIS PROVISION

( PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE ANNEXED TO THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY, ARTICLES 34 AND 36; RULES OF PROCEDURE, ARTICLE 93 )

2 . PROCEDURE - APPLICATION - SUBJECT MATTER OF AND CONCLUSIONS IN THE APPLICATION - PUBLICATION IN THE OFFICIAL JOURNAL - PURPOSE OF SUCH PUBLICATION

( RULES OF PROCEDURE, ARTICLE 15 ( 6 ))

1 . ARTICLE 97 OF THE RULES OF PROCEDURE IS NOT INCOMPATIBLE WITH THE PROVISIONS OF ARTICLE 36 OF THE PROTOCOL ON THE STATUTE OF THE COURT . BY STIPULATING THAT THE THIRD PARTY MUST INDICATE IN HIS APPLICATION THE REASONS WHY HE 'WAS UNABLE TO TAKE PART IN THE ORIGINAL CASE', ARTICLE 97 ( 1 ) ( C ) IMPLIES THAT ANY PARTY WHO COULD HAVE BEEN OR WHO COULD HAVE TAKEN PART IN THE ORIGINAL CASE IS UNABLE TO INSTITUTE THIRD PARTY PROCEEDINGS . THIS PROVISION THEREFORE MAKES THIS PROCEDURE AVAILABLE IN THE FIRST PLACE TO A THIRD PARTY WHO, THOUGH CALLED UPON TO TAKE PART IN THE ORIGINAL CASE, WAS UNABLE TO DO SO FOR GOOD AND SUFFICIENT REASONS, AND SECONDLY TO ANY PARTY WHO WAS NOT IN A POSITION TO INTERVENE IN THE ORIGINAL CASE UNDER ARTICLE 34 OF THE PROTOCOL ON THE STATUTE OF THE COURT AND ARTICLE 93 OF THE RULES OF PROCEDURE .

2 . PUBLICATION IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES OF THE SUBJECT MATTER AND OF THE CONCLUSIONS IN AN APPLICATION IS INTENDED TO GIVE THIRD PARTIES THE OPPORTUNITY OF INFORMING THEMSELVES OF ACTIONS PENDING BEFORE THE COURT .

IN JOINED CASES 42 AND 49/59 - THIRD PARTY PROCEEDINGS

BREEDBAND N . V ., A LIMITED COMPANY HAVING ITS REGISTERED OFFICE AT IJMUIDEN ( VELSEN ), NETHERLANDS, REPRESENTED BY ITS MANAGER P . R . BENTZ VAN DEN BERG, ASSISTED BY J . MERTENS DE WILMARS, ADVOCATE OF THE ANTWERP BAR WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT,

THIRD PARTY,

V

1 . SOCIETE DES ACIERIES DU TEMPLE, A LIMITED COMPANY HAVING ITS REGISTERED OFFICE IN PARIS, FRANCE, SUCCESSOR IN TITLE TO THE SOCIETE NOUVELLE DES USINES DE PONTLIEUE - ACIERIES DU TEMPLE ( SNUPAT ) FOLLOWING AN AMALGAMATION AGREEMENT OF 9 MAY 1961, AMENDED ON 7 JUNE 1961, REPRESENTED BY E . DE SEZE, MANAGING DIRECTOR IN OFFICE, ASSISTED BY J . DE RICHEMONT, ADVOCATE AT THE COUR D'APPEL IN PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF G . MARGUE, 20 RUE PHILIPPE-II,

2 . HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, I . TELCHINI, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ,

3 . KONINKLIJKE NEDERLANDSCHE HOOGOVENS EN STAALFABRIEKEN N . V ., A LIMITED COMPANY HAVING ITS REGISTERED OFFICE AT VELSEN, NETHERLANDS, REPRESENTED BY ITS MANAGER, J . F . TEN DOESSCHATE, ASSISTED BY C . P . KALFF AND H . BARON COLLOT D'ESCURY, ADVOCATES AT THE GERECHTSHOF IN AMSTERDAM, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT, 27 AVENUE GUILLAUME,

4 . SOCIETA BREDA SIDERURGICA, A LIMITED COMPANY HAVING ITS REGISTERED OFFICE AT SESTO SAN GIOVANNI ( MILAN ) ITALY, REPRESENTED BY G . REBUA, ITS MANAGING DIRECTOR, DEFENDANTS,

APPLICATION FOR THE VARIATION OF THE JUDGMENT DELIVERED BY THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES ON 22 MARCH 1961 IN JOINED CASES 42 AND 49/59,

P.157

AS TO ADMISSIBILITY

1 . THIS APPLICATION HAS BEEN BROUGHT UNDER ARTICLE 36 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE ANNEXED TO THE TREATY ESTABLISHING THE ECSC AND UNDER ARTICLE 97 ( 1 ) OF THE RULES OF PROCEDURE .

