Court of Justice of the European Communities (including Court of First Instance Decisions)

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1 . PROCEDURE - THIRD PARTY PROCEEDINGS - CONDITIONS OF ADMISSIBILITY - NON-PARTICIPATION OF THIRD PARTY IN ORIGINAL CASE - RULES OF PROCEDURE, ARTICLE 97 ( 1 ) ( C ) - SCOPE OF THIS PROVISION
( PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE ANNEXED TO THE ECSC TREATY, ARTICLE 36 )
2 . PROCEDURE - THIRD PARTY PROCEEDINGS - CONDITIONS OF ADMISSIBILITY - PREJUDICE TO RIGHTS OF THIRD PARTY - RULES OF PROCEDURE, ARTICLE 97 ( 1 ) ( B ) - SCOPE OF THIS PROVISION
3 . PROCEDURE - INTERVENTION - CONDITIONS OF ADMISSIBILITY - DETERMINATION OF INTEREST JUSTIFYING INTERVENTION
( PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE ANNEXED TO THE ECSC TREATY, ARTICLE 34; RULES OF PROCEDURE, ARTICLE 93 )
4 . PROCEDURE - NATIONAL REGULATIONS - LEGAL EFFECTS OF THESE REGULATIONS ON THE COMMON MARKET - APPRAISAL BY THE COURT CONTAINED IN THE GROUNDS OF A JUDGMENT - ABSENCE OF ANY INJURY TO THE SOVEREIGNTY OF A STATE .
1 . CF . PARAGRAPH N . 1 OF THE SUMMARY OF THE JUDGMENT IN JOINED CASES 42 AND 49/59 - THIRD PARTY PROCEEDINGS .

ARTICLE 97 OF THE RULES OF PROCEDURE IS NOT INCOMPATIBLE WITH THE PROVISIONS OF ARTICLE 36 OF THE PROTOCOL ON THE STATUTE OF THE COURT . BY STIPULATING THAT THE THIRD PARTY MUST INDICATE IN HIS APPLICATION THE REASONS WHY HE 'WAS UNABLE TO TAKE PART IN THE ORIGINAL CASE', ARTICLE 97 ( 1 ) ( C ) IMPLIES THAT ANY PARTY WHO COULD HAVE BEEN OR WHO COULD HAVE TAKEN PART IN THE ORIGINAL CASE IS UNABLE TO INSTITUTE THIRD PARTY PROCEEDINGS . THIS PROVISION THEREFORE MAKES THIS PROCEDURE AVAILABLE IN THE FIRST PLACE TO A THIRD PARTY WHO, THOUGH CALLED UPON TO TAKE PART IN THE ORIGINAL CASE, WAS UNABLE TO DO SO FOR GOOD AND SUFFICIENT REASONS, AND SECONDLY TO ANY PARTY WHO WAS NOT IN A POSITION TO INTERVENE IN THE ORIGINAL CASE UNDER ARTICLE 34 OF THE PROTOCOL ON THE STATUTE OF THE COURT AND ARTICLE 93 OF THE RULES OF PROCEDURE .
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2 . ARTICLE 97 ( 1 ) ( B ) OF THE RULES OF PROCEDURE PROVIDES THAT THE APPLICATION ORIGINATING THIRD PARTY PROCEEDINGS SHALL STATE HOW THE CONTESTED JUDGMENT IS PREJUDICIAL TO THE RIGHTS OF THE THIRD PARTY . THIS REQUIREMENT IMPLIES THAT ONLY PERSONS WHOSE RIGHTS HAVE BEEN PREJUDICED BY THE CONTESTED JUDGMENT ARE ENTITLED TO BRING THIRD PARTY PROCEEDINGS .
3 . AN INTEREST IN INTERVENING IN PROCEEDINGS PENDING BEFORE THE COURT IS TO BE JUSTIFIED AS MUCH BY REFERENCE TO THE NATURE OF THE PROCEEDINGS IN WHICH THE INTERVENER ASKS TO BE ALLOWED TO TAKE PART AS BY REFERENCE TO THE CONCLUSIONS OF ONE OF THE PARTIES WHICH THE INTERVENER MUST SUPPORT OR REJECT .
