C-42/59

1. Article 97 of the Rules of Procedure is was unable to do so for good and not incompatible with the provisions sufficient reasons, and secondly to any of Article 36 of the Protocol on the party who was not in a position to Statute of the Court. By stipulating intervene in the original case under that the third party must indicate in Article 34 of the Protocol on the his application the reasons why he Statute of the Court and Article 93 'was unable to take part in the of the Rules of Procedure. original case', Article 97( 1) (c) implies that any party who could have been or who could have taken part in the 2. Publication in the Official Journal of original case is unable to institute the European Communities of the third party proceedings. This subject matter and of the conclusions provision therefore makes this pro­ in an application is intended to give cedure available in the first place to a third parties the opportunity of in­ third party who, though called upon forming themselves ofactions pending to take part in the original case, 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, 1 — Language of the Case: French. 2 — CMLR.

JUDGMENT OF 12. 7. 1962 — JOINED CASES 42 AND 49/59 — THIRD PARTY PROCEEDINGS

V

THE COURT

composed of: A. M. Donner, President, O. Riese and R. Rossi (Rapporteur) (Presidents of Chambers), L. Delvaux, Ch. L. Hammes, A. Trabucchi and R. Lecourt, Judges,

Advocate-General: K. Roemer

Registrar: A. Van Houtte

gives the following

BREEDBAND N.V. v ACIERIES DU TEMPLE AND OTHERS

'declare that the application originating The facts may be summarized as follows : third party proceedings is admissible and well-founded; By its judgment of 22 March 1961 in rule that the arisings of ferrous scrap Joined Cases 42 and 49/59 brought on received by Hoogovens from the third 7 September and 31 October 1959 party under the "maatschap" contract respectively, by the Société nouvelle des concluded between them are Hoogovens' usines de Pontlieue — Aciéries du own resources or at least are not bought Temple (SNUPAT), the Court ofJustice scrap : ruled that ferrous scrap delivered to the consequently vary the contested judg­ Hoogovens company by the Breedband ment and adjudicate anew in Case company was not Hoogovens' 'own resources'. 49/59 as follows: in the first place: dismiss the application For this reason the exemptions from made by SNUPAT as unfounded, at equalization payments granted to Hoogovens by the High Authority in least as regards the exemptions granted in favour of Hoogovens; respect of the scrap in question, which had been regarded as the user's own alternatively : vary the contested judgment resources, were declared by the Court to in so far as, after finding correctly be contrary to the Treaty. that an exemption based on the criterion After outlining the fundamental of local integration is illegal, and after principles governing the retroactive annulling the implied decision in dispute, withdrawal of unlawful measures, the the judgment failed to rule that the Court referred the question back to the exemptions granted to Hoogovens High Authority. cannot be withdrawn retroactively, but On 5 June 1961 Breedband N.V. must be upheld on the ground that the instituted third party proceedings scrap in question constitutes Hoogovens' against this judgment, which was pub­ own resources; lished on 8 April 1961 in the Official refer the case back to the High Journal of the European Communities. Authority; The application originating third party in both cases, make an appropriate proceedings is brought against all the order as to costs.' original and intervening parties in Joined Cases 42 and 49/59, that is to say : The Société des Aciéries du Temple and the High Authority of the ECSC, two of the — the Société des Aciéries du Temple, defendants, contend that the Court successor to the rights of the Société should : nouvelle des usines de Pontlieue —

