Panhellinia Omospondia Idioktiton Frontistririon Xenon Glosson (POIFXG) and Others v. The Republic (Greece) and the E.C. Commission (Case 147/86 TO 1) Before the Court of Justice of the European Communities ECJ (Presiding, Due C.J.; Slynn, Kakouris,, Schockweiler and Zuleeg PP.C.; Koopmans, Mancini, Joliet, O'Higgins, Moitinho de Almeida, RodrÍguez Iglesias, Grévisse and DÍez de Velasco JJ.) Mr. Francis Jacobs, Advocate General 6 December 1989 Third-Party Action under Article 39 of the Statute of the Court to Rescind Court Judgment. Provisions Considered: EEC 169 ECJ Statute (Arts. 37, 39) European Court procedure. Third-party proceedings. Natural persons. Although natural and legal persons are specifically authorised to institute thirdparty proceedings under Article 39 of the Statute of the Court, that only applies as against cases in which they had a right to appear (either as parties or as interveners). Consequently, they have no right to institute third-party proceedings against a judgment given in Article 169 proceedings. [18] In case 147/86, Re Private Teaching: E.C. Commission v. Greece, the Court had held that Greek law had infringed Articles 52 and 59 EEC by forbidding Community nationals other than Greeks to engage in private teaching. A trade association of teaching establishments and several individuals who considered
themselves harmed by it brought *943 third-party proceedings against that judgment, under Article 39 of the Statute of the Court. On a preliminary issue of admissibility raised by the Commission, the Court, dispensing with an oral hearing, held that when read with Article 37 of the Statute (which denies to private parties a right to intervene in Article 169 proceedings) Article 39 should be interpreted in the same way, that therefore private parties had no right to institute third-party proceedings against Article 169 judgments, and dismissed the action as manifestly inadmissible. Representation Antonis Efstathiou, Roula Kaklamanaki and Andreas Kalogeropoulos for the applicants. Georgios Kremlis, of the E.C. Commission's Legal Department, for the respondent Commission. The following cases were referred to in the order: 1. Re Private Teaching: E.C. Commission v. Greece (147/86), 15 March 1988: [1988] E.C.R. 1637, [1989] 2 C.M.L.R. 845. Gaz:147/86 2. Belgium v. Soc. Commerciale Antoine Vloeberghs and the High Authority (9 & 12/60), 12 July 1962: [1962] E.C.R. 171, [1963] C.M.L.R. 44. Gaz:9A/60 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE ORDER [1] By application lodged at the Court Registry on 13 May 1988, Panhellinia Osmospondia Idioktiton Frontistirion Zenon Glosson - POIFXG (Greek Association of owners of coaching establishments for foreign languages), a second-tier trade association, and Vassilios Evangelos tou Georgiou, Maria Ioannou Georgouli, Vassiliki Spanouli-Brachou, Ioannis Lambogiannis tou Anastassiou and Georgios Englezos tou Stamatiou instituted third-party proceedings, pursuant to Article 39 of the Protocol on the Statute of the Court of Justice (hereinafter referred to as 'the Protocol') and Article 97(1) of the Rules of Procedure, against the Court's judgment of 15 March 1988 in Case 147/86, E.C. Commission v. Greece. [FN1] FN1 [1988] E.C.R. 1637, [1989] 2 C.M.L.R. 845. [2] In the contested judgment the Court held that, by prohibiting nationals of other member-states from setting up coaching establishments known as ' frontistiria' and private music and dancing *944 schools, and from giving private lessons at home, the Hellenic Republic had failed to fulfil its obligations under Articles 52 and 59 EEC, and secondly, that by prohibiting or by restricting access for nationals of other member-states already employed in Greece and of members
of their families to the posts of director or teacher in frontistiria and in private music and dancing schools, the Hellenic Republic had failed to fulfil its obligations under Article 48 of the Treaty. [3] The application originating third-party proceedings challenges the declaration made by the Court in the judgment at issue to the effect that Greece has failed to fulfil its obligations. Contrary to the Commission's contention, and as is clear from the actual wording of the application, the third parties criticise the judgment in so far as it applies to all frontistiria and private lessons at home, and not just to frontistiria engaged in the teaching of foreign languages. [4] The Commission raises two objections of inadmissibility and applies to the Court, pursuant to Article 19(1) of the Rules of Procedure, to give a decision without considering the substance of the case. It maintains, in the first place, that persons other than the member-states and the Community institutions lack the capacity to institute third-party proceedings against a judgment of the Court given in proceedings for a declaration that a member-state has failed to fulfil its obligations. Secondly, the Commission maintains, the contested judgment does not impair the rights of the third parties concerned. [5] In support of its first objection of inadmissibility, the Commission contends that the involvement of natural or legal persons other than the member-states and the Community institutions is excluded in proceedings for a declaration that a member-state has failed to fulfil its obligations. Those persons cannot compel the Commission to institute such proceedings. Furthermore, Article 