Opinion of Mr Advocate General Van Gerven delivered on 28 November 1991. - Weddel & Co. BV v Commission of the European Communities. - Refusal by a Community institution to grant an official permission to give evidence before a national court. - Case C-54/90.



European Court reports 1992 Page I-00871



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. By this application Weddel & Co. BV is requesting the Court to annul a Commission decision notified to it by letter of 12 January 1990 concerning the refusal to permit a Commission official to give evidence in national judicial proceedings.

Facts

2. The facts of the present case are partly known to the Court from Case C-354/87 Weddel & Co. BV v Commission, in which judgment was given on 6 November 1990. Article 1 of Commission Regulation (EEC) No 2539/87 of 24 August 1987 provided that:

"Licence applications can be submitted in accordance with Article 12 of Regulation (EEC) No 2377/80, during the first ten days of September 1987 for a total quantity of 4 617 tonnes of beef and veal originating in and imported from the United States of America or from Canada." (1)

In the context of that award procedure, Weddel & Co. BV, a trading company engaged in the import and export of meat and other food products (hereinafter referred to as "Weddel"), submitted applications on 9 and 10 September 1987 with the Produktschap voor Vee en Vlees, the Netherlands' executive agency entrusted with the issue of import licences (hereinafter referred to as the "Produktschap"), for a licence for the import of 320 000 tonnes of beef in total.

After being informed by the Produktschap of the total quantity in respect of which applications had been lodged in the Netherlands, the Commission informed the Produktschap on 15 September 1987 that a licence application should relate to a total quantity not exceeding the total quantity available (namely 4 617 tonnes). By Regulation (EEC) No 2806/87 of 18 September 1987 it consequently applied a ceiling for licence applications in pursuance of which the quantities applied for were proportionately reduced. (2) As a result of that ceiling the applicant received a licence for only 0.2425% of the available 4 617 tonnes and was therefore able only to import 11.196 tonnes of beef.

The applicant brought an action for the annulment of that Regulation in Case C-354/87, which has already been mentioned above. That application was dismissed by a judgment of 6 November 1990. (3)

3. In November 1989 Weddel, in addition to the application lodged with the Court, brought proceedings for damages against the Produktschap before the Arrondissementsrechtbank (District Court), in the Hague. (4)

Weddel points out that in the context of the abovementioned award procedure the Produktschap (on its own initiative) gave it information pursuant to which Weddel submitted applications for import licences in excess of the available quota of 4 617. The Produktschap must therefore be liable for the damage which Weddel alleges it suffered as a result of the partial rejection of its licence applications. The Produktschap does not contest that it informed Weddel that the applications for import licences could exceed the available quota but points out that it was going on express and repeated communications made to it by the Commission, through the intermediary of one of the Commission' s officials, in reply to its questions concerning the existence of maximum quantities for applications for import licences.

In order accurately to assess the chances of success of proceedings for damages against the Produktschap, Weddel requested the Arrondissementsrechtbank for a provisional hearing of witnesses to be held involving five persons including the Commission official who had communicated the information to the Produktschap. (5) On 11 December 1989 the Arrondissementsrechtbank granted the application, (6) and on 16 January 1990 four of the five witnesses were heard by the Rechter-commissaris. Those witnesses confirmed that in the period prior to the award procedure the Commission official referred to above had expressly and repeatedly without reservations stated in reply to queries by the Produktschap that "more can be applied for than the available quota". (7)

4. On 23 January 1990 the official concerned was summonsed to give evidence as a witness before the Rechter-commissaris as to information given by him to the Produktschap. Article 19 of the Staff Regulations of Officials of the European Communities (hereinafter referred to as the "Staff Regulations") however provides that:

"An official shall not, without permission from the appointing authority, disclose on any grounds whatever, in any legal proceedings information of which he has knowledge by reason of his duties. Permission shall be refused only where the interest of the Communities so require and such refusal would not entail criminal consequences as far as the official is concerned. [...]".

By letters of 15 and 29 November 1989 Weddel requested the Commission to authorize the official in question to appear as a witness in the context of the abovementioned provisional hearing of witnesses. (8) On 11 January 1990 the Commission refused permission for the official to appear as a witness. (9) By letter of 12 January 1990 Weddel was informed thereof. (10)

In the present case Weddel requests the Court to annul that refusal by the Commission. In my Opinion I shall first examine the admissibility of the application for annulment (paragraphs 5 to 7 below), then the applicability of the abovementioned Article 19 of the Staff Regulations (see paragraphs 8 and 9 below) and, finally, the justification for the refusal to allow evidence to be given (see paragraphs 10 to 14 below). I would recall that the request made by the Commission to exclude from the file certain documents or parts thereof was rejected by the Court by order of 15 May 1991.

