OPINION OF MR ADVOCATE GENERAL LAGRANGE ( 1 )

Mr President,

Members of the Court.

The Court has before it an application by the Associazione Industrie Siderurgiche Italiane (ASSIDER) for the interpretation of point 11 in Section II of Part A of the grounds under the heading ‘Law’ of the judgment in Case 2/54 (judgment given in an application by the Italian Government) ‘to the whole of which’ passage, it is alleged, ‘the judgment in Case 3/54 refers’ (that is to say, the judgment in the action brought by ASSIDER itself).

The part of the judgment in Case 2/54 which the Court is asked to interpret is that where it was held that the claim by the Italian Government of infringement, by Article 1 of Decision No 2/54, of Article 30 of the Convention on the Transitional Provisions was well founded.

After setting out its point of view, the applicant association concludes as follows:

‘We are confident that the Court will interpret the judgment referred to above as meaning that Article 30 (2) of the Convention on the Transitional Provisions prohibits alignment by non-Italian undertakings on the Italian market; and that, on the other hand, it does not prohibit within the Italian market alignment by Italian undertakings on the prices of other Italian undertakings or alignment by Italian undertakings on the prices of other non-Italian but Community undertakings.’

The application, which satisfies the requirements of Articles 20 and 22 of the Statute and Article 29 of the Rules of Procedure is in due form. There is no prescribed period for making the application.

I

The question however is whether the application is admissible under the terms of Article 37 of the Statute which has expressly provided for an application for interpretation.

It is worded as follows: ‘If the meaning or scope of a judgment is in doubt, the Court shall construe it on application by any party or any institution of the Community establishing an interest therein.’

ASSIDER was not a ‘party’ to the action which gave rise to the judgment in Case 2/54, the interpretation of which is requested; that judgment was given in an action between the Italian Government and the High Authority. ASSIDER was a party to Case 3/54 and, contrary to what it alleges, it is not true that the matter ‘refers to the whole of point 11 of the judgment in Case 2/54.’ In truth it does not even make reference to that judgment, at least on the issue with which we are concerned, namely the application for annulment of Article 1 of Decision No 2/54. In this respect it is limited to declaring the application to have no purpose on the ground that Article 1 of Decision No 2/54 was ‘for all purposes annulled by judgment of 21 December 1954’ in Case 1/54. That judgment was given in Case 1/54 brought by the French Government in which there is only a short reference to Article 30. The reasoning which has given rise to the present application for interpretation is not referred to there, which is quite understandable since the French Government had made no allegation of the infringement of this provision, which specifically concerns the Italian market.

Should, then, the application by ASSIDER be dismissed as inadmissible on the sole ground that ASSIDER was not a party to the action which gave rise to the judgment the interpretation of which it is requesting, namely that in Case 2/54?

I do not think so.

It must not be forgotten that we are concerned here with applications for annulment which are subject to special rules, in particular as regards the authority of res judicata. If the general principle of the relative authority of res judicata continues to apply where an application is dismissed there is an exception in the case of annulments expressed to be ‘for all purposes’. This is precisely what the Court stated in its judgment in Case 3/54 and this is what enabled the Court to declare ASSIDER's application for annulment as having no purpose in so far as there had been a declaration of annulment when the first action, that by the French Government, was considered. There is no doubt that in strict law the Court could perfectly well have given the same judgment in Case 2/54 since there had been no order joining the cases. It obviously did not depend on ASSIDER that another course, just as lawful, was adopted by the Court with regard to it. It therefore seems to me that where there are a number of applications made against the same decision and, where on one of those applications the decision is annulled, the other applicants may be regarded as ‘parties’ within the meaning of Article 37 of the Statute and must be allowed to ask for the interpretation of a judgment which was in fact given with regard to them even though the Court simply stated that it was ‘not necessary to give a ruling’. (It would have been otherwise, of course, if the application had been dismissed as inadmissible). It seems to me also that, in the very special case where, although not being bound to do so legally, the Court has given an express decision on an application for annulment made by a party in spite of the fact that a declaration of annulment has already been made in an earlier application, every other party who duly applied for the annulment of the same decision is entitled to ask for the interpretation of either of the judgments accepting the applications for annulment (and to the extent to which they were so accepted). This in any event ought to be so in a case such as the present where the claim for annulment recognized as well founded by the Court was likewise made by the party in respect of whom it was said there was no need to give a ruling.

II

However, although ASSIDER appears to me to have overcome this initial obstacle and may be considered (with a rather considerable effort of interpretation, it is true, but one which I consider justified) as ‘a party’ within the meaning of Article 37 of the Statute, on the other hand, I do not think its application satisfies another condition required by the article, namely that ‘the meaning or scope of a judgment is in doubt’.

