61986O0147(02)

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Procedure - Third-party proceedings - Judgment given in proceedings against a Member State for failure to fulfil its obligations - Natural or legal persons - Inadmissibility

( Protocol on the Statute of the Court of Justice of the European Communities, Arts 37 and 39; Rules of Procedure, Art . 97 )

Natural or legal persons other than the Member States and the Community institutions have no capacity to make an application originating third-party proceedings against a judgment of the Court given in proceedings for a declaration that a Member State has failed to fulfil its obligations .

In the first place, such persons do not fulfil the condition laid down by Article 39 of the Protocol on the Statute of the Court of Justice of the European Communities which restricts third-party proceedings solely to persons who could, as Article 97 of the Rules of Procedure specifies, have taken part in the case, since they are prevented by Article 37 of the aforesaid protocol from intervening in the proceedings for a declaration that a Member State has failed to fulfil its obligations, and secondly, it would be paradoxical, in view of the purpose of third-party proceedings and their role in contentious proceedings, if persons who are prohibited from intervening in a case were able, by those procedural means, to call in question the judgment given in that case .

In Case C-147/86 TO 3

"Panhellinios Syndesmos Idioktiton Idiotikon Technikon Epangelmatikon ke Naftikon Scholikon Monadon - PSIITENSM" ( Greek Association of owners of private technical, vocational and maritime training schools ), a trade association, represented by Theodora Dim . Antoniou and Spyros Athanassiou Taliadouros, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-rue,

applicant,

v

Hellenic Republic,

and

Commission of the European Communities, represented by Georgios Kremlis, a member of the Commission' s Legal Department, assisted by Spyridon Karalis, with an address for service in Luxembourg at the office of Georgios Kremlis, Wagner Centre, Kirchberg,

defendants,

APPLICATION originating third-party proceedings against the judgment of 15 March 1988 in Case 147/86 Commission v Hellenic Republic (( 1988 )) ECR 1637,

THE COURT

composed of : O . Due, President, Sir Gordon Slynn, C . N . Kakouris, F . A . Schockweiler and M . Zuleeg ( Presidents of Chambers ), T . Koopmans, G . F . Mancini, R . Joliet, T . F . O' Higgins, J . C . Moitinho de Almeida, G . C . Rodríguez Iglesias, F . Grévisse and M . Diez de Velasco, Judges,

Advocate General : F . G . Jacobs

Registrar : J.-G . Giraud

after hearing the Opinion of the Advocate-General,

makes the following

Order

1 By application lodged at the Court Registry on 8 June 1988, "Panhellinios Syndesmos Idioktiton Idiotikon Technikon Epangelmatikon ke Naftikon Scholikon Monadon - PSIITENSM" ( Greek Association of owners of private technical, vocational and maritime training schools ), a trade association, instituted third-party proceedings, pursuant to Article 39 of the Protocol on the Statute of the Court of Justice ( hereinafter referred to as "the Protocol ") and Article 97 ( 1 ) of the Rules of Procedure, against the Court' s judgment of 15 March 1988 in Case 147/86 ( Commission v Hellenic Republic ( 1988 ) ECR 1637 ).

2 In the contested judgment the Court held that, by prohibiting nationals of other Member States from setting up coaching establishments known as "frontistiria" and private music and dancing schools, and from giving private lessons at home, the Hellenic Republic had failed to fulfil its obligations under Articles 52 and 59 of the EEC Treaty, and secondly, that by prohibiting or by restricting access for nationals of other Member States already employed in Greece and of members of their families to the posts of director or teacher in "frontistiria" and in private music and dancing schools, the Hellenic Republic had failed to fulfil its obligations under Article 48 of the Treaty .

3 The application originating third-party proceedings challenges the declaration made by the Court in the judgment at issue to the effect that Greece has failed to fulfil its obligations . Contrary to the Commission' s contention, and as is clear from the actual wording of the application, the third parties criticize the judgment in so far as it applies to all "frontistiria" and private lessons at home, and not just to "frontistiria" engaged in the teaching of foreign languages .

4 The Commission raises two objections of inadmissibility and applies to the Court, pursuant to Article 91(1 ) of the Rules of Procedure, to give a decision without considering the substance of the case . It maintains, in the first place, that persons other than the Member States and the Community institutions lack the capacity to institute third-party proceedings against a judgment of the Court given in proceedings for a declaration that a Member State has failed to fulfil its obligations . Secondly, the Commission maintains, the contested judgment does not impair the rights of the third parties concerned .