The admissibility of the application for annulment

5. The Commission submits that Weddel' s application for annulment is inadmissible, firstly since the subject-matter of the dispute is not stated sufficiently clearly (see paragraph 6 below), and secondly since the applicant is not the addressee of the contested decision, and is also not directly and individually concerned by that decision (see paragraph 7 below).

6. Article 38(1)(c) of the Rules of Procedure provide that the application bringing a matter before the Court must state inter alia the subject-matter of the dispute. As has already been mentioned, Weddel seeks the annulment of "the decision of the Commission notified to it by letter of 12 January 1990". The Commission alleges that it is not or not sufficiently clear from the application lodged by Weddel against which decision its application is directed: against the letter dated 12 January from the Director-General for Agriculture to the applicant or against the internal memorandum (annexed thereto) of 11 January 1990 from the Director-General for Personnel and Administration to the official concerned.

I cannot share the Commission' s view. Article 38(1)(c) of the Rules of Procedure is intended to enable the other party and the Court to know sufficiently clearly what the application is directed against. It is evident from the application that the action for annulment is directed against the Commission' s refusal to authorize its official to make a witness statement in the context of the abovementioned provisional hearing of witnesses. The distinction drawn by the Commission between the letter of 12 January 1990 and the memorandum of 11 January 1990 is an artificial one and is not relevant in this case. The applicant was informed of the Commission' s refusal contained in the internal memorandum of 11 January 1990 in a letter of 12 January 1990 in which express reference was made to the abovementioned memorandum. Moreover, it appears from the defence that the subject-matter of the present application for annulment was also entirely clear to the Commission.

7. In accordance with the second paragraph of Article 173 of the EEC Treaty, any natural or legal person may institute proceedings only against a decision addressed to that person or of direct and individual concern to him. As stated, the Commission says that in the present case neither of these two conditions is satisfied.

As the applicant has rightly stated, the wording of Article 19 of the Staff Regulations in no way precludes a request to authorize an official to appear as a witness from being made by a third party having an interest. From the exchange of correspondence mentioned at paragraph 4 between the applicant and the Commission it is evident that the applicant in the present case addressed such a request to the Commission (11) and that the refusal by the Commission, as contained in the letter to Weddel and in the internal memorandum and annex thereto, is a direct reply to that request. Contrary to what the Commission says, that decision is therefore addressed to the applicant so that the applicant can bring an action for annulment against it.

But even if the refusal decision were not addressed to the applicant it must be regarded as being of direct and individual concern to the applicant. The Arrondissementsrechtbank at The Hague granted Weddel' s request to hold a provisional hearing of witnesses including the official in question on 11 December 1989 in order to ascertain whether there were sufficient grounds for any action for damages before the national courts. The Commission' s refusal to grant its official permission to give evidence is thus of direct and individual concern to the applicant. For that refusal is likely to make it more difficult for it to determine whether there are sufficient grounds for bringing any such action.

The applicability of Article 19 of the Staff Regulations

8. Article 19 of the Staff Regulations, quoted above, merely concerns matters of which an official "has knowledge by reason of his duties". Accordingly, as Weddel claims in its application, Article 19 of the Staff Regulations is not applicable in the present case because the official was not to be heard concerning information of which he had knowledge by reason of his duties, but concerning his own communications to the Produktschap. The Commission, on the other hand, takes the view that Article 19 of the Staff Regulations is applicable since that Article must be interpreted as relating to all things done or omitted to be done by an official in his official capacity, including oral and written statements made within the institution or outside it.

In its reply Weddel challenges the validity of the maximalist interpretation of Article 19 of the Staff Regulations advocated by the Commission. The applicant points out that that Article must be interpreted in the light of the official' s duty of secrecy as contained in Article 214 of the EEC Treaty and Article 17 of the Staff Regulations. The applicant thus takes the view that Article 19 of the Staff Regulations merely concerns any factual matters and information of which an official in the performance of his duties or in the context thereof obtains knowledge, in so far as such information has not already been disclosed to the public and is not of a confidential nature. Since the information provided by the official to the Produktschap is not of a confidential nature, such information, according to the applicant, does not fall within the terms of Article 19 of the Staff Regulations and mention may properly be made of such information without authorization.