The application for interpretation is a special legal remedy making it possible to obtain an interpretation of an obscure or ambiguous provision contained in a judgment from the very court which gave that judgment: it is one of the rare applications in modern law of the maxim ‘ejus est interpretari cujus est condere’ and is an exception to the principle according to which the Court is functus officio — that it has exhausted its jurisdiction — once it has given judgment.

In the national law of the countries of the Community the application for interpretation is known as such only in France and Belgium; in both countries too it is purely the offspring of case-law. In the other Member States difficulties which may arise on the enforcement of a judgment can be resolved only by bringing a new action whereby the court having jurisdiction (which may well be, and usually is, a different court) will have, if need be, to interpret the judgment in order to apply it as if it were the wording of a law or regulation.

The application for interpretation exists likewise before certain international courts where it is expressly provided for. This is the case in particular with Article 60 of the Statute and Article 79 of the Rules of Court of the International Court of Justice.

Whether, however, it be in national or international law the principles are the same. They may be summarized as follows:

1. There must be a doubt. This doubt must be specific and of such a nature as to interfere with the enforcement of the judgment (the word ‘enforcement’ is here understood in the widest sense and not as meaning ‘means of enforcement’). The courts are not there to give consultations of an academic nature on the judgments which they have given. On the other hand, it is not necessary that there should be a true action involving conflicting claims by the parties. At least this is not required in this Court since Article 37 of the Statute states ‘if the meaning or scope of a judgment is in doubt’ and does not mention ‘dispute’ as does the Statute of the Court at the Hague (the word ‘dispute’ calls forth more strongly the idea of an action) and, further, Article 37 allows the institutions of the Community to apply even though they were not parties to the main action. It may well be that in such a case the two parties are in full agreement. The first condition is therefore that there should be a specific doubt and that it must relate to the enforcement of the judgment.

2. The doubt must relate to an issue decided by the judgment without reopening what was decided. This is very important. It is not possible to attack what was decided under the pretext of interpretation. From this it follows that the Court cannot, for the benefit of an application for interpretation, restrict, extend or amend the rights arising out of its judgment and must limit itself to giving an interpretation where, as a result of some ambiguity in the wording, the judgment has left the extent of the consequences of what it involves in doubt: French Cour de Cassation, Req. 10 December 1902; ( 2 ) Civ. 15 July 1902; ( 3 ) Civ. 23 June 1924; ( 4 ) French Conseil d'Etat, Héritiers Berton,8 August 1895. ( 5 ) It also follows from this that the application for interpretation can relate only to the part of the judgment which has the authority of res judicata, that is to say, in principle, the operative part. This is indeed the rule that only the operative part has the authority of res judicata although it may be clarified by the grounds; this rule is commonly recognized, to my knowledge, in our six countries. Allow me to cite a particularly clear judgment in France to this effect: Tribunal des Conflits, 12 December 1942, de Murard. ( 6 ) It follows further from this that the court which has given the judgment, the interpretation of which is sought, cannot substitute itself for the court which has jurisdiction with regard to means of enforcement. (In this sense a contrario French Cour de Cassation, 7 May 1946). ( 7 ) This is understandable since, on the one hand, the procedure of the application for an interpretation must not interfere with the system of jurisdiction or, consequently, prejudice the jurisdiction of the court having jurisdiction to enforce the judgment and, on the other hand, the main if not the only use of this rather special procedure is to try to avoid, by anticipating them, subsequent difficulties and a new action regarding enforcement. So much for national law. We find a very interesting precedent in international law, namely the judgment of the Permanent Court of International Justice given on 16 December 1927 between the German Government and the Polish Government in the case called Chorzów Factory Case. The Court at The Hague in that case gave an interpretation of a passage in a previous judgment on the meaning and scope of which the parties disagreed. On that occasion the Court defined the conditions of admissibility of an application for interpretation and it clearly made such admissibility subject to the existence of a dispute between the parties as to what the judgment under interpretation decided with binding force. It also recognized that it was within its jurisdiction, where appropriate, to give a ruling on the question whether one or other part of the judgment did or did not have binding force. One of the judges, Judge Anzilotti, who was in the minority, gave a dissenting opinion; but in fact it appeared that, albeit with greater legal strictness, Judge Anzilotti adopts the same legal principles as the majority of the Court and parts company from them in the application to the particular case. He took the view that on one issue there was no true dispute between the parties and therefore no doubt and that on the other issue the application for interpretation in fact sought judgment on a new question which was at that time pending before the court. He thus concluded that the application was not admissible.

