61983C0145
OPINION OF MR ADVOCATE GENERAL MANCINI
delivered on 11 July 1985 (
*1
)
Mr President,
Members of the Court,
1.
In its judgment of 13 February 1979 in Case 85/76 (Hoffmann-La Roche v Commission of the European Communities [1979] ECR 461) the Court stated for the first time that ‘by prohibiting the abuse of a dominant position within the market..., Article 86 (of the EEC Treaty) ... covers not only abuse which may directly prejudice consumers but also abuse which indirectly prejudices them by impairing the effective competitive structure as envisaged by Article 3 (f) ... ’. The Court thus recognized that the Swiss multinational's conduct in the market in vitamins for use in the pharmaceutical and food industries could adversely affect both competition and intra-Community trade and that it was therefore necessary to put an end to and penalize that conduct.
Although I am not in possession of precise information, I am convinced that that judgment contributed greatly to the liberation of the European market in vitamins —, products of fundamental importance for the physical welfare of modern man and in modern economic life — from the monopolistic straitjacket in which it had languished for years, and enabled that market to breathe once again the invigorating air of freedom.
Someone, therefore, had the right idea in suggesting to the Commission, early in 1973, that it should investigate the hidden and almost inaccessible recesses of a commercial empire founded for the most part on unlawful rules and clauses. In a ‘personal and confidential’ letter sent on 25 February to Mr Borschette, the then Commissioner for Competition, that person expressly asked the Commission to take action against Hoffmann-La Roche (hereinafter referred to as ‘Roche’) for infringement of Article 86 of the EEC Treaty. The role and the activity of that undertaking on the world market in vitamins were described in detail and an equally thorough account was provided of the anticompetitive measures which it applied and imposed.
The letter concluded as follows: ‘I request you not to let my name be connected with this matter. However I remain at your entire disposal for further information, as well as documentary evidence about every point which I have raised in this letter. Furthermore, I am prepared to discuss any point with your assistants or yourself at any time, and if necessary I am prepared to fly to Belgium or Rome for this purpose. Additionally, after I leave Roche around July 1973 I would be prepared even to appear before any court to give sworn evidence on my statements. I trust to hear from you soon to know in what direction I can be of further help ...’.
The author of that letter was, therefore, employed by the Swiss company. Today his name is well known: Stanley George Adams, a Maltese national and director of the ‘International Affairs’Division of Hoffman-La Roche at Basle.
In fact Mr Adams's identity as the Commission's informant in the vitamins case was not a secret for long. It was certainly no longer secret after 31 December 1974 when he was arrested at the Swiss-Italian border by the Swiss authorities and, on the basis of a complaint laid by Roche, charged with the criminal offences of disclosure of business information and breach of business confidentiality (under Articles 273 and 162 of the Swiss Penal Code). That was the beginning for the former Roche employee of a long calvary. On 21 March 1975 he was released on bail of SFR 25000 and on 1 July 1976, after a trial in which certain sittings were held in camera, he was sentenced in absentia by the Criminal Court of Basle to one year's imprisonment (suspended) and prohibited from entering Switzerland for a period of five years. He appealed against that judgment to the Court of Appeal and then to the Bundesgericht [Federal Supreme Court], Lausanne. However, the conviction at first instance was upheld and in due course became definitive.
I am well aware that that brief account does not cover all the aspects of the Adams affair. However, I do not think that it is necessary to set down here all the events — frequently painful and sometimes tragic — which followed his first contact by letter with the Commission. By an application (Case 145/83) lodged on 18 July 1983 he asked the Court to find the Commission liable in respect of certain acts and omissions which brought about the disclosure of his identity and to order it to pay damages for the injury which he subsequently suffered. In addition, Adams accuses the Commission of a breach of the duty, which it had assumed voluntarily, to advise his lawyers as to the possibility of laying a complaint against Switzerland for infringement of the European Convention on Human Rights (Articles 6 and 10). I therefore intend to consider only those facts which, according to the applicant, give rise to that liability and only in order to establish whether and to what extent the Commission's conduct must be considered unlawful and constitutes the cause of the injury for which Adams claims damages.
In addition it must be noted that on 31 January and 1 February 1985 a preparatory inquiry was conducted by the Second Chamber of the Court, in the course of which Adams was heard and Dr Portmann, who was his lawyer at the time of the Basle trial, and various Commission officials who had been entrusted with the Roche investigation gave evidence. On that occasion both parties requested the Court to determine in the first place whether there was a basis for liability on the part of the Commission and whether the applicant's action was time-barred, thus leaving any decision as to the extent and quantification of the damage to a later stage in the proceedings. In setting down the facts of the case, I will therefore also take into account the limits which that request has imposed.
I would like to make one final comment. On 29 February 1984 Mr Adams lodged a second application (Case 53/84) intended to establish the Commission's non-contractual liability for having failed to refer to the Joint Committee set up under the Free Trade Agreement between the EEC and the Swiss Confederation in the matter of the measures taken against him by the Swiss authorities. Since that application concerns the same injury for which damages are sought in Case 145/83 I will deal with it in this Opinion and, specifically, in the final paragraph.
