C-71/83

JUDGMENT OF 19. 6. 1984 — CASE 71/83

Article 17 of the Convention are satisfied relevant national law, the third party, if the jurisdiction clause has been upon acquiring the bill of lading, adjudged valid as between the carrier succeeded to the shipper's rights and and the shipper and if, by virtue of the obligations.

In Case 7 1 / 8 3 ,

R E F E R E N C E t o the C o u r t u n d e r Article 1 of the P r o t o c o l of 3 J u n e 1971 on the Interpretation by the C o u r t of Justice of the C o n v e n t i o n of 27 September 1968 on Jurisdiction and the E n f o r c e m e n t of J u d g m e n t s in Civil and Commercial M a t t e r s from the H o f van Cassatie [ C o u r t of Cassation], Belgium, for a preliminary ruling in the action p e n d i n g before t h a t court between

1. PARTENREEDEREI MS TILLY R U S S ,

2. E R N E S T Russ,

gives the following

TILLY RUSS / NOVA

JUDGMENT

Facts and Issues

JUDGMENT OF 19. 6. 1984 — CASE 71/83

of the Protocol on the Statute of the is not entitled to bind the opposite party Court of Justice of the EEC, written by a jurisdiction clause included in those observations were submitted on 5 July conditions, where the opposite party has 1983 by the Commission of the not confirmed in writing that it agrees European Communities, represented by to that clause." Therefore a jurisdiction Mr Zimmermann, its Principal Legal clause cannot be effective without an Adviser, acting as Agent, assisted by Mr agreement in writing or confirmation in Van Houtte of the Brussels Bar, on 14 writing of an agreement between the July 1983 by Haven- & Vervoerbedrijf parties to the dispute. In this regard, the Nova and Goeminne Hout, respondents respondents stress that in this case the in the main action, represented by Mr parties to the dispute are the assignee of Wijffels of the Antwerp Bar, on 9 August the bill of lading and the carrier. 1983 by the Government of the Italian Republic, represented by Mr Fiumara, Avvocato dello Stato, acting as Agent, and on 11 August 1983 by the United By derogation from the rule set out Kingdom, represented by M r Howes of above, unwritten acceptance of the the Treasury Solicitor's Department, clause is admitted by the Court where acting as Agent. the parties' agreement comes within the framework of a continuing business relationship, since in that case it would be contrary to good faith for the Upon hearing the report of the Judge- recipient of the confirmation to deny the Rapporteur and the views of the existence of a jurisdiction agreement, Advocate General, the Court decided to even though he had given no acceptance open the oral procedure without any in writing. In adopting that approach, preliminary inquiry. the Court was resorting to the theory of the abuse of rights in contractual matters: thus it would be an abuse to rely upon the absence of writing in II — W r i t t e n observations sub­ denying an obvious agreement. m i t t e d by t h e C o u r t

with practices in that trade or commerce ligation to carry the agreed goods and of which the parties are or ought to have deliver them to the agreed destination". been aware", in no way derogates from That also follows from decided cases, "the absolute requirement that it must be national law and legal writing. proved that a consensus existed on the applicability of the jurisdiction clause forming part of the general conditions". Nor is the bill of lading evidence of the terms of the contract of carnage, unless it has been formally signed by the Considering next the question of the shipper to indicate his agreement, which legal nature of a bill of lading, the is rarely the case. Moreover, the respondents in the main action submit existence of conditions printed on the that it is not a contract of carriage. back of the bill of lading, including the Indeed in their view, "the contract jurisdiction clause, is explained by the of carriage arises when the carrier fact that it is impossible for the shipper undertakes to carry certain goods by sea to question or require to be amended and the shipper agrees to pay a certain conditions printed on bills of lading freight in that respect", that is to say which were not contemplated at the time at the time of reservation, which is of the conclusion of the contract of generally by telex. At the time when the carriage. The shipper cannot refuse such conditions of carriage are fixed, there is conditions, for the simple reason that by never any discussion of the jurisdiction the time the bill of lading is issued the clauses which may subsequently appear goods are already loaded or are at least in the bill of lading. in the possession of the carrier and "no shipper can afford to have his goods unloaded and to delay the ship because he refuses a bill of lading containing a After the contract of carriage has been jurisdiction clause which had not been concluded, the shipper is requested by agreed on". the loading broker to deliver his goods and receives a shipping note in exchange. That situation is merely the extension of a historical reality, in which shipowners have conferred upon themselves as many It is only when the goods which have rights and exemptions from liability as been delivered and brought alongside the possible. In support of that view, the ship by the shipper are loaded on board respondents in the main action refer to ship and a mate's receipt — a document the article by Georges van Bladel, by which the ship's officers acknowledge entitled "Connaissements et Règles de La that the goods have been received on Haye", which states that "the bill of board — is issued by the first officer to lading became a 'document of the shipper that the loading broker will irresponsibility', of no practical value, issue a "shipped" bill of lading to the since the only remaining obligation on shipper. the captain was to obtain payment of the freight", and "the legal warranty given by the carrier had completely In conclusion, according to the re- disappeared". spondents in the main action, "a bill of lading is merely a receipt for the goods between the shipper and the shipowner The respondents in the main action then and a confirmation of the simple ob- point out that all bills of lading are