ACCORDING TO THE THIRD PARTY, ARTICLE 36 APPEARS TO PERMIT THIRD PARTY PROCEEDINGS WHEN THE PARTY CONCERNED WAS NOT HEARD (' APPELE ') IN THE ORIGINAL CASE . HOWEVER, THE DEFENDANT HIGH AUTHORITY RAISES A PRELIMINARY OBJECTION OF INADMISSIBILITY ON THE GROUNDS THAT THE THIRD PARTY COULD HAVE INTERVENED IN THE ORIGINAL CASE . THESE ARGUMENTS PUT IN ISSUE THE INTERPRETATION OF ARTICLE 36 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE ANNEXED TO THE TREATY ESTABLISHING THE ECSC AND ARTICLE 97 ( 1 ) ( C ) OF THE RULES OF PROCEDURE .

BY ARTICLE 36, THIRD PARTY PROCEEDINGS ARE ONLY ALLOWED 'IN CASES AND UNDER CONDITIONS TO BE DETERMINED BY THE RULES OF PROCEDURE '. ACCORDING TO ARTICLE 97 ( 1 ) ( C ) OF THE RULES OF PROCEDURE, THE THIRD PARTY MUST INDICATE IN HIS APPLICATION THE REASONS WHY HE 'WAS UNABLE TO TAKE PART IN THE ORIGINAL CASE '. THIS REQUIREMENT IMPLIES THAT ANY PARTY WHO COULD HAVE BEEN HEARD OR WHO COULD HAVE TAKEN PART IN THE ORIGINAL CASE IS UNABLE TO INSTITUTE THIRD PARTY PROCEEDINGS . THE PROVISION IN QUESTION SHOULD THEREFORE BE INTERPRETED IN THIS SENSE . THERE ARE, NEVERTHELESS, GROUNDS FOR EXAMINING WHETHER THIS PROVISION WHEN SO INTERPRETED IS NOT INAPPLICABLE AS INCOMPATIBLE WITH THE PROVISIONS OF ARTICLE 36 OF THE PROTOCOL . IN PROVIDING THAT THE RULES OF PROCEDURE SHALL DETERMINE THE CASES AND CONDITIONS IN WHICH THIRD PARTY PROCEEDINGS MAY BE ALLOWED, THE PROTOCOL ASSIGNS TO THE AUTHORS OF THE RULES THE TASK OF DEFINING THE CONDITIONS GOVERNING THE ADMISSIBILITY OF THIRD PARTY PROCEEDINGS . ARTICLE 97 OF THE RULES OF PROCEDURE THUS PROVIDES THE RULES FOR IMPLEMENTING THE PRINCIPLE STATED IN ARTICLE 36 OF THE PROTOCOL ON THE STATUTE OF THE COURT .

P . 158

2 . IT IS NECESSARY TO CONSIDER IN WHAT CONDITIONS THE THIRD PARTY WOULD HAVE BEEN ABLE TO 'TAKE PART IN THE ORIGINAL CASE '.

THE EFFICIENT ADMINISTRATION OF JUSTICE AND THE NEED FOR CERTAINTY IN LEGAL RELATIONSHIPS DEMAND THAT PERSONS INTERESTED IN THE RESULT OF AN ACTION PENDING BEFORE THE COURT BE PRECLUDED FROM ASSERTING THEIR RIGHTS ONCE A JUDGMENT HAS BEEN DELIVERED SETTLING THE QUESTION IN DISPUTE . IT IS PRECISELY IN ORDER TO MEET THIS REQUIREMENT THAT ARTICLE 34 OF THE PROTOCOL ON THE STATUTE OF THE COURT MAKES AVAILABLE TO THIRD PARTIES WHOSE INTERESTS ARE INVOLVED IN AN ACTION PENDING BEFORE THE COURT THE RIGHT OF VOLUNTARY INTERVENTION, PROVIDED THAT THE PURPOSE OF THEIR CONCLUSIONS IS SOLELY TO SUPPORT OR REJECT THE CONCLUSIONS OF A PARTY TO THE PROCEEDINGS .

ARTICLE 97 ( 1 ) ( C ) OF THE RULES OF PROCEDURE THEREFORE MAKES THIS PROCEDURE AVAILABLE IN THE FIRST PLACE TO A THIRD PARTY WHO, THOUGH CALLED UPON TO TAKE PART IN THE ORIGINAL CASE, WAS UNABLE TO DO SO FOR GOOD AND SUFFICIENT REASONS, AND SECONDLY TO ANY PARTY WHO WAS NOT IN A POSITION TO INTERVENE IN THE ORIGINAL CASE UNDER ARTICLE 34 OF THE PROTOCOL ON THE STATUTE OF THE COURT AND ARTICLE 93 OF THE RULES OF PROCEDURE .