9. In my view the scope of Article 19 as defined in the first sentence thereof cannot be interpreted as restrictively as the applicant proposes. The scope of Article 19 concerns "information of which [an official] has knowledge by reason of his duties" whereby no distinction is drawn between information covered by the duty of secrecy and information which is not so covered and whereby the phrase "has knowledge", in my view, in fact refers to all things done or omitted to be done, written or spoken, in the context of his duties. (12) It is the case that with regard to information not covered by the duty of secrecy, the appointing authority can scarcely refuse permission to make proper use of such information. It is difficult to imagine how use in judicial proceedings of that information (which an official may in principle divulge) may affect the interests of the Community to such an extent that a refusal of permission to make such use thereof can be justified. I will come on to this question in the following paragraphs.

Is the refusal of permission to give evidence justified?

10. Once it is established that Article 19 is applicable and the official concerned must therefore obtain permission from the appointing authority in order to give evidence, the question arises whether the refusal to grant such permission was justified. Article 19 provides that permission can be refused only where the interests of the Communities so require and such refusal would not entail criminal consequences as far as the official is concerned.

11. In the contested decision the Commission gave as justification for its refusal that:

"[...] since a case based on the same facts is pending before the Court of Justice of the European Communities (Weddel v Commission), the questions on which you are asked to give evidence are there being replied to officially by the Commission, through the intermediary of the authorized department (Legal Service, Agent of the Commission)." (13)

In its application Weddel states that the Commission did not found its refusal on the "interests of the Communities", as required by Article 19 of the Staff Regulations.

In its order of 13 July 1990 in Case C-2/88 Imm. (criminal proceedings against Zwartveld and Others [1990] ECR I-3365), the Court declared that the Community institutions in principle have a duty to cooperate sincerely with the national judicial authorities. (14) It may be inferred therefrom that the "interests of the Communities" which under Article 19 of the Staff Regulations may justify a refusal to give permission to give evidence, can only be serious and vital interests of the Communities. I therefore consider that Weddel is correct to point out in its application that the justification given in the contested decision for the refusal cannot be regarded as sufficient. The ground relied on by the Commission, namely that the Commission' s official reply is being given before the Court in a related case, does not make clear in what manner the refusal might concern the vital interests of the Communities.

The Commission seems to realize this, since in its defence it is no longer relying so much on that ground of justification but puts forward other grounds discussed below in paragraphs 12 and 13. The contested decision was therefore insufficiently reasoned and must be annulled on that ground.

12. In its defence the Commission states that the refusal to give permission was justified in the first place by the fact that the evidence of its official could jeopardize the proper functioning of the agricultural policy. The Commission points out that, if every official giving information to a national authority in the course of the implementation of the Common Agricultural Policy could subsequently be called to account for it in national judicial proceedings, the Commission would be compelled to alter its current practice based on numerous informal contacts. Such informal contacts are nevertheless useful in order to find a solution to the many practical problems which arise in the implementation of the agricultural policy. In the absence thereof the proper functioning of the Common Agricultural Policy might be jeopardized.

It goes without saying that the proper functioning of the Common Agricultural Policy is amongst the vital interests of the Community. However I consider that in the present case the proper functioning of the Common Agricultural Policy is not jeopardized by evidence given by the official in question. First of all, it is incorrect to state that the official is being called to account by the Netherlands courts for information given by him to the Produktschap. He is only to be asked what information he provided. More important still is that in accordance with the Court' s consistent case-law (to which the Commission also refers) information supplied by Commission officials to national authorities concerning the application of the agriculture rules are not officially binding on the Commission, (15) just as, in accordance with the Court' s case-law, the adoption of the incorrect interpretation of a provision of Community law does not in the case of the official concerned constitute a wrongful act, apart from the exceptional instance. (16) National agencies act upon their own responsibility even when they proceed on the basis of information imparted to them by individual Commission officials. I therefore fail to see how evidence given by the official in question as to the information given by him to the Produktschap might compel the Commission to alter current practice regarding cooperation between the Commission and national agencies.

Evidence as to the information given by a Commission official to a national agency could undermine the proper functioning of the Agricultural Policy if the information concerned is of a confidential nature. The information in question in the present case has to do, however, with the manner in which a national agency must apply Community rules to individuals and is of direct concern to individuals. Such information is almost by its nature intended to be communicated to individuals and is therefore difficult to regard as being of a confidential nature.

13. In its defence the Commission also submits that the refusal to grant permission was justified because the evidence of its official does not alter the applicant' s situation, there has never been any direct contact between the applicant and the Commission, and the Commission cannot permit an individual official to be compelled to give evidence involving him in the interpretation of legal provisions. The first two of those grounds certainly do not concern the vital interests of the Communities and thus cannot be relied upon as justification for the refusal of permission. Moreover, it is in the last analysis for the national court, in any proceedings on the merits, to determine whether the evidence of the Commission official can affect the applicant' s situation. With regard to the third ground it must be pointed out that it is not correct, as the Commission states, that the official would be asked to interpret the applicable Community law. As already mentioned above, he will only be asked about what information he gave to the Produktschap.

