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.