2.
Acting upon the letter of 25 February 1973, Mr Schlieder, the Director-General of the Commission's Directorate-General for Competition (hereinafter referred to as ‘DG IV’) invited Stanley Adams to meet certain of his officials in order to discuss the questions which he had raised. At that meeting, which was held in Brussels on 9 April 1973, a relationship of frank cooperation developed between Adams and the Commission officials. Adams handed over certain Roche documents which the officials considered to be of limited interest. Nevertheless he assured them that he could provide other, more convincing documents and this he did on the following day (10 April 1973) after his return to Basle. Among the many papers which he sent were 14 internal administrative circulars which were headed ‘Management Information’. He sent two further batches on 15 April and 21 July 1973 containing many documents concerning Roche's commercial activity, including the photocopy of a letter which the President of Roche, Adolf Jann, had sent to the directors of all the subsidiaries. In addition, by the letter of 21 July Adams informed the Commission that he intended to leave Roche by the end of October 1973.
The Commission maintains that from that moment it heard nothing more from Adams and therefore completely lost trace of him. On the other hand, Adams himself points out that in his first letter of 25 February 1973 he had written: ‘I plan to leave (Roche) ... and start my own meat-industry near Rome, Italy’. Furthermore, in his statement to the Court, he claimed that during his visit to Brussels on 9 April 1973 he informed the officials from DG IV, and in particular Mr Carisi, of his intention to set up home with his family in Latina, a small town not far from Rome, where in fact he proposed to start an industrial pig farming business. According to the applicant, the Commission was therefore aware of his plans and the place in which he intended to put them into effect. He claims, finally, that he had a telephone conversation with Mr Carisi in early November 1973 — and therefore' a few days after his resignation from Roche — in the course of which he gave the Commission official the telephone number of the house of his parents-in-law in Italy, where he was planning to spend some months on holiday before moving to Latina. The existence of such a conversation was not confirmed by the officials questioned at the preparatory inquiry, which, however, Mr Carisi was not able to attend (for further detail see under point 7, infra, last paragraph).
When Adams's last letter reached Brussels, the Commission had already studied the documents which he had sent with the very definite intention of opening an investigation into Roche's activities. For some time — indeed from when Adams had supplied the first proof of his accusations — the officials from DG IV had realized that they were dealing with a thorny and extremely delicate matter. It was therefore decided to proceed with very great care. In particular, as the Court was informed by the Director-General of DG IV, it was decided not to open the investigation into the Roche subsidiaries until Adams had finally left Roche.
After his resignation, however, it was felt that they would be able to act with less circumspection. Indeed, the officials charged with the investigation were convinced that once the employment relationship between Roche and its employee was terminated it would be less important to protect Adams's identity, in particular in the light of his statement that he would be prepared to confirm his accusations ‘before any court’. In other words they were convinced that, if in order to put an end to Roche's conduct it were necessary to establish the substance of the accusations levelled against it before a court, the Commission would be able to rely on Adams's testimony as the former director of a commercial division of the company.
On the basis of those considerations the Commission waited until 22 October 1974, almost a year after Adams's departure, to set in motion its investigation (prior to that only a ‘peripheral’ inquiry had been undertaken in relation to Roche's habitual customers and that had yielded very meagre results). On that autumn day, therefore, three officials from DG IV visited Roche's offices in Paris. They hoped to obtain officially from the director of that subsidiary the documents which, unknown to Roche, the Commission had had in its possession for some time and on which it would then have based a decision finding an infringement by that company of Article 86 of the Treaty. However, all their efforts were in vain. They even read the most damaging passages from the ‘Management Information’ memoranda to the director. To no avail, however, as he claimed to have no knowledge of them. The only remaining course of action was to show him the documents in order to obtain from him an acknowledgement of their authenticity. But such a decision was without precedent and involved too great a risk to be taken on the spur of the moment.
When they returned empty-handed — according to the minutes of the evidence of another DG IV official, Mr Rihoux, — the question arose as to whether the investigation should be closed notwithstanding the overwhelming evidence which was in their possession or whether to see it through to its conclusion. It was decided in the first place to evaluate the interests at stake and to weigh up the factors which militated for and against continuing the inquiry. On the one hand there was the general interest of the Community which requires the Commission to ensure that the Treaty is applied and in particular the principles laid down in Articles 85 and 86. On the other hand the informant might still have an interest in keeping his identity secret, although the Commission was no longer bound thereby. The method by which the documents had reached the Berlaymont and the clues to the informant's identity which appeared in them militated against showing them. However, — as Mr Rihoux further stated — the fact remained that Adams had never given any instructions, even in the vaguest terms, as to how the Commission should use his information and he had not requested to be kept informed of the manner in which it did so. Finally, as I have already stated, the officials were convinced that once he had left Basle, Adams ‘had no particular reason to hide his identity’ (see the minutes of the evidence given by Mr Pappalardo, who was also charged with the investigation). Nevertheless, when the decision to show the documents was taken, the inspectors from DG IV took care to choose those which, in addition to providing evidence for the decision against Roche, were the most anonymous, or rather the most neutral, such as circulars, copies of which are distributed to various subsidiaries. Moreover, steps were taken to remove from the documents in question any clues which would make it possible to trace them back to a specific source.