intervener in the original case ; exceptional review procedure and — the Società Breda Siderurgica, inter­ are therefore only admissible subject verner in the original case. to stringent conditions. In this case, references to certain national legal III — Submissions and arguments systems appear to be unable to of the parties exercise any decisive influence since, first, the differences between these The submissions and arguments of the systems must be taken into account parties may be summarized as follows : and, secondly, the conditions in which third party proceedings may Admissibility be admitted are set out in the Rules of Procedure. A — On the scope of Article 36 of the Protocol on the Statute of the Court (b) It is clear that, by means of this of Justice annexed to the Treaty extraordinary review procedure, establishing the ECSC and of which is not open to Hoogovens, Article 97 of the Rules of Procedure this company is attempting not only to re-open an action in which a Supported by the Hoogovens company, final judgment has been given, but the third party maintains that the appli­ also through the intermediary of cation originating third party proceed­ Breedband, to introduce as new ings is admissible for the following evidence the contract which it could reasons : have produced to the Court in the (a) it has an interest in requesting the original case. variation of the contested judgment since, by ruling that the rights held (c) The term 'heard' (appelées) in Article 36 of the Protocol on the by Breedband and Hoogovens in the scrap in question do not constitute ECSC Statute refers to a party co-ownership, and by making designated as a defendant in the possible the retroactive withdrawal action, and not to a party having an of exemptions declared by the Court interest in intervening. if the argu­ to be unlawful, the judgment ment in justification put forward by adversely affects its legal situation Breedband were to be upheld by the Court it would follow that whoever as regards ownership of the scrap has not been a defendant and, for and imposes on it a financial burden as a result of the retroactive this reason, could not be 'heard' withdrawal; in the original case, would be in a position to institute third party (b) it was unable to take part in the proceedings. In fact, only voluntary original case since it was not called intervention is expressly provided upon ('appelé') within the meaning for by the Rules of Procedure; of Article 36 of the Protocol on the and Article 97(1)(c) of the Rules Statute of the Court, and since the indicates that failure to take part in immediate beneficiary of the the original action must be justified disputed exemptions regarded in the by reasons other than that of not contested judgment as illegal was having been called upon to do so. Hoogovens. In fact the third party was aware Against this, the High Authority submits of the case, not only because a that the application is not admissible notice on this subject had appeared for the following reasons: in the Official Journal but above

all because of the close links existing stitute, the two associates are jointly between it and Hoogovens. and severally liable for these sums. (d) finally, to the argument that the The third party replies to the arguments immediate beneficiary of the put forward by the High Authority and disputed exemptions was Hoogovens the Aciéries du Temple as follows : and not Breedband, one of the (1) An exceptional review procedure following applies : is neither more nor less unusual than an — either the question whether these

It may therefore be has delivered its judgment. concluded that, in annulment proceed The Société des Aciéries du Temple adds ings, the conditions of admissibility of that by both Article 97(1 )(b) of the the application must not be interpreted Rules of Procedure and by French too strictly. Moreover, in Case 5/55 the domestic law, third-party proceedings Court itself gave a wide interpretation may only be instituted by a party who to the concept of 'party' by regarding can show that the contested judgment is persons who had not taken part in the prejudicial to his rights. Therefore, if original case as parties to a judgment the relationship between Hoogovens and therefore entitled to request its and Breedband does not amount to a interpretation. 'maatschap', the application originating (3) The basic features of third party third party proceedings instituted by proceedings, as shown by the national Breedband would not be admissible

of the third party ; a 'maatschap' within the meaning given :o the term by the third party, then — the third party proceedings seek the one would be bound to conclude that rescission, annulment or variation of Breedband was legally represented in the judgment in question. he original case, both in its capacity The former Rules of 4 March 1953 as a member of the same company and doubtless did not contain the substance as jointly and severally liable for the of Article 97(1)(c) of the Rules of urns owed by Hoogovens to the High Procedure in force at present and only Authority by way of equalization pay- restated the terms of Article 36 of the

JUDGMENT OF 12.7. 1962 — JOINED CASES 42 AND 49/59 — THIRD PARTY PROCEEDINGS

administrative measures. first, the subject matter of the two procedures is different since the third (6) It follows from the above consider party seeks for his own reasons to have ations that in this case all the conditions the contested judgment varied while the which are essential to the admissibility intervener is limited to supporting the of the application are present, since : conclusions of one of the parties to the — it is a right of Breedband, the right of original case. Secondly, the purposes of ownership which is adversely affected these procedures are different, since by the judgment, since the Court dealt third party proceedings seek to make with a question ofa right ofownership good the personal damage suffered by in a way which in the opinion of the the third party as a result of the judgment third party does not truly reflect the