5 In support of its first objection of inadmissibility, the Commission contends that the involvement of natural or legal persons other than the Member States and the Community institutions is excluded in proceedings for a declaration that a Member State has failed to fulfil its obligations . Those persons cannot compel the Commission to institute such proceedings . Furthermore, Article 37 of the Protocol does not confer on such persons the right to apply for leave to intervene in proceedings of that kind . As it is impossible for them to intervene, it follows that they cannot institute third-party proceedings .

6 The third parties concerned claim that the Court should reject that objection of inadmissibility on the ground, in particular, that the Commission' s argument confuses the procedure for leave to intervene with third-party proceedings . Only third-party proceedings ensure that judicial protection is afforded to third parties whose rights have been impaired, regardless of the nature of the dispute .

7 According to Article 91(3 ) of the Rules of Procedure, where an application is submitted under paragraph ( 1 ) of that article, the remainder of the proceedings are to be oral unless the Court decides otherwise . In these proceedings, the Court considers that is has sufficient information on the case . It is therefore appropriate to dispense with oral proceedings and to give a decision, by way of an order, on the admissibility of the application .

8 According to Article 39 of the Protocol : "Member States, institutions of the Community and any other natural or legal persons may, in cases and under conditions to be determined by the rules of the procedure, institute third-party proceedings to contest a judgment rendered without their being heard, where the judgment is prejudicial to their rights ."

9 Article 97 of the Rules of Procedure, adopted pursuant to the aforesaid provision, specifies that an applicant originating third-party proceedings must state how the contested judgment is prejudicial to his rights and indicate the reasons for which he was unable to take part in the case .

10 Article 37 of the Protocol provides that : "Member States and institutions of the Community may intervene in cases before the Court . The same right shall be open to any other person establishing an interest in the result of any case submitted to the Court, save in cases between Member States, between institutions of the Community or between Member States and institutions of the Community ."

11 It follows from that provision that natural or legal persons other than the Member States and the Community institutions lack the capacity to intervene in proceedings instituted under Articles 169 and 170 of the Treaty in which a Member State or the Commission applies to the Court for a declaration that a Member State has failed to fulfil its obligations under Community law .

12 The same provision, in so far as it does not allow such persons to take part in cases of that kind, consequently excludes them from the scope of Article 39 . They do not fulfil the condition laid down by that article which restricts third-party proceedings solely to persons who could, as Article 97 of the Rules of Procedure specifies, have taken part in the case since they are prevented by Article 37 of the Protocol from intervening in proceedings for a declaration that a Member State has failed to fulfil its obligations .

13 That interpretation of the combined provisions of Articles 37 and 39 of the Protocol is also supported by the purpose of third-party proceedings and by their role in contentious proceedings .

14 Third-party proceedings are designed to enable persons who should or could have taken part in a case to gain recognition of their rights .

15 Accordingly, as the Court has already pointed out, it is necessary, in the interests of the efficient administration of justice and of the certainty of legal relations, to prevent so far as possible persons having an interest in the result of proceedings pending before the Court from asserting this interest after the Court has delivered its judgment and has thus settled the question in dispute ( judgment of 12 July 1962 in Joined Cases 9 and 12/60 - Third-party proceedings - Belgium v Vloeberghs and High Authority (( 1962 )) ECR 171 ).

16 That requirement, although laid down by the Court in a judgment given under the ECSC Treaty, loses nothing of its force where the application of the EEC Treaty is concerned .

17 In those circumstances it would be paradoxical if persons who are precluded by Article 37 from intervening in a case were able, by instituting third-party proceedings, to call in question the judgment given in that case .

18 It follows from all the foregoing considerations that natural or legal persons other than the Member States and the Community institutions have no capacity to make an application originating third-party proceedings against a judgment of the Court given in proceedings for a declaration that a Member State has failed to fulfil its obligations .

19 In those circumstances the present application originating third-party proceedings, submitted by natural persons and a trade association against the Court' s judgment of 15 March 1988, is manifestly inadmissible and must therefore be dismissed, without there being any need to rule on the second objection of inadmissibility raised by the Commission .

Costs

20 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party' s pleading . As the applicants have been unsuccessful in their submissions, they must be ordered to pay the costs .

On those grounds,

THE COURT

hereby orders :

( 1 ) The application originating third-party proceedings is dismissed as inadmissible .

( 2 ) The third parties shall bear the costs .

Luxembourg, 6 December 1989 .