4 . A JUDGMENT OF THE COURT WHICH DOES NO MORE THAN STATE IN ITS GROUNDS THE LEGAL EFFECTS OF NATIONAL REGULATIONS DOES NOT ADVERSELY AFFECT THE SOVEREIGNTY OF THE STATE WHICH LAWFULLY ISSUED THOSE REGULATIONS .

IN JOINED CASES 9 AND 12/60 - THIRD PARTY PROCEEDINGS
GOVERNMENT OF THE KINGDOM OF BELGIUM, REPRESENTED BY H . ADRIAENS, LEGAL ADVISER TO THE MINISTER OF ECONOMIC AFFAIRS AND ENERGY, AUDITEUR TO THE BELGIAN COUNCIL OF STATE AND PROFESSOR AT THE UNIVERSITY OF GHENT, ACTING AS AGENT, ASSISTED BY A . HOUTEKIER, ADVOCATE OF THE MALINES BAR, WITH AN ADDRESS FOR SERVICE AT THE BELGIAN EMBASSY IN LUXEMBOURG, THIRD PARTY,
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SOCIETE COMMERCIALE ANTOINE VLOEBERGHS, HAVING ITS REGISTERED OFFICE AT ANTWERP, REPRESENTED BY ITS PRESIDENT AND MANAGING DIRECTOR, A . VLOEBERGHS, ASSISTED BY J . MERTENS DE WILMARS, ADVOCATE OF THE ANTWERP BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF E . ARENDT, 27 AVENUE GUILLAUME,
AND
HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER G . OLIVIER, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES AT 2 PLACE DE METZ, DEFENDANTS,

APPLICATION FOR THE VARIATION OF THE JUDGMENT DELIVERED BY THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES ON 14 JULY 1961 IN JOINED CASES 9 AND 12/60;

P . 180
ADMISSIBILITY
1 . THE PRESENT APPLICATION WAS BROUGHT UNDER ARTICLE 36 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE ANNEXED TO THE ECSC TREATY AND ARTICLE 97 ( 1 ) OF THE RULES OF PROCEDURE .
ACCORDING TO THE THIRD PARTY THE ABOVE-MENTIONED ARTICLE 36 APPEARS TO ALLOW THIRD PARTY PROCEEDINGS IF THE PARTY CONCERNED WAS NOT 'HEARD' (' APPELE ') IN THE ORIGINAL CASE . ON THE OTHER HAND THE DEFENDANT HIGH AUTHORITY OBJECTS THAT THE APPLICATION IS INADMISSIBLE ON THE GROUND THAT THE THIRD PARTY COULD HAVE INTERVENED IN THE ORIGINAL CASE . THESE ARGUMENTS RAISE THE QUESTION OF THE INTERPRETATION OF ARTICLE 36 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE ANNEXED TO THE ECSC TREATY AND ARTICLE 97 ( 1 ) ( C ) OF THE RULES OF PROCEDURE .
UNDER ARTICLE 36 OF THE PROTOCOL THIRD PARTY PROCEEDINGS ARE ONLY ADMISSIBLE 'IN CASES AND UNDER CONDITIONS TO BE DETERMINED BY THE RULES OF PROCEDURE '. IN COMPLIANCE WITH PARAGRAPH ( 1 ) ( C ) OF ARTICLE 97 OF THE RULES OF PROCEDURE THE THIRD PARTY MUST, IN THE APPLICATION, INDICATE THE REASONS WHY HE 'WAS UNABLE TO TAKE PART IN THE ORIGINAL CASE '. THIS REQUIREMENT IMPLIES THAT ANY PERSON WHO WAS HEARD OR COULD HAVE TAKEN PART IN THE ORIGINAL CASE CANNOT BRING THIRD PARTY PROCEEDINGS, AND THAT THEREFORE THE PROVISION IN QUESTION MUST BE INTERPRETED IN THIS WAY .