On 29 October 1974, after those precautions had been taken and the strategy to be followed finalized, Community officials visited simultaneously the directors of the Roche subsidiaries in Paris and in Brussels, still hoping to persuade them to produce the incriminating documents from their archives. However, since the directors continued to be evasive or even obstructive, the officials from DG IV decided to produce the 14 internal administrative memoranda and the letter from Adolf Jann. Thus confronted with the evidence, the directors of the subsidiaries, who were allowed to photocopy the documents, finally confirmed the existence and authenticity of those documents.
A few weeks later, on 18 December 1974 to be precise, Dr Alder, a Swiss lawyer, laid on behalf of Roche a complaint with the Swiss police authorities for offences against Articles 273 and 162 of the Swiss Penal Code. The complaint was laid formally against a person or persons unknown. After explaining the circumstances surrounding the visits of the Commission officials to the Paris and Brussels subsidiaries and the contents of the documents photocopied by the directors of those subsidiaries, Dr Alder maintained that ‘Hoffmann-La Roche does not know how the Commission of the European Communities came into possession of the restricted documents ... The discussion between the undersigned and Messrs Carisi, Pappalardo and Rihoux on 8 November 1974 in Brussels suggests that the Commission officials ... did not obtain the documents in question on their own initiative and that ... they are aware of the identity of the person who provided them. It was not, however, possible to establish when they had received them’.
In its complaint, therefore, Roche stated that, on the basis of the evidence in its possession and notwithstanding the inquiries undertaken within the company, it was not in a position to establish the identity of the informant. However, its lawyer brought to the notice of the investigators a matter of certainty and a suspicion. The certainty concerned the origin of the documents, copies of which the Commission had obtained, all of which had undoubtedly been drafted in the offices of the company's head office at Basle. The suspicion centred upon the name of the presumed culprit: Stanley Adams. In the complaint Dr Alder justified that conjecture by explaining that for several years Adams's conduct had provoked criticism from his superiors, to' such an extent that in the summer of 1973 the senior management of the company had suggested that he should resign. The fact that he had left Roche on terms which were not exactly cordial, and certain deductions that could be drawn from the original documents and the Commission's copies ‘justified’ — concluded Alder — ‘the suspicion that Mr Adams was the guilty party’.
On 31 December 1974 the applicant was arrested. He was released on bail on 21 March 1975 and resumed contact with the Commission, after a lapse of almost one and a half years. In early April he met in Brussels the officials who had conducted the investigation of Roche. The parties agree that the atmosphere of the meeting was friendly. The officials expressed their support and promised Adams that the Commission would pay all the legal costs including the amount of bail. According to the applicant, they undertook in addition to provide legal advice to Dr Portmann, then Adams's lawyer, for the preparation of his client's defence. The Commission confirms that it did indeed pay Adams's costs and that it helped him in various ways, even after the legal proceedings against him had terminated, but denies that it ever assumed any obligation to work with his lawyers.
In the course of that meeting, more recent events were also discussed. The officials wished to find out from Adams the details of the circumstances in which his arrest had taken place and, for their part, related all that had happened in Brussels after his last visit. In particular, they told him about the investigation which they had undertaken at the premises of the Roche subsidiaries. In that respect, moreover, Mr Pappalardo recalls having told the applicant that on that occasion the directors of the Paris and Brussels subsidiaries had taken copies of certain of the documents which he had supplied. He maintains that he mentioned this as an hypothesis capable of explaining what was for them still inexplicable, namely Adams's identification and arrest. Pappalardo states further, however, that Adams did not seem struck by those revelations and expressed no criticism of the Commission's actions.
The applicant's recollection of that part of the conversation is different. He claims that he never asked the officials present how, in their view, the Swiss authorities had come into possession of the incriminating documents. On that point, however, it is helpful to recall that — as is clear from the record of Adams's interrogation during his arrest — the Swiss investigators showed him certain documents and stated that they had been handed over by Commission officials to the directors of the Belgian and French subsidiaries. The applicant does not deny that, but states that he did not attach any importance to it because he considered that it was a device used by the Swiss police to extract a confession from him. Nevertheless, it is also clear from the record of the interrogation that Adams virtually admitted having passed the Commission the ‘Management Information’ memoranda: he admitted that it was ‘certainly within the bounds of possibility’.