divided into two parts : one in blank, on consensus ad idem between the parties to which the contract of carriage will be the dispute is not met, since the assignee reproduced, and one printed, containing will never have had any opportunity of the clauses printed unilaterally in giving his consent to any jurisdiction advance by the carrier. The only part clause whatsoever. Moreover, it cannot which has any evidential value is the part seriously be maintained that there is in blank, which according to Article III any permanent relationship between the (4) of the Hague Rules in only prima assignee of a bill of lading and the facie evidence of receipt by the carrier of carrier; the only commercial relationship the goods. The respondents conclude involving the delivery of the bill of lading from that that the bill of lading does not is that between the buyer and the seller constitute "proof that the conditions from whom the buyer received the bill of printed in advance thereon reproduce the lading. Under those circumstances, there consensus existing between the shipper is no relationship between the assignee of and the carrier at the time when the the bill of lading and the carrier of such contract was made". a kind as to warrant the assumption that as regards clauses printed in advance on bills of lading, it would be contrary to good faith for the assignee to deny the existence of a proved consensus between Moreover, according to the respondents himself and the carrier. in the main action, there is no general practice in international maritime trade whereby conditions printed in advance on the bill of lading constitute an oral agreement confirmed in writing between Examining next the bill of lading in the shipper and the carrier. Moreover, question, the respondents in the main those clauses have always been a subject action maintain that it was drawn up of argument and litigation between the after the conclusion of the contract of parties concerned, as is apparent from carriage, after the loading of the goods what the respondents regard as the in a very distant port and without being unanimous opinion expressed in legal signed by the shipper. Such a document writings on the subject and from a therefore cannot constitute evidence that number of cases. the jurisdiction clause was specifically agreed to by the shipper. A fortiori, the assignee could not in any event be bound by such a clause.

(b) Observations of the Italian Govern- In fact, under such a contract concluded ment for the benefit of a third party, the Italian Government observes that the third party seeking to benefit from the In relation to the first question, the stipulation made in his favour acquires Italian Government points out that it is the rights arising from the contract, clear from previous judgments of the itself, irrespective of any acceptance, Court that the purpose of the re- purely by virtue of the stipulation quirement of writing under Article 17 is entered into between the parties. to ensure that the consensus between the parties, who, by a jurisdiction agreement, The same solution ought to be adopted depart from the general jurisdiction rules in the case of the assignee of a bill of laid down in Article 2, 5 and 6 of the lading, since, as from the transfer of the Convention, is clearly and precisely bill to that assignee, the latter may demonstrated and has actually been exercise the rights specified therein and reached. If such a clause is unequivocal is by the same token subject to the in content and if the parties were easily obligations and restrictions arising able to have knowledge of it — the therefrom, provided of course that they relevant findings of fact are clearly to be are clear and that there is no possibility made by the national court — it ought to of error in the wording of the document be regarded as equivalent to the itself. agreement in writing provided for in Article 17 of the Brussels Convention. In fact, according to the Italian Govern- Consequently, the Italian Government ment, a bill of lading constitutes a proposes that the questions referred to document of title to the goods and the Court by the Hof van Cassatie, evidence of the contract of carriage. It is Belgium, should be answered as follows: issued in two originals: one is signed by the shipper or his representative; the "(a) A jurisdiction clause contained in a other is signed by the carrier and is bill of lading may be regarded as issued to the shipper and is normally equivalent to an agreement in transferable. Thus there is a consensus ad writing for the purposes of Article idem between the parties and the 17 of the Brussels Convention if its agreement is signed by each of them. terms are clear, precise and un- equivocal. The second question concerns a situation exhibiting certain similarities to that (b) In so far as the clause is valid which gave rise to the judgment of between the parties who adopted it,

