OPINION OF MR ADVOCATE GENERAL ROEMER ( 1 )

Mr President,

Members of the Court,

I have the honour to deliver my opinion on the application to intervene lodged by the Government of the Grand Duchy of Luxembourg in the cases of

The Government of the Grand Duchy of Luxembourg applied shortly before the closure of the written procedure, as the Judge-Rapporteur points out, to intervene in support of the defendant in these cases, which are pending before the Court. The question of admissibility arises in the same way in respect of both applications to intervene. By order of today's date the Court has permitted the joint discussion of the cases by the parties. Therefore I may also treat both applications jointly.

The only substantial condition for the admissibility of an application to intervene is, under Article 34 of the Statute of the Court of Justice of the ECSC, an interest in the result of the case. The French text describes this with the words: ‘Les personnes … justifiant d'un intérêt à la solution d'un litige soumis à la Cour’; the official German text uses the words: ‘… Personen, die ein berechtigtes Interesse am Ausgang eines bei dem Gerichtshof anhängigen Rechtsstreites haben…’; the official Netherlands text the words: ‘… Personen die kunnen bewijzen, dat zij belang hebben …’; the Italian text corresponds to the French. The Luxembourg Government has explained its interest in supporting the submissions of the defendant, the High Authority, requesting that the application be dismissed and in helping the defendant to win the case. The two applicants and the defendant have acknowledged that this interest in the result of the main action has been established. Since the question which must be decided in the main action is whether the system for the subsidizing of domestic fuel introduced by the Luxembourg Government is in acordance with the Treaty or whether this system should have prompted the High Authority to intervene, the interest of the intervener has evidently been established.

So far as the form of the applications to intervene is concerned, the High Authority as defendant has raised no objections. In this respect the applicant associations merely refer to the absence of a schedule of the documents annexed in support of the application. This objection is unfounded since in fact there are no documents annexed to the application.

The restriction of an application to intervene to the support of a main party which is laid down in the second paragraph of Article 34 of the Statute of the Court of Justice of the ECSC and in Article 71 (2) of the Rules of Procedure must be more closely examined. Although they acknowledge the necessary interest as the condition for an application to intervene the applicant associations consider the application to be inadmissible because in their view submissions are put forward which were not invoked by the main party which the intervener is supporting. The applicants consider that such conduct is in breach of the second paragraph of Article 34 of the Statute of the Court of Justice of the ECSC which provides that the submissions of the intervener may only support or request the rejection of the submissions of one of the parties; the submissions must be viewed and understood only in relation to the arguments which have already been put forward.

It is necessary to state first in this connexion that the submissions of the Luxembourg Government, just as those of the High Authority, the defendant, request that the application be dismissed and therefore to that extent fulfil the conditions laid down in the second paragraph of Article 34. The provision of the Statute of the Court of Justice of the ECSC to which reference was made does not govern the admissibility of the application to intervene itself but the admissibility of the submissions put forward in the application to intervene which it limits so as to make it a subordinate and voluntary application to intervene. That provision thus defines the framework within which the intervener in the case may act by putting forward its own submissions. If the intervener puts forward certain arguments in the application to intervene for the purpose of justifying its submissions, which are admissible, the applicants themselves consider that at this stage of the proceedings arguments on the substance of the case are irrelevant. In my opinion this view of the applicants is contradictory to their pleading which consists in singling out arguments put forward by the intervener, contesting them and attempting to deduce therefrom that the application to intervene itself is inadmissible. The objection of the applicants to these arguments just put forward by the Luxembourg Government therefore constitutes an opinion on the substance of the case which, however, can only be dealt with in an examination of the substance of the case in the judgment in the main action. In my opinion a superfluous argument on the substance of the case put forward by the intervener at this stage of the proceedings is not capable of affecting the admissibility of the intervention as a step in the procedure.

However, the folio wing must be said with regard to this problem: the question raised here is whether the intervener is limited, within the framework of admissible submissions, to the ‘moyens’ (arguments), ‘exceptions’ (objections), and arguments of the party in support of which it is intervening or whether it is limited to the ‘moyens’ and ‘exceptions’ of the main party whereas it may put forward in addition new arguments or whether it is free to invoke fresh ‘moyens’, fresh ‘exceptions’ and fresh arguments. The Court of Justice will have to come to a decision thereon. It will also have to bear in mind that the lack of capacity to institute proceedings and the fact that there is no need to proceed to judgment on the substance of the case which is involved here in concreto must also be considered of the Court's own motion. This also applies if the submission that the application has become purposeless is regarded as a fresh submission tending to a finding in the judgment that there is no need to proceed to judgment on the substance of the case.

The problems which have been set out here must not be examined when deciding whether the applications to intervene are admissible but when reaching a decision in the final judgment. It is therefore certain that the applications to intervene which have lodged are admissible, which is the only question which must be decided today. The further question arises whether it is necessary to reach a decision concerning the two alternative submissions put forward by the applicants if the applications to intervene are found admissible.

The applicants primarily claim that in that case the submission which the intervener has put forward in relation to the main action must be dismissed. It is, as I have already said, correct that such arguments are only relevant during the subsequent oral procedure on the substance of the case. On the other hand it is in my opinion unnecessary formally to dismiss these arguments which relate to the substance of the case.

Secondly, the applicants claim that the Court should fix a period within which written replies may be made to these arguments put forward by the intervener. This request is in my opinion purposeless with regard to the decision as to the admissibility of the applications to intervene because at the present stage of the proceedings the arguments on the substance of the case put forward by the intervener will not be considered. If this request were granted it would delay the main action. The written procedure would have to be reopened. This would naturally have to be open to all parties to the case in the same way.

The intervener wishes to be granted leave to intervene in this case on the date which it has freely chosen at the stage of the proceedings which has developed between the main parties. In the meantime the written procedure has been closed. Accordingly it is of course possible to take the view that the submissions of the intervener can only be understood as anticipating the submissions which it will put forward in the oral procedure. The consequence would be that the reply of the other parties would also have to be dealt with in the oral procedure on the substance of the case before the final judgment is delivered.

In my opinion neither of the alternative submissions put forward by the applicants requests the Court to give a decision on the dispute but seeks the adoption of procedural measures. Therefore they do not give rise to an express decision of the Court of Justice in the decision which is requested today on the admissibility of the applications to intervene. The possibility still remains, if the Court of Justice does not agree with my view as to the subsequent course of the procedure and the inappropriateness of reopening the written procedure, of giving the parties the opportunity of presenting written observations by means of an order of the President of the Court.

I therefore reach the conclusion that the applications to intervene lodged by the Government of the Grand Duchy of Luxembourg are admissible. The decision must be taken in accordance with Article 71 (5) of the Rules of Procedure by order of the Court which need not state the reasons upon which it is based. In accordance with Article 71 (6) of the Rules of Procedure the intervener receives a copy of all the pleadings sent to the parties. A decision will have to be made on the submissions of the intervener concerning the substance of the case and in addition on the costs of these proceedings which will be closed by order of this Court in the judgment on the main action. The order of the Court need make no express decision on the alternative conclusions of the applicants.

In these circumstances I conclude that the applications to intervene are admissible.

( 1 ) Translated from the German