37 of the Protocol does not confer on such persons the right to apply for leave to intervene in proceedings of that kind. As it is impossible for them to intervene, it follows that they cannot institute third-party proceedings. [6] The third parties concerned claim that the Court should reject that objection of inadmissibility on the ground, in particular, that the Commission's argument confuses the procedure for leave to intervene with third-party proceedings. Only third-party proceedings ensure that judicial protection is afforded to third parties whose rights have been impaired, regardless of the nature of the dispute. [7] According to Article 91(3) of the Rules of Procedure, where an application is submitted under paragraph (1) of that Article, the remainder of the proceedings are to be oral unless the Court decides otherwise. In these proceedings, the Court considers that it has sufficient information on the case. It is therefore appropriate to dispense with oral proceedings and to give a decision, by way of an order, on the admissibility of the application. *945 [8] According to Article 39 of the Protocol, 'Member-States, institutions of the Community and any other natural or legal persons may, in cases and under conditions to be determined by the rules of procedure, institute third-party proceedings to contest a judgment rendered without their being heard, where the judgment is prejudicial to their rights.' [9] Article 97 of the Rules of Procedure, adopted pursuant to the aforesaid provision, specifies that an applicant originating third-party proceedings must state how the contested judgment is prejudicial to his rights and indicate the reasons for which he was unable to take part in the case. [10] Article 37 of the Protocol provides that 'Member-States and institutions of the
Community may intervene in cases before the court. The same right shall be open to any other person establishing an interest in the result of any case submitted to the Court, save in cases between member-states, between institutions of the Community or between member-states and institutions of the Community.' [11] It follows from that provision that natural or legal persons other than the member-states and the Community institutions lack the capacity to intervene in proceedings instituted under Articles 169 and 170 of the Treaty in which a member-state or the Commission applies to the Court for a declaration that a member-state has failed to fulfil its obligations under Community law. [12] The same provision, in so far as it does not allow such persons to take part in cases of that kind, consequently excludes them from the scope of Article 39. They do not fulfil the condition laid down by that Article which restricts third-party proceedings solely to persons who could, as Article 97 of the Rules of Procedure specifies, have taken part in the case since they are prevented by Article 37 of the Protocol from intervening in proceedings for a declaration that a member- State has failed to fulfil its obligations. [13] That interpretation of the combined provisions of Articles 37 and 39 of the Protocol is also supported by the purpose of third-party proceedings and by their role in contentious proceedings. [14] Third-party proceedings are designed to enable persons who should or could have taken part in a case to gain recognition of their rights. [15] Accordingly, as the Court has already pointed out, it is necessary, in the interests of the efficient administration of justice and of the certainty of legal relations, to prevent so far as possible persons having an interest in the result of proceedings pending before the Court from asserting this interest after the Court has delivered its judgment and has thus settled the question in dispute: Joined Cases 9 & 12/60--Third-party proceedings--belgium v. Vloeberghs and High Authority. [FN2] FN2 [1962] E.C.R. 171 *946. [16] That requirement, although laid down by the Court in a judgment given under the ECSC Treaty, loses nothing of its force where the application of the EEC Treaty is concerned. [17] In those circumstances it would be paradoxical if persons who are precluded by Article 37 from intervening in a case were able, by instituting third-party proceedings, to call in question the judgment given in that case. [18] It follows from all the foregoing considerations that natural or legal persons other than the member-states and the Community institutions have no capacity to make an application originating third-party proceedings against a judgment of the Court given in proceedings for a declaration that a member-state has failed to fulfil its obligations. [19] In those circumstances, the present application originating third-party proceedings, submitted by natural persons and a trade association against the Court's judgment of 15 March 1988, is manifestly inadmissible and must
therefore be dismissed, without there being any need to rule on the second objection of inadmissibility raised by the Commission. Costs [20] Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleading. As the applicants have been unsucessful in their submissions, they must be ordered to pay the costs. Order On those grounds, THE COURT hereby orders: 1. The application originating third-party proceedings is dismissed as inadmissible. 2. The third parties shall bear the costs. (c) Sweet & Maxwell Limited [1991] 3 C.M.L.R. 942 END OF DOCUMENT