it is also valid as against an assignee given to them, it cannot fulfil its dual of the bill of lading." function "as a document whose assignment transfers both the rights and obligations under the contract of car- riage and also the title to the goods which are subject to those terms". There (c) Observations of the United Kingdom cannot, in practice, be any scope for some additional document which evidence a more specific agreement between the parties, such as the specific The United Kingdom requests that the acceptance of a jurisdiction clause. case be decided in plenary session. Furthermore, there is no logical basis for distinguishing such a clause in a bill of lading from other clauses contained As regards the first question, the United therein. The choice of jurisdiction may Kingdom considers that the view of the well be an important factor in Hof van Beroep, Antwerp, to the effect determining the meaning of a number of that the bill of lading is "essentially a other clauses in the bill of lading. Thus, document intended as a receipt for the a clause conferring jurisdiction on the goods to be carried" fails to recognize English courts may well be dictated by the nature and functions of the bill the fact that the interpretation given to of lading in international commerce; specific terms of shipping law by the moreover, great damage would be done English courts is well known in maritime to international commerce if all the terms circles. expressly stated in the bill of lading were not given full effect, not only as between the carrier and the original shipper, but also in relation to third parties to whom The United Kingdom admits that the bills of lading have been assigned. question whether a bill of lading ought to be categorized as an oral agreement evidenced in writing rather than as an actual agreement in writing has not been According to the United Kingdom, a bill resolved beyond dispute in the United of lading not only constitutes a receipt Kingdom. However, that does not affect for the goods received by the carrier but the force of the previous argument, since also the contract subject to whose terms under Article 17 of the Brussels Con- the goods are carried and a document of vention the two possibilities are valid. title of the goods. The truth of that Furthermore, it follows from Article X statement is demonstrated by reference of the Hague Rules that a bill of lading to the International Convention for the is either an agreement in writing or an Unification of Certain Rules of Law oral agreement evidenced in writing. relating to Bills of Lading, signed at Brussels on 25 August 1924, and generally known as the "Hague Rules", especially Articles 1 (b), III (c), V and VI. Should that interpretation not be accepted, the United Kingdom brings to the attention of the Court the amendment introduced by the 1978 Unless, in international commerce, a bill Convention, which will, when it comes of lading is treated as containing all the into force, put it beyond doubt that a bill terms of the contract, and full effect is of lading complies with the formal

requirements of Artide 17. In that contemplated by that article must be the context, the United Kingdom further parties to the litigation and that those notes that the question asked expressly parties must have agreed to the refers to "the relevant generally accepted jurisdiction clause; however, there is no practices". requirement in Article 17 that the parties must have agreed to the jurisdiction clause inter se, and there is no objection, in the United Kingdom's submission, to In relation to the second question, the the agreement being reached through the United Kingdom submits first that it is a intervention of one or more third parties. fundamental principle of contract law Moreover, the Court has already that an assignee of a contract takes on adopted such an approach in relation to the same conditions as those on which a contract of insurance in its judgment in the assignor held a contract. It follows Gerling Konzern, in particular in from that that if a jurisdiction clause paragraph 18. binds the original parties it must also bind their successors, especially as a bill of lading is freely assignable. As the carrier plainly cannot be a party to The United Kingdom also relies, in the transfer of the bill of lading from support of its view, upon Articles 8 and 9 one holder to another, a ruling that of the 1978 Convention, which provide jurisdiction clauses in bills of lading do that a jurisdiction clause in a contract of not bind successive holders would mean insurance covering damage to the goods that carriers could not rely. on any in transit is valid; as the principles which binding agreement to confer jurisdiction govern the seller's obligations in respect on specific courts. of the bill of lading and the contract of insurance are analagous, it would be damaging to international trade if the Brussels Convention of 1968 did not Analysing next the previous decisions of likewise accept the validity of a the Court, the United Kingdom states jurisdiction clause contained in a bill of that it is well aware that the Court lading. construes Article 17 strictly and that moreover that principle cannot be called in question. However, it is a question of In conclusion, the United Kingdom the strict interpretation of the formal submits "that a jurisdiction clause in a requirements for the validity of a bill of lading complies with the formal jurisdiction agreement. The United requirements of Article 17 both in Kingdom stresses the importance of the respect of the original parties to the bill parties' ability to decide jurisdiction by of lading and in respect of a third party agreement in commercial cases. It is holding the bill of lading." therefore of special importance that the Court should interpret Article 17 in the light of commercial realities, as was expressly stated by Mr Jenard in his report on the Brussels Convention. (d) Observations of the Commission Article 17 would be deprived of a considerable proportion of its usefulness in commercial transactions if the assignee of a bill of lading were not bound by the The Commission stresses first that the jurisdiction clause. It is indeed clear from questions submitted to the Court do the terms of Article 17 that "the parties" not concern the undisputed primacy of