It is in the light of Authority and the Société des Aciéries these differences between the two pro du Temple according to which: cedures that case-law and legal writers — either a 'maatschap' exists between have always refused to accept that a Hoogovens and Breedband, in which party who was able, but who omitted, to case the former company represented intervene in the original case, is not the latter in the original case; or allowed to institute third party — no maatschap exists between them, proceedings. in which case the contested judgment (5) The rule contained in Article 97(1) does not prejudice Breedband's (c), when related to Articles 35 and 36 'rights'. of the Protocol on the Statute of the In the first place this argument amounts Court, indicates that third party pro to a vicious circle, since the question ceedings are available to a party: (a) whether or not a 'maatschap' exists who was not called upon to take part in between Hoogovens and Breedband the original case, or (b) who, although depends on an examination of the he was so called upon, had good reasons substance of the third party proceedings, for being unable to take part. so that it could not possibly determine Moreover, the aim of the above- questions concerning admissibility. mentioned provision of the Rules of Secondly, the first argument advanced Procedure is to enable the Court to by the High Authority and the Société inquire whether the prejudice which is des Aciéries du Temple is based on a the subject of the application originating concept of representation drawn third party proceedings results from the exclusively from one area of French contested judgment or from the clear case-law.

On the other hand, it is recognized by (b) that the fact that a third party was French authors that if it is necessary contractually bound to pay the to speak of 'representation' in this sums that a party to the original case then such representation is defective, action might have to pay as the and they conclude that the party result of a judgment given in that action is sufficient to allow him to ostensibly represented is allowed to institute third party proceedings where : institute third party proceedings. (a) the contested judgment brought (8) In the contested judgment the Court about an increase in joint liability; found that, since the contract between (b) the party to the original case deemed Hoogovens and Breedband had not to be acting as the representative been produced, it was not in a position failed or neglected to raise an to rule as to its value as a decisive factor objection ofjoint concern. in the dispute. As the contract has In the present case, while confirming now been produced by the third party, that it shares entirely the view held by it must be asked whether, in law, it is a Hoogovens as to the disadvantages satisfactory solution which establishes involved in producing the contract, the unlawful nature of the disputed the third party declares none the less exemptions and orders Hoogovens to that, even in the opinion of the Court, pay 6 million guilders when the criterion Hoogovens failed to make use of a means regarded by the High Authority and the of defence, production of the contract, Court as decisive for the legality of these and has thus omitted to raise an exemptions has never in fact at any objection of joint concern. Finally such moment been applied in this case. a wide concept of representation is The High Authority replies to all these unknown in the other national legal considerations with the following systems, especially that of the arguments: Netherlands, and it would be neither logical nor in accordance with the (1) The amendment made by the general principles of Community law present Rules ofProcedure to the Rules of to extend in this way the concept of the 4 March 1953 as regards third party proceedings shows that in Article 36 'represented' party since this legal of the Protocol on the Statute of the system recognizes neither an appeals Court the authors of the Treaty had procedure nor, as regards annulment proceedings, third party applications. merely made provision for this procedure and had left the Court to establish the Thirdly, as regards the second argument conditions in which it would be put forward by these two defendants, admissible. it must be remembered;

which falls on a third party as a result (4) Breedband was represented by of this provision, since each legal system Hoogovens in the original case, since regulates this question in its own way it is not contested that the two under and in this case the terms of Article takings form a group within the generally 9 7 (1) (c) of the Rules are quite clear. accepted meaning of the word. In any case, if the contested judgment means (3) The third party maintains that the that Hoogovens must accept certain purpose of the condition in Article financial obligations, it prevents these 97(1)(c) of the Rules of Procedure is to obligations being shared with others, enable the Court to consider whether and so cannot directly prejudice the there is an abuse of this review procedure rights of the applicant. and to examine whether the prejudice allegedly suffered by the third party (5) Finally, the application originating arises from its own clear omission third party proceedings should be rather than from the contested judgment. declared inadmissible. First, it is This argument is without foundation impossible for the contested judgment since, first there is no abuse once the to prejudice Breedband's rights, since: conditions of admissibility laid down by the Rules of Procedure are satisfied (a) it amounts to res inter alios acta ; and, secondly, proofofprejudice suffered by the applicant is required by Article (b) the operative part of the judgment 97(l)(b) and it would be unreasonable in no way refers to Breedband ; and to introduce the same concept into the interpretation of Article 97(l)(c). (c) if it could be concluded from the Moreover, it must be remember that grounds of the judgment that breed- the judgment did not itself settle a band's right of ownership in the question of ownership as regards Breed- scrap delivered to Hoogovens is band and that the argument of the exclusive this would still not mean third party according to which the that Breedband was prejudiced by judgment would result in reconsideration the judgment. ofthe fiscal regulations at present applied Secondly, the third party has not by the Dutch Government to the move explained its reasons for having been ment of goods between Hoogovens and unable to take part in the original case. Breedband is merely supposition and In its rejoinder, the Société des Aciéries du does not establish that any actual Temple again refers to the arguments

This taken into account, render superfluous mandate clearly includes the power to all rules of procedure. represent each other.

