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LIMITS ON ADMINISTRATIVE COURT'S DISCRETION IN OR-DERING INTERVENTION
Article 42 Paragraph 1 of the Code of Adminis-trative Procedure provides that if the adminis-trative court believes that the abrogation of an administrative decision would harm the rights or legal interests of a third party, it may order such third party to intervene in the litigation as an independent party. Article 45 Paragraph 2 of the Code provides that before making such a ruling, the court must order the litigants or the third party to make written or oral statements. From the wording of said provision, it would appear that it lies within the discretion of the court whether to exercise its power to order interven-tion.
In various recent administrative suits in trade-mark opposition and invalidation cases, the Su-preme Administrative Court has ordered third parties to intervene as independent litigants. In all these cases the Court stated explicitly that where the rights or legal interests of a third party would be harmed by the abrogation of an ad-ministrative decision, the court must respect such third party's right to litigate, and must order the third party to intervene. If substantive rights of a third party were to be created, proven, confirmed, altered or repudiated in the course of litigation initiated by another person without the interven-tion of the third party, this would clearly infringe the third party's constitutionally guaranteed right to litigate, and would also violate the principles of fair adjudication and procedural efficiency. This leaves virtually no room for discretion by the court in applying Article 42 Paragraph 1 of the Code.
Accordingly, there is no room for further inves-tigation and consideration as to whether a third party meets the criteria for intervening in the litigation, or whether there is a need for the third party to intervene. Thus the provisions of Article 45 Paragraph 2 do not apply, and there is no need for the court to order the litigants or the third party to make a statement regarding intervention in the litigation.