IT IS HOWEVER NECESSARY TO CONSIDER WHETHER THIS PROVISION, AS INTERPRETED ABOVE, IS NOT INAPPLICABLE, BECAUSE IT WOULD BE INCOMPATIBLE WITH THE PROVISIONS OF ARTICLE 36 OF THE PROTOCOL . IN THE OPINION OF THE COURT THIS IS NOT THE CASE . BY PROVIDING THAT THE RULES OF PROCEDURE ARE TO DETERMINE THE CASES AND CONDITIONS UNDER WHICH THIRD PARTY PROCEEDINGS ARE ADMISSIBLE, THE PROTOCOL GIVES THE AUTHORS OF THE RULES THE TASK OF DETERMINING THE CONDITIONS UNDER WHICH THIRD PARTY PROCEEDINGS ARE ADMISSIBLE . ARTICLE 97 OF THE RULES OF PROCEDURE THUS PUTS INTO EFFECT THE PRINCIPLE LAID DOWN IN ARTICLE 36 OF THE PROTOCOL ON THE STATUTE OF THE COURT .
2 . IT IS NOW NECESSARY TO ANALYSE IN GREATER DETAIL THE CONDITIONS IN WHICH IT MUST BE ADMITTED THAT THE THIRD PARTY WAS 'ABLE TO TAKE PART IN THE ORIGINAL CASE '. 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 . IT IS PRECISELY IN ORDER TO MEET THIS REQUIREMENT THAT ARTICLE 34 OF THE PROTOCOL ON THE STATUTE OF THE COURT ALLOWS ALL THOSE WHO FIND THEIR INTERESTS AT ISSUE IN AN ACTION PENDING BEFORE THE COURT TO PROCEED BY WAY OF VOLUNTARY INTERVENTION, PROVIDED ONLY THAT THEIR CONCLUSIONS HAVE NO PURPOSE OTHER THAN TO SUPPORT OR REJECT THE CONCLUSIONS OF ONE OF THE PARTIES . THEREFORE ARTICLE 97 ( 1 ) ( C ) OF THE RULES OF PROCEDURE MUST BE INTERPRETED AS BEING DESIGNED TO PROVIDE A METHOD OF RECOURSE, ON THE ONE HAND, FOR A THIRD PARTY WHO, HAVING BEEN CALLED UPON (' APPELE ') TO TAKE PART IN THE ORIGINAL CASE, WAS UNABLE TO PARTICIPATE FOR JUSTIFIABLE REASONS AND, ON THE OTHER HAND, FOR ANY PERSON WHO WAS NOT IN A POSITION TO INTERVENE IN THE ORIGINAL CASE IN ACCORDANCE WITH ARTICLE 34 OF THE PROTOCOL ON THE STATUTE OF THE COURT AND ARTICLE 93 OF THE RULES OF PROCEDURE .
P . 182
3 . THE PRINCIPLES MENTIONED ABOVE MUST NOW BE APPLIED TO THE PRESENT CASE .
THE THIRD PARTY ARGUES THAT THE SUBJECT MATTER AND THE CONCLUSIONS IN THE ORIGINAL ACTION IN CASE 9/60, AS PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES OF 25 MAY 1960, DID NOT DISCLOSE ANY INTEREST WHICH IT COULD HAVE ESTABLISHED IN ORDER TO INTERVENE VOLUNTARILY IN THE ORIGINAL CASE .