On 9 June 1976 the Commission adopted a decision formally declaring that Hoffmann-La Roche had abused its dominant position in the Community market in vitamins. Thus ended the first ‘round’ of the affair which two and a half years later reached its conclusion in the judgment to which I referred at the outset.
3.
Other events of minor importance for the purposes of these proceedings took place after Adams's first visit to Berlaymont. I do not propose to cite them here in any precise order. In his application and his reply, for example, the applicant refers to various telephone conversations and subsequent meetings with Commission officials. The telephone conversations took place in the period preceding and immediately following his resignation from Roche, whilst the meetings occurred after he was released from the Swiss prisons. He mentions in addition various episodes which occurred at the time of his arrest, in the course of his interrogation and during his detention. In addition the role played during that period by the Commission and its interventions in favour of Adams are described. Finally, the applicant's account contains a section dedicated to the Italian chapter of his story. His experiences in Italy — it may be recalled — were not much more fortunate than in Switzerland, since his ambitious projects collapsed almost before they were off the ground, essentially for lack of funds, and he was forced to move to the United Kingdom in order to escape the civil and penal consequences of the failure of his business.
The Commission for its part denies the accuracy of certain of Adams's deductions and corrects the version which he gives of certain events. In particular, the Commission denies the applicant's claim that, during a telephone conversation at the beginning of 1975 between Dr Alder and Mr Schlieder, the latter expressly confirmed that Stanley Adams had been the Commission's informant. I am bound to say that the Court has no definite information concerning that event, which in any case occurred after Adams had already confessed to the Swiss police that he had supplied the Commission with information, and, in particular, concerning the content of the conversation between Alder and Schlieder. Nor, it is clear, can the Court consider itself bound by what is stated in that respect in the judgment of the Basle court. Indeed, the episode is far too confused to contribute anything to the already difficult determination on the question of liability which the Court is asked to make.
Quite different, on the other hand, is the assistance — comparable, I would say, to that provided by the matters set out under point 2 — to be derived for the purposes of the Court's task from the meeting held in Brussels on 8 November 1974, a few days after the visit to the Roche subsidiaries, between Dr Alder and the officials from DG IV. I will deal thoroughly with that discussion — during which Alder made threats which the officials regarded as blackmail but as essentially empty — under point 7. Here it is sufficient to say that it was referred to for the first time in these proceedings by the Commission in its defence. There is therefore no mention of it in Adams's application. He does, however, refer to it in the reply as a circumstance which subsequently aggravated the damage suffered by him.
4.
By the application in Case 145/83, Mr Adams asks the Court to declare that the Commission of the European Communities: (a) by disclosing on diverse occasions his identity as the informant in the investigation undertaken by it into the activities of Hoffmann-La Roche, committed a breach of the duty of confidentiality and thus caused his arrest, detention and conviction by the Swiss authorities; and (b) failed to fulfil its obligation to advise his lawyers on the possibility of petitioning the European Commission of Human Rights.
For those acts and omissions he asks the Court to order the Commission to pay damages for the injury suffered by him and the costs of the proceedings. The Commission, on the other hand, contends that the Court should dismiss the application as unfounded. With regard to point (a) in addition it raises an objection of inadmissibility under Article 43 of the Protocol on the Statute of the Court of Justice of the EEC on the ground that the action brought against it is time-barred.
5.
As regards the breach of a duty of confidentiality, the applicant claims that his relationship with the Commission was from the beginning confidential. In his view that is clear both from the wording of his first letter and the tenor of the discussions which he had with officials from DG IV during the meeting of 9 April 1973. If only for that reason the Commission was under a duty not to disclose his name. That duty, however, also had a twofold basis in law: on the one hand, Artile 214 of the EEC Treaty and Article 20 of Regulation No 17 of the Council of 6 February 1962; and on the other, the relevant principles in the laws of the Member States.
That last claim is undoubtedly incorrect. The prohibitions provided for in the Treaty and the regulation in question in fact protect the undertaking investigated and not the informant. Moreover, if the national legal orders are analysed, it is clear that it is not possible to extract from them common rules governing the matter. Indeed, the rules which are laid down therein in the matter of the liability of the administration offer the informant meagre prospects of protection, especially when the administrative action taken concerns precise objectives of public interest. The situation is of course different where the administration assumes vis-à-vis the informant an express commitment to protect his anonymity and to use the information received from him accordingly. Adams fully realizes that and, as we have seen, seeks in the first place to derive the Commission's duty from the existence of such a commitment.
However, those are only side issues. The main dispute centres on a different point. Assuming that such a duty, however founded, exists, is it possible to assign to it a time-limit? Adams claims that it is not. In his view, the duty is continuous and absolute. That is how it was expressed in the letter to Mr Borschette and that is how the Commission itself understood it, as is proved by various aspects of its conduct throughout the entire affair.