3. There must be a real obscurity or ambiguity in the judgment. If the judgment is clear there is obviously nothing to interpret and the application must be dismissed. Let me cite for example in France: Conseil d'Etat, Dame Veuve Guillemain9 July 1926; ( 8 ) Conseil d'Etat, Secrétaire d'Etat à la Présidence du Conseil, 7 July 1950. ( 9 ) The latter judgment is interesting because it relates to the interpretation of a judgment given on an application for annulment and it is the only such instance of which I know. Sometimes the judgment declaring that there is neither obscurity nor ambiguity is accompanied by various remarks which are nevertheless useful. For example, Conseil d'Etat, Ville de Bagnères de Luchon,28 November 1934. ( 10 ) In international law I should like to refer once again to the judgment of 16 December 1927 of the Permanent Court of International Justice which did not hesitate to give an interpretation of its previous judgment setting out extensive grounds therefor and thus recognizing that the previous judgment was ambiguous. These, therefore, I think are the three conditions which are required for admissibility of an application for interpretation. As to the procedure, it must, in my view, involve adversary proceedings in spite of the rather special nature of the action and in particular of the fact that it does not necessarily require that there should be a true ‘dispute’. It is indispensable for the parties to meet face to face: the parties to the first action must be cited whatever their claims or observations. Further if the application is declared to be admissible and the interpretation is given it can only be in the very form in which the judgment under interpretation was given. It is necessary that the judgment giving the interpretation should have the same force of res judicata as the judgment interpreted of which it must henceforth form part. It is a matter of principle that the judgment of a court given gratuitously does not have the force of res judicata (Solus, Cour de Droit Judiciaire Privé, 1953-1954, No 646; Cuche, Précis de Procédure Civile, Tenth Edition, No 77). I do not think there are any valid reasons for the Court to depart from these generally recognized principles. As regards procedure in particular the Court has already, in my opinion, clearly adopted the position as indicated by deciding that in an application for interpretation ‘the Court shall give its decision in the form of a judgment’ (Article 78 of the Rules of Procedure).

III

If these principles are accepted, it is necessary to apply them to the case now before the Court. Here my comments will be brief.

First of all I think that the first condition, namely the existence of a doubt, is fulfilled. It is clear that, as drafted, Article 30 of the Convention leaves open the issue whether it intended to prohibit the practice referred to as alignment, that is to say, the application of the provisions of Article 60 (2) (b) of the Treaty, even to Italian undertakings within the Italian market. This is a problem. Further the doubt is a specific one since the High Authority, after adopting a favourable attitude to the existence of the right of alignment between Italian undertakings, thought it right to adopt a contrary position as a result of the first judgments of the Court.

On the other hand, I do not think that the application before the Court fulfils the second condition since the application for interpretation does not relate to an issue which was decided.

What did the Court decide in the judgment the interpretation of which is requested?

It decided that Article 1 of Decision No 2/54 was contrary not only to Article 60 but also to Article 30 of the Convention on the Transitional Provisions. Why? Because (I quote): ‘Even if it is thought that Article 30 of the Transitional Provisions is particularly intended to prevent prices from being aligned on those of Italian undertakings it does not necessarily follow that this provision does not give other protection as well. To claim the contrary would really be begging the question, for in the absence of clear and precise provision it is quite legitimate to accept that the Convention intended to give the Italian undertakings temporarily and by way of exception the unlimited advantage of the protection which it provides for these undertakings. The actual objective of this provision is therefore to prevent the non-Italian undertakings from competing with the Italian undertakings on the Italian market by undercutting their own price-lists.’

It is thus solely a question of the protection of the Italian market against non-Italian undertakings.

It is true that the judgment then uses very general wording but at no time does it state that the objective of Article 30, apart from the protection of the Italian market against external markets which this provision has just been recognized to have, is also to achieve certain measures of protection purely internal to the Italian market. That is quite another question which was not the subject of any argument during the trial, did not have to be settled and was not settled.

For that reason I think the application is inadmissible.

Article 60 of the Rules of Procedure provides that ‘in contentious matters the unsuccessful party shall be ordered to pay the costs’. This provision is mandatory. I am sorry to say that it prevents the Court from taking into account any considerations of fairness and in particular the fact that in the present case it was at the instigation of the High Authority that ASSIDER decided to bring an application for interpretation.

My opinion is that:

The application should be dismissed and ASSIDER be ordered to bear the costs.

( 1 ) Translated from the French

( 2 ) Dalloz p. 109.

( 3 ) Sirey 1907, 1. 162.

( 4 ) Sirey 1925, 1. 337.

( 5 ) Recueil, 1895, p. 666.

( 6 ) Recueil, 1943 p. 319.

( 7 ) Dalloz. 1947 Jurisprudence p. 3.

( 8 ) Recueil, 1926, p. 730.

( 9 ) Recueil, 1950. p. 427.

( 10 ) Recueil, 1934, p. 1122.