B — On the jurisdiction of the Court The High Authority objects that if the disputed exemption had been lawful The Société des Aciéries du Temple states in itself, even though the reasons given to that the third party application seeks to justify it were wrong, the Court would have upheld the unlawful nature of the not have annulled it. In accordance exemption which is founded on the with its case law, it would only have principle of local integration and the rectified the reasons stated for the grant of an exemption based on a exemption and would have left the 'maatschap' contract. Therefore, since operative part intact. On this point it is • the Court is bound to justify the disputed significant that the third party is exemption on grounds other than those requesting the Court to recognize a right given by the High Authority in its of ownership in Hoogovens rather than original decision, the third party applica­ in itself. tion is inadmissible since a court dealing with the abuse of powers cannot intrude As to the substance of the case into the administrative sector and take a new decision to replace that which was Supported by the Hoogovens company, the annulled. third party maintains that the contract concluded between them amounts to a The third party argues that the complaint 'maatschap' within the meaning of that the Court lacks jurisdiction is Articles 1655 et seq. of the Dutch unfounded, since: Civil Code, by which all the products — the principal conclusion in its of their cooperation, including the disputed scrap, are to be regarded as their application only seeks the dismissal common property. of the original application by means of a variation of the contested judg­ Before defining the concept of ment, which is clearly within the 'maatschap' the third party argues that jurisdiction of the Court; the legal relationship existing between Hoogovens and Breedband must be — its alternative conclusion requests considered solely from the point of view the Court for a ruling which is well of Dutch law, since : within its jurisdiction. The Court's finding that continuance of the — the two associates are companies disputed exemptions is unlawful on incorporated under Dutch law ; the basis of the argument put forward — their contract was concluded in the by the High Authority does not of itself mean that such continuance is Netherlands and expressly refers to the legislation of that country ; unlawful in all cases, since it is necessary to examine whether other — no specific European or Community grounds might exist to justify the law exists on this point; exemptions. The Court considered that it could not undertake such an — no provision of the ECSC Treaty examination since it could not do so excludes the application of national unless it was able to take cognisance law in this field; on the contrary, of the contract made between Article 83 expressly refers to such law ; Hoogovens . and Breedband. As this contract has now been produced, it — the concepts of 'own resources' and is for the Court to rule that the 'purchased scrap' have been defined exemption is legally justified for by the authors of the Treaty on the other reasons which are valid under basis of the concepts of ownership the Treaty. and purchase, the exact scope of

which can only be understood on Hoogovens and Breedband, and to this the basis of the national law which is end compares the provisions of the applicable in each case. disputed contract with each of the Furthermore, the third party considers characteristic features of the 'maatschap' set out above. that the Court may not use the wording of the contract in order to deduce from (a) As regards the 'contributions' the it that the arrangment concluded third party stresses that the two associates between Hoogovens and Breedband have established close collaboration in does not amount ot a 'maatschap' the joint manufacture of laminated since, under the principles of law in products. force in each Member State, the real content of an agreement must be deter (b) As regards the 'common aim', it is clear from the contract at issue that it is mined by examining its essential features and by seeking at the same time the through the close collaboration established between the companies, and common intention of the contracting parties. through their contributions, that Having said this, the third party first Hoogovens and Breedband hoped to of all considers the concept of the make a common profit. 'maatschap' which it defines as a contract (c) The 'stipulation of a division of concluded between two or more parties profits' (and of losses) is found in for the purpose of collaboration con