3 . CONSEQUENTLY, IT IS NECESSARY TO CONSIDER WHETHER THE THIRD PARTY COULD HAVE INTERVENED VOLUNTARILY IN THAT CASE IN THE CONDITIONS SET OUT IN ARTICLE 34 OF THE PROTOCOL ON THE STATUTE OF THE COURT .

THE PRESENT APPLICATION ORIGINATING THIRD PARTY PROCEEDINGS IS BROUGHT AGAINST THAT PART OF THE JUDGMENT DEALING WITH APPLICATION 49/59 . THE SUBJECT MATTER OF AND THE CONCLUSIONS IN THAT APPLICATION WERE PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES OF 19 NOVEMBER 1959 . PUBLICATION IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES OF THE SUBJECT MATTER OF AND THE CONCLUSIONS IN AN APPLICATION IS INTENDED TO GIVE THIRD PARTIES THE OPPORTUNITY OF INFORMING THEMSELVES OF ACTIONS PENDING BEFORE THE COURT . THE THIRD PARTY HAS NEVER CLAIMED TO HAVE BEEN UNAWARE OF THE SAID PUBLICATION BEFORE THE OPENING OF THE ORAL PROCEDURE . MOREOVER IN ITS REPLY THE THIRD PARTY ADMITS THAT, UNDER ARTICLE 6 OF THE CONTRACT BY WHICH IT IS ASSOCIATED WITH HOOGOVENS, THE LATTER HAS PLACED AND PLACES 'ITS MANAGERIAL STAFF AT THE DISPOSAL OF BREEDBAND '. IT CANNOT THEREFORE BE CLAIMED THAT THE THIRD PARTY WAS NEVER AWARE OF THE ORIGINAL CASE EVEN DESPITE THE FACT THAT HOOGOVENS HAD INTERVENED IN IT .

P . 159

IT IS CLEAR THAT AS A RESULT OF THE PUBLICATION THE SUBJECT MATTER OF AND THE CONCLUSIONS IN THE ORIGINAL APPLICATION MADE KNOWN THE INTEREST WHICH ALL COMMUNITY UNDERTAKINGS EXEMPTED FROM PAYMENT OF EQUALIZATION HAD IN THE RESULT OF THE CASE . IT WAS PRECISELY TO SAFEGUARD THE INTERESTS NOW ASSERTED BY BREEDBAND THAT HOOGOVENS REQUESTED PERMISSION TO INTERVENE IN THE ORIGINAL ACTION, UNDER ARTICLE 34 OF THE PROTOCOL ON THE STATUTE OF THE COURT, AND THAT PERMISSION TO INTERVENE WAS GRANTED .

THE THIRD PARTY, ALLEGING THAT THE EXEMPTED SCRAP CONSTITUTES HOOGOVENS' OWN RESOURCES, CLAIMED THAT THE EXEMPTIONS GRANTED TO THAT COMPANY SHOULD NOT BE WITHDRAWN . THE THIRD PARTY, THEREFORE, IS ASSERTING AN INTEREST WHICH WAS PUT IN ISSUE IN THE ORIGINAL APPLICATION AND ITS CONCLUSIONS ARE IDENTICAL WITH THOSE IN WHICH HOOGOVENS REQUESTED THAT THE CONCLUSIONS OF THE APPLICANT IN THE ORIGINAL CASE BE DISMISSED . THE THIRD PARTY HAS THEREFORE FAILED TO 'INDICATE', WITHIN THE MEANING OF ARTICLE 97 ( 1 ) ( C ) OF THE RULES OF PROCEDURE, THE REASONS WHY IT WAS UNABLE TO TAKE PART IN THE ORIGINAL CASE .

THE PRESENT APPLICATION IS THEREFORE INADMISSIBLE .

IN THESE CIRCUMSTANCES IT IS UNNECESSARY TO CONSIDER THE OTHER SUBMISSIONS IN THE APPLICATION ORIGINATING THE THIRD PARTY PROCEEDINGS, AND IN PARTICULAR WHETHER THE LEGAL RELATIONSHIP BETWEEN THE THIRD PARTY AND HOOGOVENS, THE INTERVENER IN THE ORIGINAL CASE, AMOUNTS TO A 'MAATSCHAP' AND WHETHER THE THIRD PARTY WAS IN FACT REPRESENTED BY HOOGOVENS IN THE ORIGINAL ACTION .

UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . THE THIRD PARTY HAS FAILED IN ITS APPLICATION AND MUST THEREFORE BEAR THE COSTS .

THE COSTS OF THE INTERIM PROCEEDINGS WERE RESERVED BY ORDER OF THE PRESIDENT OF THE COURT OF 30 JUNE 1961 .

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION ORIGINATING THIRD PARTY PROCEEDINGS AS INADMISSIBLE;

2 . ORDERS THE COMPANY BREEDBAND N . V . TO PAY THE COSTS BOTH OF THE PRINCIPAL PROCEEDINGS AND OF THE INTERIM PROCEEDINGS .