14. Finally, it must be recalled that in accordance with Article 19 of the Staff Regulations permission to give evidence may be refused only where such refusal would not entail criminal consequences as far as the official is concerned. This second condition supplements the first condition, mentioned above (paragraphs 11 to 13), in the sense that when the Community interest would justify a refusal to give permission, it seems to me that the second condition can provide grounds for granting permission owing to the risk of criminal proceedings against the official concerned. Since I have come to the conclusion that the refusal to grant permission in the present case cannot be justified by a Community interest, there is no need for me to examine this second condition.

Conclusion

15. On the basis of the foregoing considerations I come to the conclusion that the Commission did not give an adequate statement of reasons for the refusal of permission to give evidence, since in the contested decision it invoked no ground relating to the "interests of the Communities", as required by Article 19 of the Staff Regulations of Officials of the European Communities. Moreover, the grounds subsequently advanced by the Commission in its defence do not relate to any such Community interest. Therefore, the decision was based in any event on inadequate reasoning and must be annulled by the Court. Under Article 69(2) of the Rules of Procedure the Commission must be ordered to pay the costs.

(*) Original language: Dutch.

(1) - OJ 1987 L 241, p. 6.

(2) - OJ 1987 L 26, p. 59.

(3) - Judgment of 6 November 1990 in Case C-354/87 Weddel & Co. BV v Commission [1990] ECR I-3847, at paras. 35 and 36. The Court held that neither the principle of equal treatment nor the principle of legal certainty had been breached. The Court considered inter alia that the contested ceiling was not unlawful because it was not a new rule but merely clarified and was a necessary consequence of the pre-existing Community rules.

(4) - See the application to the Arrondissementsrechtbank for the holding of a provisional hearing of witnesses, point 1, annex 3(b) of the application.

(5) - See annex 3(a) of the application with regard to the objective of and the provisions concerning the provisional hearing of witnesses and annex 3(b), that is the application to the Arrondissementsrechtbank for a provisional hearing of witnesses.

(6) - See Annex 3(c) of the application with regard to the decision by the Arrondissementsrechtbank.

(7) - P. 7 of the application and the minutes of 16 January 1990 of the hearing of witnesses, annex 4 of the application, see principally p. 7, evidence of the head of the EEC department of the Produktschap, and also pp. 10-11, the evidence of the head of the Principal Department for Meat and Poultry Products in the Directorate for market organization questions.

(8) - The letter of 15 November 1989 was addressed to an official of the Commission' s Legal Service (Annex 6(b) of the application). The letter of 29 November 1989 was addressed to the Director-General of the Directorate-General for Agriculture at the Commission (annex 6(d)). The requests made therein were premature in the sense that Weddel' s request for a provisional hearing of witnesses to be held were granted only on 11 December 1989 by the Arrondissementsrechtbank. In the letter of 14 December 1989 to the Director-General for Agriculture, the Commission was informed of the fact that the official in question had been summonsed to appear on 23 January 1990.

(9) - See the internal memorandum from the Director-General for Personnel and Administration, R. Hay, to the official in question, dated 11 January 1990, annex 2(b) of the application.

(10) - Letter from the Director-General for Agriculture in the Commission, dated 12 January 1990, Annex 2(a) of the application.

(11) - See the letters of 15 and 29 November 1989 already mentioned in footnote 8.

(12) - See above at para. 8. The other language versions confirm this interpretation. The French text for example states : ...des constatations qu' il a faites en raison de ses fonctions ; the Dutch text: ... hetgeen hij in verband met zijn ambtsbezigheden heeft bevonden ; the German text: ... bei seiner amtlichen Taetigkeit bekannt gewordenen Tatsachen and the Italian text: ... fatti di cui sia venuto a conoscenza a causa del suo ufficio .

(13) - See annex 2b of the application.

(14) - See para. 18.

(15) - See for example the judgment of 16 November 1983 in Case 188/82 Thyssen v Commission [1983] ECR 3721, the judgment of 10 June 1982 in Case 217/81 Interagra v Commission [1988] ECR 2233 and the judgment of 27 March 1980 Case 133/79 Sucrimex [1980] 1299.

(16) - Judgment in Joined Cases 19, 20, 25 and 30/69 Richez-Parise v Commission [1970] ECR 325, at paragraph 36.