Moreover, as obligation as regards the transfer regards the 'organization' of this of ownership or the enjoyment of collaboration, Articles 6 and 8 of the property also amounts to a contract provide that Hoogovens shall contribution. be obliged to make available to the 'maatschap' its managerial staff and a (b) The achievement, by means of whole series of its departments. these contributions, of a common aim consisting of the pursuit of a (e) Finally, as regards the 'period of collaboration' between the two

in agreed circumstances for so long as Secondly, the third party considers the common profit is insufficient to whether these factors are to be found in enable either Hoogovens or Breedband the contract concluded between to cover 'out of pocket expenses', in no

way means that the contract will be Finally, after explaining that the suspended if a loss is incurred. The processes carried out by Breedband real meaning of this provision is that which produce the scrap, and the each contracting party may, for a delivery of the scrap to Hoogovens, do fixed period, suspend the 'maatschap' not remove it from the system of co- if it can be foreseen that the losses will ownership described above, the third be so great that even 'out of pocket party argues alternatively that the expenses' will no longer be covered. concept of an undertaking within the And it must be remembered that when meaning of the ECSC Treaty, as such a forecast is possible, the joint elucidated by the Court ofJustice in the production will already have been contested judgment, conflicts with that running at a loss for a long time. concept as it appears in Article 58 Finally it is incorrect that the application of the EEC Treaty. of Article 1302 of the Dutch Civil Code The High Authority maintains, in the to the termination of the contract at first place, that it has never disputed issue shows that the latter did not that the real intention of the parties establish any 'maatschap' between the to a contract takes precedence over the

JUDGMENT OF 12. 7. 1962 — JOINED CASES 42 AND 49/59 — THIRD PARTY PROCEEDINGS

scrap by the two companies, but that prohibits the use of such a procedure what is in question is rather a 'group', as regards relations between and that the scrap, known as 'group associates.

BREEDBAND N.V. v ACIERIES DU TEMPLE AND OTHERS

IV — Procedure Temple and by Hoogovens, Breda Siderurgica having submitted no The procedure followed the normal observations on this matter, the President course. of the Court dismissed the application for a stay of execution by Order of By an application for the adoption of an 30 June 1961. interim measure made on 5 June 1961 During its session of 10 May 1962 the the applicant sought a stay of execution Court, upon hearing the report of the of the contested judgment. Judge-Rapporteur, and the opinion of Having regard to the written the Advocate-General, decided that observations submitted on 16 June 1961 there was no necessity for a preparatory by the High Authority and on 17 June inquiry in this case. 1961 by the Société des Aciéries du

Grounds ofjudgment

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 ofJustice annexed to the Treaty establishing the ECSC and Article 97(1)(c) of the Rules of Procedure.

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 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.

Costs

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.

On those grounds,

Donner Riese Rossi Delvaux Hammes Trabucchi Lecourt

Delivered in open court in Luxembourg on 12 July 1962.

A. Van Houtte A. M. Donner

Registrar President

OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 19 JUNE 1962<apnote>1</apnote>

Mr President, scrap delivered by the Dutch under­ Members of the Court, taking, Breedband, to the Dutch under­ taking, Hoogovens, was exempted from Today, I have to deal in my opinion equalization (decision ofthe equalization with a second case of an application department of 13 and 14 December originating third party proceedings, 1956, approved by the High Authority having recently had the opportunity in on 18 December 1957 and 17 April another case of giving my views on this 1958). SNUPAT, a French undertaking, review procedure. challenged the exemption as being This application is directed against the contrary to the Treaty and in an judgment of the Court of 22 March 1961. application to the High Authority I only need to make a few observations requested it to cancel all exemptions on the nature of the judgment and the from the equalization of scrap. During circumstances surrounding the case. the legal proceedings which followed, In the context of the compulsory Hoogovens intervened in support of the equalization of scrap, the OCCF (Joint High Authority to defend the exemptions Bureau of Ferrous Scrap Consumers) which it had been granted. The Court and the CPFI (Imported Ferrous Scrap however found in favour of the applicant Equalization Fund) decided to regard as and annulled the implied decision of the a company's own arising, and exempt High Authority in which it refused to from equalization within the meaning cancel the exemptions. The reasons for of Decision 2/57, the scrap exchanged the annulment were as follows : between undertakings in close — the exemption of group scrap is geographical association. Accordingly illegal ;