Analysing next the nature of the bill of lading, the Commission submits that it is Like the respondents in the main action, a document universally used in sea the Commission takes the view that it is transport and, issuing from the carrier, clear from the judgments of the Court constitutes "evidence of an agreement that Article 17 must be interpreted between the shipper and the carrier but strictly, especially in relation to juris- not an agreement in itself". The bill of diction clauses in bills of lading, in view lading is often an oral agreement of the fact that the court designated is in evidenced in writing within the meaning general the court for the place where the of Article 17 of the Brussels Convention. carrier has its registered office, which Thus it is necessary to apply the very often has no fundamental link with principles formulated by the Court in the carriage and therefore with the Segoura and Salotti. Pointing out that in disupute. almost all cases the shipper is not aware of the conditions contained in the bill of lading at the time when the contract of carriage is concluded, the Commission contends that under those circumstances The Commission adds that, notwith- the jurisdiction clause is not valid under standing the suggestion made by the Hof Article 17 unless it has been expressly van Cassatie, the interpretation of Article accepted in writing by the shipper. In 17 ought not to take into account the practice, the shipper rarely signs the bill generally accepted practices in the field of lading and in any event did not do so in question. Indeed in its view, an in this case. agreement implied by reference to commercial practice does not constitute an "agreement" within the meaning of Article 17, since clear and precise acceptance is required for that purpose. Consequently, for the jurisdiction clause Moreover, the strict formal requirements to be valid under Article 17 of the — an agreement in writing or evidenced Brussels Convention it is necessary for in writing — cannot be relaxed on the parties either to sign the back of the account of commercial practice and bill of lading on which the clause appears should be interpreted independently, or to sign the front, expressly mani- without reference to such practice. The festing their intention to accept all the history of the negotiations relating to the clauses and conditions contained in the Convention of Accession of 1978 also bill of lading. It would only be shows that Article 17 does not permit the exceptionally, in the case where there is existence of a written agreement by a continuing trading relationship be-

tween the shipper and the carrier, that it the third party acts in his own would be contrary to good faith for the right and not as the suc- shipper to deny the existence of a cessor-in-title of the shipper jurisdiction conferred by consent, even and cannot rely upon the though he had given no acceptance in defences available to the writing (cf. Segoura). shipper. However, if the Court accpets that theory, the In relation to the second question, the jurisdiction clause is binding on Commission considers various hypo- the third party by virtue of theses: Article 17, provided that it is binding on the shipper and the 1. Either the bill of lading is a assignment is valid under the negotiable instrument, which can be law of contract. pledged and which incorporates the right of property in the goods. In (¡i) The theory of implied that case, the requirements of agreement, according to which commerce would imply that the the fact that the third party provisions of the bill of lading claims delivery of the goods in binding the shipper should also bind reliance upon the bill of lading the third party to whom the bill of constitutes acceptance of the exchange is assigned. However, the carrier's offer; however, such jurisdiction clause would not con- an agreement, which is not stitute an "agreement" within the confirmed in writing and ac- meaning of Article 17 of the Brussels cepted by the third party, does Convention. not comply with the requirements of Article 17. or (iii) The theory of the clause for the 2. The jurisdiction clause is regarded as benefit of third parties, a contractual clause. In that case, if according to which the bill of the bill of lading is signed by the lading contains clauses con- third party, the jurisdiction clause is cluded by the shipper for the valid under Article 17 on the same benefit of the third party to conditions as those postulated in the whom the bill is assigned. In examination of the first question. If that case, the third party may the third party has not signed the bill rely upon the jurisdiction clause of lading, there are different theories but that clause cannot be raised in the national legal systems whereby against him if he elects to sue he may be held to be bound on a before the court which has contractual basis by the clauses of jurisdiction under Articles 2, 5 the bill of lading. It is for the and 6 of the Brussels Con- national court to determine whether vention. there is a contractual basis founded on one of those theories. The In conclusion, the Commission considers Commission refers to three theories: that the questions referred to the Court by the Hof van Cassatie should be (i) The theory of assignment, answered as follows: according to which the shipper- assigns his rights and ob- "Question 1 ligations to the third party. That theory has been widely The bill of lading issued by the carrier criticized on the ground that to the shipper may be regarded as an