IT CANNOT BE DENIED THAT, IN VIEW OF THE FACT THAT THE WRITTEN PROCEDURE IS NOT OF A PUBLIC NATURE, IT IS ONLY POSSIBLE TO DETERMINE AN INTEREST ESTABLISHING A RIGHT TO INTERVENE IN THE CASE FROM THE SUBJECT MATTER AND CONCLUSIONS OF THE APPLICATION AS PUBLISHED IN THE OFFICIAL JOURNAL . VOLUNTARY INTERVENTION IN A CASE BEFORE THE COURT IS ONLY ADMISSIBLE UNDER THE SECOND PARAGRAPH OF ARTICLE 34 OF THE PROTOCOL ON THE STATUTE OF THE COURT IF THE INTERVENER SUPPORTS OR REJECTS THE CONCLUSIONS OF ONE OF THE PARTIES . IT IS THEREFORE NECESSARY IN THIS CASE TO ASCERTAIN WHETHER THE SUBJECT MATTER AND CONCLUSIONS IN THE ACTION IN CASE 9/60 AS PUBLISHED IN THE OFFICIAL JOURNAL DISCLOSED AN INTEREST WHICH THE BELGIAN GOVERNMENT HAD IN INTERVENING TO SUPPORT OR REJECT THE CONCLUSIONS OF THE APPLICANT, THE VLOEBERGHS COMPANY .
IT IS CLEAR FROM THE SAID PUBLICATION THAT THE MAIN OBJECT OF THE APPLICATION WAS TO ENSURE THAT THE PRINCIPLE OF THE FREE MOVEMENT OF GOODS WITHIN THE COMMON MARKET IS OBSERVED AND IT WAS NEVER EXPECTED THAT THE CONCEPT OF FREE CIRCULATION, AS APPLIED BY THE BELGIAN GOVERNMENT, WOULD THEN BE DISCUSSED AS PART OF THE ORAL PROCEEDINGS .
ALTHOUGH IT CANNOT BE DENIED THAT IT IS IN THE INTERESTS OF EACH MEMBER STATE, AS A SIGNATORY TO THE TREATY AND RESPONSIBLE FOR ITS APPLICATION, THAT THE PRINCIPLE OF FREE MOVEMENT BE OBSERVED, IT IS NO LESS TRUE THAT THE GENERAL INTEREST IN THE OBSERVANCE OF THE TREATY CANNOT JUSTIFY VOLUNTARY INTERVENTION IN ANY AND EVERY ACTION . IN FACT THE INTEREST IN INTERVENTION IN PROCEEDINGS PENDING BEFORE THE COURT MUST BE JUSTIFIED AS MUCH BY REFERENCE TO THE NATURE OF THE PROCEEDINGS IN WHICH THE INTERVENER ASKS TO BE ALLOWED TO TAKE PART AS BY REFERENCE TO THE CONCLUSIONS OF ONE OF THE PARTIES WHICH THE INTERVENER MUST SUPPORT OR REJECT .
IN THE PRESENT CASE THE ORIGINAL ACTION WAS BROUGHT UNDER ARTICLE 40 OF THE ECSC TREATY . IT WAS THUS AN ACTION FOR COMPENSATION, NOT FOR THE ANNULMENT OF A DECISION OR RECOMMENDATION OF THE HIGH AUTHORITY AS BEING CONTRARY TO THE TREATY, AND THE CONCLUSIONS OF THE APPLICANT IN THE ORIGINAL CASE AS SET FORTH IN THE OFFICIAL JOURNAL SOUGHT ON THE OTHER HAND PAYMENT OF COMPENSATION FOR THE WRONGFUL ACT OR OMISSION OF THE HIGH AUTHORITY . IN THESE CIRCUMSTANCES IT IS UNREASONABLE TO ASSERT THAT THE SUBJECT MATTER OF OR THE CONCLUSIONS IN THE APPLICATION WHICH WAS DETERMINED BY THE CONTESTED JUDGMENT DISCLOSE A DIRECT AND SPECIFIC INTEREST ON THE PART OF THE BELGIAN GOVERNMENT IN INTERVENING VOLUNTARILY IN ORDER TO SUPPORT OR REJECT THE CONCLUSIONS OF THE APPLICANT .
P . 183
THEREFORE THE CONDITIONS OF ADMISSIBILITY LAID DOWN IN ARTICLE 97 ( 1 ) ( C ) OF THE RULES OF PROCEDURE IS FULFILLED IN THE PRESENT CASE .
