3.

Consequently, it must be considered whether the third party could have defended its rights at the proper time by way of voluntary intervention and ought to have done so in order to avoid being criticized for having neglected its own interests. In the first case of third party proceedings I pointed out that in examining this question a number of pertinent considerations arise. First the special features ofintervention proceedings must not be overlooked (participation in an action to which one is a stranger in the context of the conclusions of another party). The question is whether the legal opportunities for intervention could have made it at all possible to prevent a right from being prejudiced. On the other hand the injury to the right must have been forseeable and that is why, as I have also emphasized, a vague probability coupled with several possible solutions of the main action is insufficient. On the contrary, the intervention must, on a reasonable and objective consideration of all the circumstances, have been so obvious that failure to take this step clearly affords grounds for criticism and therefore justifies the exclusion of extraordinary review procedures after the termination of the proceedings. How does the present case appear in the light of these principles? The character of the alleged prejudice to rights is disclosed by the object of the application originating third party proceedings. In the wording of the conclusions of the applicant it appears as follows : ‘To rule that the arisings of ferrous scrap received by Hoogovens from the third party under the “maatschap” contract concluded between them are Hoogovens' own resources or at least are not bought scrap’. The third party has correspondingly framed its arguments for the defence and enforcement of its presumed legal claim. Its rights are said to be prejudiced by the findings in the judgment concerning the relationships with regard to ownership of the scrap used by Hoogovens. The object of the original case was a request by SNUPAT seeking to have revoked all exemptions from equalization of scrap. In such proceedings it was to be expected that the Court would have to deal with the preliminary question whether the exemptions complained of were legal or illegal, since only in the latter case could revocation be considered. The Court had therefore to consider all arguments which were likely to justify the exemptions, including the argument that scrap used by the exempted undertakings was to be regarded as their own and not bought scrap. The result is that the alleged injury to rights was already foreseeable before the conclusion of the original case. It fell within the scope of the subject matter of the original case and taking part in the original case was unquestionably an appropriate way of preventing it. Only Hoogovens, which benefited directly from the exemptions, took part in the proceedings with the specific aim of preventing the result which it feared. We must therefore ask ourselves whether there are reasons justifying the failure of Breedband to intervene. Breedband does not claim to have had no knowledge of the proceedings and their content. It is clear from the pleadings in the present case that Hoogovens and Breedband have the same management. Also when in the original case there was an inspection of the premises representatives of Breedband were present. It can be assumed with confidence that Breedband was most accurately informed of the original case. Breedband is now attempting to cast doubt on the question whether it had a sufficient interest to justify its intervention, on the grounds that the exemption was only intended for Hoogovens. This argument contrasts strangely with the statement of reasons given in the application originating third party proceedings. Precisely from the point of view of the third party there must have been an imperative interest in intervening, for it now alleges an infringement of its own rights by the judgment of the Court, that is to say a prejudice to its rights which was certainly foreseeable at the time of the original case. There is without any doubt a close economic and legal connexion between Hoogovens and Breedband, which at least permits the assumption that they pool their profits and losses. Whether it constitutes a sufficient interest for intervening would appear to be questionable according to the principles of national law. According to the principles established by the existing case-law of the Court with regard to intervention, such an interest can be affirmed without hesitation. It was not a lack of interest in the original case but other reasons therefore which must have led to the waiver of intervention. I should like to assume that Breedband considered, as it did in the recently argued Case 14/61, in which Hoogovens challenged the revocation of the exemption, and the demand made by the High Authority for payment of the equalization contributions, that its interests were sufficiently defended by the intervention of Hoogovens. Although Breedband in the present proceedings produced for the better information of the Court the contract to which Hoogovens referred in the original case but deliberately refrained from producing, it was not with the intention of accusing its contractual partner of conducting the case badly. Furthermore, such an accusation would be scarcely intelligible, because it must be concluded from the arguments in the third party proceedings that Hoogovens did not decide its tactical conduct in the proceedings without consulting Breedband, which is all the more likely as the persons running both companies are the same. All this leads me to the conclusion that Breedband did not do all that was necessary and reasonable in the original case to defend its interests, although the course of the proceedings should have suggested that intervention was a matter of urgency. Breedband was therefore within the meaning of Article 97(1)(c): ‘able to take part in the original case’, and is therefore precluded from bringing an application originating third party proceedings. Any other view would mean that a type of appeal would be available against the Court's judgments whereby evidence could be adduced which had been deliberately withheld in the original case. In my opinion it is precisely the facts in this case which clearly show the necessity of setting strict limits to the admissibility of third party proceedings, if the danger of continual reopening of cases which have been finally concluded is not to be created.