The Commission, on the other hand, contends that once Adams left, his employment with Roche, it was no longer bound by any duty of confidentiality. Adams himself placed that limit on the Commission's obligation by writing in his first letter that once he had resigned from Roche he would not hesitate to give evidence before any court. How is it possible, asks the Commission, to give evidence in court without disclosing one's personal particulars? Moreover, when he left Basle, the applicant did not even bother to leave the officials from DG IV his new address. He thus showed that he was completely indifferent to any subsequent developments in the investigation and the possibility that his name might be implicated.
As I have stated under point 2, Adams denies that last contention and states that he communicated to Mr Carisi his address in Italy. However, his main argument is based on different grounds. He claims that the Commission misunderstood him. When he wrote ‘I would be prepared... to give ... evidence,’ he in no way intended to put an end to the Commission's obligation by renouncing the anonymity which he had insisted on. What he meant was that he would be prepared to reveal his identity — but by his own decision and on his own initiative — once the investigation had been terminated and a case had been brought before the Court. In other words only he could decide how and when he would make his public appearance.
The two views are therefore diametrically opposed. In my opinion the second is more convincing, although it is expressed in terms which are perhaps too rigid. However, even that view does not take us very far if it is accepted that until 31 December 1974, in other words until the beginning of the chain of events giving rise to the injury for which Adams claims compensation, the Commission did not openly reveal the name of its informant. I therefore propose to set aside the problem of the duration of the obligation assumed by the Commission and to concentrate on other aspects of it. For that purpose, however, it is necessary to have a better idea of the scope of that obligation and thus in the first place to analyse the document — the letter to Mr Borschette — which gave rise to it.
In the first part of the letter, as we know, the applicant began by expressing the hope that the Commission would ‘take some action’ against Roche and continued by describing in great detail the anticompetitive practices employed by the undertaking. He concluded with the following words :
‘... with the cooperation of the other bulk vitamin producers, (Roche) has eliminated fair competition; and ... where competition could not be eliminated, ... has distorted competition completely’. All that, according to Adams, was ‘clear’, by which he meant sufficient to ensure the successful outcome of the ‘action’ which he suggested the Commission should take. He then added ‘I request you not to let my name be connected with this matter. However, I remain at your ... disposal for further information as well as documentary evidence about every point which I have raised ... Furthermore, I am prepared ... (to meet the inspectors from DG IV) ... at any time. Additionally, after I leave Roche ..., I would be prepared ... ’. In other words the applicant was convinced that the material which he had provided was by itself sufficient to justify action against Roche. However, he could reinforce that material in three ways: (a) by giving further information and/or documents; (b) by discussing the matter with Commission officials; and (c) by giving sworn evidence on the accuracy of the information provided by him. The choice was left to the Commission. Thus he concluded the letter as follows: ‘I trust to hear from you ... to know in what direction I can be of further help ...’.
What are we to make of these statements? There is no doubt that the applicant imposed on Commissioner Borschette a duty of confidentiality with regard to his identity and therefore with regard to the source of the accusations levelled against Roche. It is equally certain, however, that that obligation did not extend to the questions how and when the accusations were to be used. If he wished to place restrictions or conditions on those aspects too, Adams should have given the Commission the necessary instructions. He did not do so. Indeed, he asked the Commission to open the inquiry immediately, although he allowed it to request closer cooperation from him and to choose the form of that cooperation. On the basis of the letter, therefore, the Commission had complete discretion to use what it had learned from the applicant. Provided that it did not disclose his name, it was free to take the action which it considered most effective.
That situation remained unchanged by the subsequent events. When he was invited to Brussels to discuss his accusations, Adams came with certain documents which, he claims, were to be treated as confidential. I note, however, that they were considered to be of slight interest and that in the minutes of the meeting drawn up by Mr Rihoux, no mention is made of their confidentiality. In any case, the fact remains that neither on that occasion nor in his three subsequent letters, did Adams warn the Commission to use the material provided by him with particular care or not to use it at all because of the risk that the contents of the documents might reveal their source. Finally, in his statement to the Court, Adams admitted that he had never made it clear to the inspectors from DG IV that his documents should not be used outside Berlaymont.
Having said that, I can now go a step further. In my view Adams gave no instructions to the Commission because of the trust which he had in the Commission's officials and in their capacity to operate effectively, but at the same time prudently and discreetly. Indeed prudence, care and, if necessary, discretion are among the fundamental requirements for administrative activity. Although it was free to use the documents entrusted to it how and when it considered appropriate, the Commission could not disregard those requirements. The point, then, is this: can it be said that the Commission complied with those requirements? Did the methods chosen by it to obtain from Roche the evidence which it needed and the measures taken to put those methods into practice correspond to the conduct of a reasonable and responsible man in a similar situation, or that of, as the Romans used to say, a bonus paterfamilias.