4 . ( A ) MOREOVER ARTICLE 97 ( 1 ) ( B ) OF THE SAID RULES PROVIDES THAT THE APPLICATION ORIGINATING THIRD PARTY PROCEEDINGS SHALL 'STATE HOW THE JUDGMENT IS PREJUDICIAL TO THE RIGHTS OF THE THIRD PARTY '. THIS REQUIREMENT IMPLIES THAT ONLY PERSONS WHOSE RIGHTS HAVE BEEN PREJUDICED BY THE CONTESTED JUDGMENT ARE ENTITLED TO BRING THIRD PARTY PROCEEDINGS . IT IS THEREFORE NECESSARY TO CONSIDER NOW WHETHER THE PRESENT APPLICATION SATISFIES THIS CONDITION OF ADMISSIBILITY ALSO .
THE THIRD PARTY ARGUES IN THE FIRST PLACE THAT THE CONTESTED JUDGMENT, TO THE EXTENT TO WHICH IT DECIDES CASE 9/60, IS PREJUDICIAL TO ITS RIGHTS IN THAT ITS EFFECT IS TO LIMIT THE EXERCISE OF THE POWER OF THE BELGIAN GOVERNMENT TO MAKE CUSTOMS REGULATIONS, WHEREAS THIS LIMITATION IS INCOMPATIBLE WITH THE PROVISIONS OF ARTICLE 73 OF THE TREATY .
IT ARGUES IN FACT THAT, IN ORDER THAT THE PRINCIPLE OF FREE MOVEMENT OF GOODS MAY BE APPLIED TO GOODS IMPORTED IN FREE CIRCULATION INTO BELGIUM, THE BELGIAN GOVERNMENT MUST, AS A RESULT OF THE CONTESTED JUDGMENT, AMEND ITS LEGISLATION ON THIS SUBJECT BY IMPOSING CHARGES, WHETHER OF THE TYPE USUALLY LEVIED BY CUSTOMS OR NOT, ON ALL IMPORTERS OF GOODS ORIGINATING IN THIRD COUNTRIES, EVEN IF THESE GOODS ARE INTENDED FOR RE-EXPORT .
THE THIRD PARTY ATTRIBUTES THE PREJUDICE IN QUESTION TO THE GROUNDS OF THE CONTESTED JUDGMENT . THE GROUNDS WHICH ARE CRITICIZED DO NOT DETERMINE THE QUESTION OF THE LEGALITY, WITH REFERENCE TO THE TREATY, OF THE BELGIAN REGULATIONS CONCERNING THE ADMISSION TO FREE CIRCULATION OF COAL ORIGINATING IN THIRD COUNTRIES BUT DO NO MORE THAN STATE WHAT ARE THE LEGAL EFFECTS PRODUCED BY THE SAID REGULATIONS, SO FAR AS THE APPLICATION OF THE PRINCIPLE OF THE FREE MOVEMENT OF GOODS IN THE SPECIFIC CASE CONSIDERED BY THE COURT IS CONCERNED .
SUCH A FINDING COULD NOT ADVERSELY EFFECT THE SOVEREIGNTY OF THE STATE WHICH HAD LAWFULLY ISSUED THESE REGULATIONS . THEREFORE THE INJURY TO ITS SOVEREIGNTY ALLEGED BY THE THIRD PARTY, IN CONNEXION WITH ITS POWER TO ISSUE REGULATIONS, DOES NOT IN FACT EXIST .
P . 184
( B ) THE THIRD PARTY ARGUES IN THE SECOND PLACE THAT THE CONTESTED JUDGMENT IS PREJUDICIAL TO ITS RIGHTS BECAUSE IT QUESTIONS THE MOTIVES WHICH GUIDED THE BELGIAN GOVERNMENT IN THE EXERCISE OF ITS POWER TO MAKE REGULATIONS AND IN THE USE WHICH IT MADE OF THIS POWER IN THE PRESENT CASE, AND THEREFORE CASTS ON THE GOVERNMENT SUSPICIONS LIABLE TO CAUSE DAMAGE OF A NON-MATERIAL NATURE TO ITS STANDING IN THE COMMUNITY .