'agreement evidenced in writing' between the European Communities, represented the parties within the meaning of Article by Professor H. Van Houtte and E. 17. The jurisdiction clause is applicable if Zimmermann. the parties have assigned the bill of lading. If the jurisdiction clause appears in the general conditions, the shipper must have accpeted them expressly and The Italian Government explained more in writing. The text of the bill of lading precisely its views on the first question. It signed by the two parties must expressly stated that in its opinion a bill of lading refer to those general conditions. constitutes a document proving the However, if there is a continuing trading existence of the contract of carriage and relationship between the carrier and the at the same time a document of title to shipper which is as a whole governed by the goods and that the jurisdiction clause the conditions contained in the carrier's constitutes a kind of oral clause bill of lading, the jurisdiction clause is confirmed in writing, provided that it applicable even in the absence of ac- bears the signature of the party against ceptance in writing. whom the clause is relied upon. Finally, such a clause forms part of the general conditions of the contract. Therefore, it submitted that if those requirements are Question 2 satisfied, that is to say, if the jurisdiction clause constitutes an oral clause confirmed in writing and bearing the signature either of the shipper or of the The bill of lading issued by the carrier to shipping agent and if it constitutes one of the shipper cannot be regarded as an the general conditions of the contract, in 'agreement evidenced in writing' within that case it may be in conformity with the meaning of Article 17 as regards a Article 17 of the Brussels Convention. third party to whom the bill of lading is However, according to the Italian assigned, unless the third party is bound Government, only the national court by an agreement with the carrier under may determine whether there is a real the relevant national law and the bill of signature in the sense described above lading, as evidence in writing of that and how the clause was included in the agreement, complies with the formal bill of lading. conditions laid down in Article 17."

should be limited. Thus, the question Kingdom, only the national court is in a should not relate to the bill of lading but position, on the basis of the precise facts only to the jurisdiction clause, and the of the case, to determine the nature of question should be worded as follows: the bill of lading. Only at a subsequent Was that jurisdiction clause incorporated stage does Community law come into in the bill of lading in a manner showing play. Therefore the United Kingdom is that there was a genuine agreement of the opinion that no general reply between the parties, account being taken should be given to the first question, on of the principle of good faith? According the ground that there are several possible to the United Kingdom, the reply to sets of circumstances. such a question depends on the precise facts of the case, which are unkown. The Advocate General delivered his Consequently, according to the United opinion at the sitting on 21 March 1984.

Decision

1 By an order dated 8 April 1983, which was received at the Court on 28 April 1983, the Hof van Cassatie [Court of Cassation], Belgium, submitted, in accordance with the Protocol of 3 June 1971 on the Interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters [hereinafter referred to as "the Convention"], a question for a preliminary ruling on the interpretation of Article 17 of that Convention.

2 The question was raised in proceedings brought by the Belgian limited company " N V Goeminne Hout" against the German shipowner "Parten- reederei ms Tilly Russ" and Mr Ernest Russ, both of Hamburg, concerning the validity of a jurisdiction clause contained in bills of lading Nos CT 108 and CT 118 dated 16 August 1976. It appears from the documents before the Court that those bills of lading were drawn up for the carrier by Tolmar International Inc., Cleveland, as agent for Europe Canada Lakes Line, Ernest Russ — North America, Inc., Chicago, to the order of the shipper, American Lumber International Inc., Union City, Pennsylvania, Goeminne Hout being indicated as "notify party" and Tilly Russ as "exporting carrier".

7 That question must be construed as asking whether the-jurisdiction clause contained in the bills of lading satisfies the conditions laid down in Article 17 of the Convention as regards, first, the relationship between the shipper and the carrier and, secondly, the relationship between the carrier and a third party holding the bill.