Adams is convinced that they did not. In his view, to show the ‘Management Information’ memoranda to the directors of the Belgian and French subsidiaries was an act which was, at least, imprudent because it enabled Roche to establish that, in all probability, he must have been the source of the information. The Commission takes an entirely different view. It contends that quite apart from not having given it instructions, Adams failed to warn it that to disclose those particular documents would be to run the risk of revealing their source. Moreover, the officials charged with the investigation chose to show the most ‘anonymous’ documents and endeavoured to make them unrecognizable by removing anything which might facilitate the search for the informant. Clearly no one can say whether their precautions were successful. However, it is significant that in its complaint Roche justified its suspicions of Adams by reference to his bad relationship with his superiors and to circumstances concerning information which was never in the Commission's possession.
Of the views I have summarized I prefer that of the Commission. I would recall that Adams had left to its discretion how and when his information was to be used. It used that information one year after Adams's resignation and only after its attempts to obtain the evidence, first from Roche's clients and then from the archives of the subsidiaries in Brussels and Paris, ended in failure. A decision of that naturethat is to say taken after a reasonable delay, conceived as an extrema ratio and put into effect with the precautions to which I have referred — must be regarded as in conformity with the requirements of prudence and care. In other words the Commission could not have been required to do more than it did to protect Adams's anonymity.
To conclude on that point, I consider that, granted that the conditions regarding damage and the existence of a causal connection were fulfilled, it is impossible to find in the Commission's conduct during the investigation into Roche any wrongful act or omission which might provide a basis for establishing the non-contractual liability of the Commission.
6.
Although it defends itself first and foremost on the substance of the action brought by Adams, the Commission contends that that action founders on Article 43 of the Protocol on the Statute of the Court of Justice of the EEC. That article provides that: ‘Proceedings against the Community in matters arising from noncontractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto’. In its most recent decision on that provision the Court clarified a crucial point in regard to it by establishing that the period of limitation ‘cannot begin before all the requirements governing the obligation to provide compensation for damage are satisfied and in particular before the damage to be made good has materialized’ (judgment of 27 January 1982 in Case 51/81 De Franceschi v Council and Commission [1982] ECR 117).
The Commission's line of argument is simple. It maintains that it is clear from the chronological reconstruction of the events that on 1 July 1976, when judgment was delivered by the Basle court, the circumstances on which Adams founds his action in damages were already in existence. As Adams himself has acknowledged, the acts and omissions relied on by him to establish a breach of the duty of confidentiality occurred before that date. The same is true of the injury arising therefrom (arrest and detention) in respect of which he is in fact claiming damages. In those circumstances the period of limitation was greatly exceeded. Adams's application was in fact received at the Court Registry only on 18 July 1983, in other words well over the five years provided for in Article 43.
Adams firmly rejects that objection. However, his arguments amount to claiming that he became aware of the wrongful conduct on which the Commission's liability is based in August 1980. It was only then that his new lawyer obtained from the Basle court all the documents in the proceedings and, in reading them, discovered that the Commission officials had shown to the directors of the Roche subsidiaries certain of the documents received from Adams. Until then, the applicant claims, he was unaware of that fact. He had never seen the record of his interrogation or the papers relating to his trial and, even if he had seen them, he would not have understood them since they were in German, a language which he did not understand.
What can be said of that view? It is clear that in calculating the period laid down by Article 43 ignorance is to be taken into account. However, that ignorance must not prove to have been caused by the party who relies on it. In any case he is required to show that he has done everything possible to discover the facts which are at the origin of the injury suffered. As I have explained at length under point 2, Adams himself acknowledges that he was informed by the Swiss investigators during his interrogation that the documents had been shown to the directors of the subsidiaries. It is true that the applicant has stated that at the time he did not take the information seriously. However, in pursuing that line of argument he arrives at an absurd result. He makes the exercise of the right of action under Article 215 conditional not on the actual existence of certain facts — thus the wrong which caused the injury — but on the opinion that the person injured holds as to whether they may be attributed to a certain party.
In any event I am convinced that Adams learned from his new lawyer no more than what he had known for some time. I note that in the complaint laid by Roche it is expressly stated that ‘the photocopies of the Roche documents in the possession of the European Commission’ were made by the staff of the French and Belgian subsidiaries ‘with the agreement of the officials ... and (immediately) sent... to Basle’. It is clear that that passage — which is more important than any other because it brings out the point that the Community inspectors handed over the documents voluntarily — was made known to the applicant during his interrogation, on 23 January 1975. Nor can he in that respect rely on his ignorance of German. As is clear from the official record of his interrogation, the complaint was translated by the interpreter as the police officer was questioning the accused. The record itself was signed by Adams only after he had heard the translation.
In conclusion, therefore, Adams was aware already in early 1975 of the details of the facts which he adduces in support of the first of the claims in his application. The objection raised by the Commission and founded on the expiry of the limitation period is therefore well founded.
7.