IT IS CLEAR FROM THE STATEMENTS OF THE HIGH AUTHORITY THAT WHEN THE COAL IN DISPUTE WAS IMPORTED IN FREE CIRCULATION INTO BELGIUM IT WAS NOT THE POLICY OF THE BELGIAN GOVERNMENT TO IMPOSE QUANTITATIVE RESTRICTIONS ON COAL ORIGINATING IN THIRD COUNTRIES AND THAT IMPORT AND EXPORT LICENCES WERE ISSUED AUTOMATICALLY FOR SUCH COAL . THE THIRD PARTY DOES NOT DISPUTE THE VALIDITY OF THESE STATEMENTS . IN ADDITION THE THIRD PARTY HAS ITSELF ADMITTED THAT THE COAL IN DISPUTE IMPORTED IN THIS WAY INTO BELGIUM AND INTENDED FOR RE - EXPORT WITHIN A GIVEN PERIOD OF TIME WAS SUBJECT NEITHER TO IMPORT DUTY NOR TO TRANSFERENCE DUTY .
THEREFORE THE COURT, IN DECLARING THAT THE ADMISSION OF THE SAID GOODS TO FREE CIRCULATION IN BELGIUM 'COULD BE EFFECTED WITHOUT DIFFICULTIES OR CHARGES OF ANY KIND', FAR FROM CRITICIZING THE BELGIAN REGULATIONS IN THIS MATTER, MERELY DESCRIBED THE DE FACTO SITUATION .
IN ADDITION AS REGARDS THE FINDING IN THE GROUNDS OF THE CONTESTED JUDGMENT THAT THE CASE WAS CONCERNED WITH 'AN ATTEMPT AT DIRECT IMPORTATION INTO FRANCE HAVING THE MERE SEMBLANCE OF AN IMPORT INTO BELGIUM', IT IS NECESSARY TO NOTE THAT THIS FINDING CERTAINLY DOES NOT REFER TO THE BELGIAN GOVERNMENT . MOREOVER IN THE GROUNDS OF JUDGMENT IN QUESTION THE COURT MERELY FOUND THAT THE VLOEBERGHS COMPANY EFFECTED THE COMMERCIAL TRANSACTION IN DISPUTE BY TAKING ADVANTAGE OF THE CUSTOMS REGULATIONS PASSED BY THE BELGIAN GOVERNMENT . IN SO DOING, THE COURT DID NOT IN ANY WAY MAKE A VALUE JUDGMENT WITH REGARD TO THESE REGULATIONS, THE EFFECT OF WHICH IT EXAMINED, IN THE PARTICULAR CASE, ONLY WITH REFERENCE TO THE PRINCIPLE OF FREE CIRCULATION WITHIN THE MEANING OF THE ECSC TREATY . NOR, FOR THIS REASON, DID THE CONTESTED JUDGMENT, IN DESCRIBING THE COMMERCIAL TRANSACTION IN DISPUTE AS A 'PRACTICE', IMPLY ANY UNFAVOURABLE CRITICISM OF THE CONDUCT OF THE BELGIAN GOVERNMENT . FOR ALL THESE REASONS, AS THE STATEMENTS SUBMITTED BY THE THIRD PARTY HAVE NOT PROVED THE EXISTENCE OF THE PREJUDICE COMPLAINED OF, THIS APPLICATION IS NOT ADMISSIBLE WITHIN THE MEANING OF ARTICLE 97 ( 1 ) ( B ) OF THE RULES OF PROCEDURE .

UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
SINCE THE THIRD PARTY HAS FAILED IN ITS APPLICATION, IT MUST BEAR THE COSTS .

THE COURT
HEREBY :
1 . DISMISSES THE APPLICATION ORIGINATING THIRD PARTY PROCEEDINGS AS BEING INADMISSIBLE;
2 . ORDERS THE GOVERNMENT OF THE KINGDOM OF BELGIUM TO PAY THE COSTS OF THE ACTION .