(b)

If the question is asked whether the Belgian Government could have intervened in the original case, there is no doubt that according to the provisions in force (Article 34 of the Statute and Article 93 of the Rules of Procedure) the application to intervene would have been admissible. Having regard to the generous attitude known to have been taken by the Court in its previous decisions it would have been impossible to deny the Belgian Government a general interest in taking part in the proceedings, for, according to the object of the application, important domestic economic developments in Belgium and the scope and effect of the principle of the free movement of goods were at issue, and this has a special significance for Belgium as an important transit country for goods. Actually however — and the applicant is right on this point — such a consideration is not sufficient. If every possibility, however remote and vague, of an injury to interests obliged interested parties to intervene, not only would they be overburdened by the necessity of following other people's lawsuits closely, but the Court would be threatened by a flood of possible interventions. In order to establish a correct balance between interventions and third party proceedings it is indispensable to take certain considerations into account. First the nature of intervention must be considered. It allows participation in another's lawsuit on condition that the conclusions of a party to the case are supported and in a manner which conforms with them. Our procedure does not provide for interpleader proceedings whereby a third party may pursue claims of his own against both parties to the principal action (cf. paragraph 64 of the German Code of Civil Procedure). It is possible therefore that the legal limits imposed on the intervener do not permit him to prevent an injury to his rights. In these circumstances, which certainly do not apply in this case, as a comparison of the legal issues in dispute with those in the previous action illustrates, intervention is not an effective way of protecting rights and cannot therefore be considered for the purpose of determining the admissibility of an application originating third party proceedings. As third party proceedings are intended to remedy an injury to a right, the question must then be asked whether the injury was foreseeable and therefore could have led to intervention. This is the proper legal context for the applicant's argument that it could only have become aware of having a reasonable interest in taking part in the action once the High Authority had submitted certain arguments during the oral procedure in the original case. What the applicant has indicated as being the subject matter of the dispute in Case 9/60 is published in the Official Journal of the European Communities of 25 May 1960 (page 808): ‘The application is brought against the Community for pecuniary compensation for damage suffered by the applicant and caused by the alleged wrongful act or omission on the part of the Community in the course of implementing the Treaty. The wrongful act or omission is said to consist in the refusal or at least the prolonged failure of the High Authority, in spite of the applicant's requests, to take, with regard to the Government of the French Republic and/or the “Association technique de l'importation charbonnière” (ATIC), a public body under the supervision of the French State, the measures laid down in the Treaty in order to compel them to observe the principle of the free movement within the Common Market of coal originating in third countries, which is or in any event was in free circulation in a Member State, and to effect the withdrawal of the prohibition repeatedly imposed in the years 1957, 1958 and 1959 by the French authorities with regard to French importers and/or business undertakings on the conclusion of sales agreements with the applicant for the delivery of such coal and in any case to bring to an end the systematic refusal of the French authorities to authorize the said agreements and to issue the relevant import licences.’ There was therefore every reason to expect in the judgment a discussion of the principle of the free movement of goods in which the questions of fact and law to which it is subject would be considered. On the other hand what are the rights which, it is alleged, have been injured? (In connexion with the examination of the question of admissibility it is not yet necessary to consider whether they in fact exist.) The applicant is of the opinion that in the third party proceedings against the contested judgment the following findings must be recorded: — the Belgian regulations tor the import and export of coal from third countries do not infringe the Treaty; — the import of coal from third countries by the Vloeberghs company and its export to France took place on the basis of properly made-out documents; the Belgian Government by issuing these documents did not contravene the Treaty; — the contested judgment limits the Belgian Government's power to make regulations; — the contested judgment assesses incorrectly the motives which guided the Belgian Government in the exercise of its power to make regulations and in the application of existing legal provisions; — the judgment casts unjustified suspicion on the Belgian Government which thereby suffers damage of a non-material nature. If these findings are compared with the issues of the action as published, it is hard to say that, having regard to the objects of the original action, there is any cause to expect findings in the judgment of the type described and to intervene for this reason. Finally the following should be noted. Case 9/60 was an application by a private undertaking which in pursuit of its private interests made a claim for compensation against the Community. The subject matter of the action offered many opportunities of settling questions of law and fact, not every one of which was capable of affecting the special interests of the Belgian Government. As a member of the Community the Belgian State and consequently the Belgian Government, whose representative together with the representatives of other Governments consitute the Council of Ministers which is an essential organ of the Community, is under a duty to safeguard the interests of the Communities. It is for that reason understandable and appropriate that the Belgian Government should consider with restraint and hesitation whether to intervene in proceedings brought by private undertakings. All these circumstances taken together permit the conclusion, in the context of the present proceedings and their objective, that the Belgian Government could be under no obligation to intervene in the original case and prevent the alleged prejudice to its rights. It was unable, within the meaning of Article 97 (1) (c), to take part in the original case and is therefore entitled to lodge an application originating third party proceedings.