However, not all the matters which have been evoked in these proceedings and which are capable of establishing the noncontractual liability of the Commission were known to the applicant when the Basle judgment was delivered. In particular, as I have mentioned under point 3, he claims to have learned of the existence of the discussion on 8 November 1974 between Dr Alder and the Commission officials only from the defence which the Commission submitted in these proceedings. That assertion may not be entirely accurate. In the complaint laid by Roche, Alder referred to that meeting stating that he had arranged it in order to discover how the Commission had come into possession of the ‘Management Information’ memoranda and the letter from Jann. He added that the officials did not clarify that matter for him and that when he asked a further question, intended to establish whether or not the informant was an employee of the company, the officials reserved the right to reply at a later date. However, as Alder stated in conclusion, on 6 December 1974 Mr Pappalardo informed him by telephone that the Commission did not intend to reply even to the second question and would no longer be prepared to discuss the origin of the documents.
Since the complaint was made known to Adams during his interrogation, it is conceivable that he was aware of that episode. However, in the complaint Dr Alder related only one, and not the most significant, part of the discussion which he had with the officials. Let us look at the Commission's defence. It is there stated that Dr Alder conveyed Roche's intention to prosecute the informant under a provision of the Swiss Penal Code which punishes the disclosure of confidential business information. In addition he mentioned the possibility of calling the officials as witnesses so that the public might be informed of the irresponsible manner in which DG IV conducted its inquiries. Finally, he promised that if the Commission revealed the name of the informant Roche would refrain from initiating criminal proceedings against him and supply the inspectors with all the documents which they still needed. In the person of Mr Pappalardo the Commission rejected those proposals.
That, then, is the complete version of the discussion. Adams reproaches the Commission with not having informed him of it in time and, in particular, with not having warned him of the serious risks which he would run if he re-entered Switzerland. Thus the Commission had ‘fallen short of exercising the standard of care’ which is required for administrative action and that failure had ‘aggravated’ the damage sustained by him as a result of the ‘breach of professional confidentiality’.
I would point out that, in advancing the argument which I have just summarized, the applicant in fact raised a fresh issue, even if it too is designed to establish the Commission's liability. Was he entitled to do so? As is well known, under Article 42 (2) a fresh issue may be raised in the course of proceedings only if it is based on matters of law or of fact which come to light for the first time in the course of the written procedure. On the other hand the Court has consistently held that ‘to be able to justify the raising of a fresh issue during the proceedings the fact must not have existed or must not have been known to the applicant when the action was commenced’ (see, most recently, the judgment of 1 April 1982 in Case 11/81 Dürbeck v Commission, [1982] ECR 1251). In this case there is no doubt that that requirement is satisfied. As we have seen, Alder's threats and proposals were known only to him and the Commission at the time when Adams brought the action. Adams did not know and could not have known anything of them.
The Commission defends itself against that new charge by claiming in the first place that it did not believe that it was possible under Swiss law to bring criminal proceedings against a person for having supplied information used to put an end to unlawful conduct. The threat to take such action was therefore interpreted by the officials as a bluff attempted by Dr Alder to extract from them the informant's name. In addition, Adams had long since left Switzerland and had not suggested that he wished to return there. On the other hand, since he had not left his address, it would have been impossible to warn him. Finally, in the course of the oral procedure, the Commission contended that in that respect too the applicant's action was time-barred. More than five years had elapsed since the day of the discussion between Alder and the officials and the lodging of the application.
I must say at once that if the observations I have just made regarding the moment at which Adams knew of the discussion (or at least of its most important part) are correct, that last contention cannot be upheld. However, the Commission's other arguments must also be rejected.
Let us consider why. To protect the informant by preserving his anonymity is not an end in itself but serves in particular to prevent reprisals from the party damaged by his information. As has been explained at length under point 6, the duty of confidentiality incumbent on the Commission did not cease upon the Community inspectors' visit to the subsidiaries in Paris and Brussels. The Commission therefore was under a duty to ensure that that visit did not produce results which were different from those intended by it and, in particular, that it did not have unfavourable consequences for Adams. However, such consequences — reprisals in the form of criminal proceedings with the possibility of arrest and conviction — were indeed threatened by Dr Alder in the course of a meeting which was itself one of the results of that visit. The inference which may be drawn is clear. The Commission should have taken all the necessary measures, in accordance with the normal standard of care, to prevent such threats from becoming.a reality.
Instead the Commission remained inactive and that inactivity cannot be justified. Even if Dr Alder's attitude may have suggested that he was ‘bluffing’, the stakes were such that it should have ‘seen’ the cards in his hand to find out whether they really were weak. It should not have been too difficult for the lawyers of the Directorate-General for Competition to verify the existence of provisions contained in a code which is certainly to be found in the Commission's library and to determine the exact scope of those provisions simply by researching the case-law on the subject. I would add that the content of those provisions is not very different from that of various provisions which are still in force in the legal orders of certain Member States (for example Article 623 of the Italian Penal Code). If they had thought of all that and if they had taken action accordingly, those lawyers would have reached the conclusion that Alder had indeed tried to intimidate them but that he was far from bluffing; in fact he held some very strong cards.