T h e first p a r t of t h e q u e s t i o n

8 According to Goeminne Hout and the Commisison of the European Communities, Article 17 of the Convention should be interpreted as meaning that where a jurisdiction clause is not expressly accepted by the shipper and the carrier it is not valid within the meaning of that provision.

TILLY RUSS / NOVA

9 The Commission adds, however, that even if it was not signed by the shipper such a clause may nevertheless be valid under Article 17 of the Convention, provided that there is a continuing trading relationship between the parties.

10 The Italian Government considers that a bill of lading is a document proving the existence of the contract of carriage and that the jurisdiction clause therefore constitutes an oral agreement evidenced in writing. If it is signed by the party against whom it is invoked and forms part of the general conditions of the contract, then it may be in conformity with Article 17 of the Convention. However, according to the Italian Government, it is for the national court to ascertain whether there is a signature in the sense indicated above and in what circumstances the jurisdiction clause was incorporated in the bill of lading.

15 In order to decide whether the conditions laid down in Article 17 are satisfied, it is necessary to consider separately whether the agreement of the parties to the choice of jurisdiction was expressed in the form of a written agreement or in the form of an oral agreement evidenced in writing.

16 In the first place, it must be observed that, where a jurisdiction clause appears in the conditions printed on a bill of lading signed by the carrier, the requirement of an "agreement in writing" within the meaning of Article 17 of the Convention is satisfied only if the shipper has expressed in writing his consent to the conditions containing that clause, either in the document in question itself or in a separate document. It must be added that the mere printing of a jurisdiction clause on the reverse of the bill of lading does not satisfy the requirements of Article 17 of the Convention, since such a procedure gives no guarantee that the other party has actually consented to the clause derogating from the ordinary jurisdiction rules of the Convention.

TILLY RUSS / NOVA

17 Secondly, if it was established that the jurisdiction clause contained in the conditions printed on a bill of lading was the subject of a prior oral agreement between the parties expressly relating to the jurisdiction clause and that the bill of lading, signed by the carrier, was to be regarded as the written conformation of that oral agreement, such a clause would satisfy the conditions laid down in Article 17 of the Convention, even if it was not signed by the shipper and therefore bore only the signature of the carrier. In fact, not only is the letter of Article 17, which expressly provides for the possibility of an oral agreement evidenced in writing, thereby observed but in addition its function, which is to ensure that the agreement of the parties is clearly established, is also fulfilled.

T h e s e c o n d p a r t of t h e q u e s t i o n

20 As regards the validity of the jurisdiction clause as between the carrier and a third party holding the bill of lading, Goeminne Hout and the Commission are of the .opinion that if the third party has not signed the bill of lading the jurisdiction plauše appearing on it is not enforceable against him since the agreement between the parties is not established.

21 According to the Commission, an exception may be made to that rule only if the national legal order in question embodies a theory of assignment whereby the shipper assigns his rights and obligations to the third party.

22 The Governments of the Italian Republic and the United Kingdom consider that, in so far as the jurisdiction clause is valid as between the shipper and the carrier, it should also be valid as against a third party holding the bill of lading, on the ground that if, by acquiring the bill of lading, such a third party becomes entitled to exercise the rights mentioned therein he must at the same time also become subject to the obligations and limitations deriving thereform; both governments base their view on the judgment of the Court of 14 July 1983 in Case 201/82 (Gerling v Amministrazione del Tesoro dello Stato, [1983] ECR 2503).

23 In this regard, it must be noted that the Gerling decision concerned a case in which a third party to an insurance contract, containing a stipulation made for his benefit by the insured, relied upon a jurisdiction clause as against the insurer, the clause being inspired, as the Court pointed out by a concern to protect the insured, who "is in a weaker economic position". The same considerations are not necessarily relevant to the carriage of goods by sea.

Costs

27 T h e costs incurred by the G o v e r n m e n t of the Italian Republic and the United K i n g d o m and by the Commission of the E u r o p e a n Communities, which have submitted observations to the C o u r t , are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision o n costs is a matter for that court.

JUDGMENT OF 19. 6. 1984 — CASE 71/83

On those grounds,

THE COURT

in reply to the question submitted to it by the Belgian Hof van Cassatie by order of 8 April 1983, hereby rules:

Pescatore O'Keeffe Bosco Due Everling

Delivered in open court in Luxembourg on 19 June 1984.

P. Heim T. Koopmans Registrar President of the Fourth Chamber