There remains the argument concerning the impossibility of tracing Adams. Clearly I do not deny that after leaving his employment, the applicant displayed no interest in the inquiry and provided only occasional and notably vague indications as to his Italian schemes. He maintains, however, that in November 1973 he telephoned Mr Carisi and gave him his address, precisely in order to enable the Commission to remain in contact with him. It is entirely probable that that is what happened. As we know, Mr Carisi did not appear at the preparatory inquiry. Other officials, and in particular Mr Schlieder, nevertheless recall a telephone call from Adams. They can say nothing of what was said, but in view of when it was made (in the period immediately following his departure from Roche) and the place from which it came (certainly Italy), it is difficult to see what purpose it served except to communicate his address to the Commission.
It is in any event indisputable that the Commission did not even try to find Adams although it had plenty of time to do so (it must not be forgotten that Mr Pappalardo replied to Dr Alder's second question almost one month after the discussion! ). In my view that is enough to justify the conclusion that the Commission's conduct did not conform to the ordinary standard of care. It therefore constitutes wrongful conduct giving rise to non-contractual liability.
8.
In the application in Case 145/83, the Commission is charged by Adams with a second omission. He maintains that it did not inform him of the possibility of relying in his defence on the European Convention of Human Rights and thereby committed a breach of the obligation which it had assumed voluntarily to assist and advise his lawyers.
I would point out that the Commission denies having undertaken such a commitment and that the applicant has failed to adduce any evidence capable of establishing the contrary. It is true that in giving his evidence to the Court, Dr Portmann stated that he could have referred to the officials from DG IV at any time to obtain information which would be helpful to the conduct of his client's case. However, there is nothing to suggest that those contacts, which were moreover only occasional, took place within the framework of a consultative relationship.
That claim is therefore unfounded.
9.
By an application lodged at the Court Registry on 29 February 1984 in Case 53/84 the applicant asks the Court: (a) to order the Commission of the European Communities to pay damages for the injury suffered by him following its acts and omissions which led to his arrest and his conviction by the Swiss authorities; (b) to declare, that the Commission should have reported to the Joint Committee set up under the Free Trade Agreement concluded between the EEC and the Swiss Confederation (1972) the measures which were taken against him by the Swiss authorities and which were contrary to the rules of that agreement; and (c) to declare that the Commission should give notice to Switzerland of its intention to withdraw from the Free Trade Agreement if it is not successful, within a reasonable time, in convincing Switzerland to interpret correctly and respect international law as contained therein.
The Commission raises a preliminary objection of lis pendens. It maintains that since the new application is based on the facts set out in the application in Case 145/83 and in substance duplicates the claims in that application, it conflicts with the principle ne bis in idem and must therefore be considered inadmissible. In any event since the injury of which Adams complains is the direct or indirect consequence óf his criminal trial, the acts and omissions on which it is sought to base the Commission's liability necessarily occurred before the judgment in question was delivered (1 July 1976). The action is therefore time-barred under Article 43 of the Protocol of the Court of Justice of the EEC. Finally, in his application the applicant does not make clear: (a) what rule of law the Commission is supposed to have infringed; (b) in what way its conduct was unlawful; and (c) how such conduct caused him injury. In other words in addition to being unfounded, the application does not even satisfy the requirements laid down in Article 215 of the EEC Treaty.
For his part Adams merely replies that the losses in respect of which the two actions were brought may be identical but — and that is what counts — the submissions raised in the two cases are different. That view is of questionable merit. To go into it thoroughly, or to deal with the question whether the requirements laid down by Article 215 are met is, however, pointless because there is no doubt that at least in its second argument the Commission is right. Since the damage complained of in the action in question does not differ from that in respect of which the other action was brought, the limitation period, in its case too, begins to run from the date of the Basle judgment (see above under point 6). It is, moreover, plainly of no account that the circumstance which gave rise to the damage in this case was the failure to report Adams's misfortunes to the EEC-Swiss Joint Committee.
10.
On the basis of the facts which it has been possible to establish in the course of these proceedings and in the light of the foregoing considerations I propose that the Court should:
(a)
Declare the action brought by Mr Stanley Adams on 18 July 1983 in Case 145/83 admissible and, allowing his application in part, declare that the Commission of the European Communities has incurred non-contractual liability by failing to take measures designed to warn the applicant of the risk that he would run if he returned to Switzerland and by thus committing a breach of the duty of normal care to which its administrative action is subject;
(b)
Reserve the question of the extent of the damage and the amount of compensation to a later stage in the proceedings;
(c)
For the rest, dismiss the application in Case 145/83;
(d)
Make an order as to costs in that case after adjudicating on the extent of the damage;
(e)
Declare the application lodged by Mr Adams on 29 February 1984 in Case 53/84 inadmissible and, pursuant to Article 69 (2) of the Rules of Procedure, order the applicant to pay the costs.
(
*1
)	Translated from the Italian.