Weddel & Co BV v Commission

I — Legal background to the dispute

Under Article 12 of the Protocol on the Privileges and Immunities of the European Communities,

‘In the territory of each Member State and whatever their nationality, officials and other servants of the Communities shall: (a) Subject to the provisions of the Treaties relating, on the one hand, to the rules on the liability of officials and other servants towards the Communities and, on the other hand, to the jurisdiction of the Court in disputes between the Communities and their officials and other servants, be immune from legal proceedings in respect of acts performed by them in their official capacity, including their words spoken or written. They shall continue to enjoy their immunity after they have ceased to hold office. ...’

Secondly, the first paragraph of Article 19 of the Staff Regulations of Officials provides :

‘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 interests of the Communities so require and such refusal would not entail criminal consequences as far as the official is concerned. An official shall continue to be bound by this obligation after leaving the service.’

An award procedure was opened by Commission Regulation (EEC) No 2539/87 of 24 August 1987 concerning the quantity of high-quality beef entitled to be imported from the United States of America and Canada under the arrangements established by Regulation (EEC) No 3928/86 (Official Journal 1987 L 241, p. 6), opening a Community tariff quota.

Article 1 of Regulation No 2539/87 provides as follows:

‘Licence applications can be submitted in accordance with Article 12 of Regulation (EEC) No 2377/80, during the first 10 days of September 1987 for a total quantity of 4617 tonnes of beef and veal originating in and imported from the United States of America or from Canada.’

Subsequently, the Commission considered it necessary to reduce by a certain percentage the quantity applied for. Commission Regulation No 2806/87 of 18 September 1987 on the issue of import licences for high-quality fresh, chilled or frozen beef and veal (Official Journal 1987 L 268, p. 59) thus provided in Article 1 thereof:

‘All applications for import licences in respect of September 1987... are hereby met to the following extent 0.2425% of the quantity requested. All applications of a quantity in excess of the 4617 tonnes made available by Regulation (EEC) No 2539/87 are deemed to have been made for that quantity.’

The question whether, under Regulation No 2539/87, a trader could apply for licences for a quantity greater than the available quantity (4617 tonnes) was raised by the United Kingdom at the meeting of the management committee for beef and veal on 11 September 1987. According to the summary minutes of that meeting produced by the Commission in Case C-354/87, ‘the Commission replied that the wording of Article 12 of Regulation (EEC) No 2377/80 did not specify any maximum quantity. The question was nevertheless doubtful and would require further consideration’.

II — Facts and procedure

On 9 September 1987 the applicant submitted an application for an import licence for 80000 tonnes, followed on 10 September by an application for 240000 tonnes.

On 11 September 1987 the Produktschap voor Vee en Vlees (Cattle and Meat Board, hereinafter referred to as ‘the Produktschap’), the Netherlands agency with which licence applications are lodged and which issues import licences, informed the Commission of the total quantity in respect of which applications had been lodged in the Netherlands. On 15 September 1987 the Commission replied that a licence application should relate to a total quantity not exceeding the total quantity available at the time when the application was lodged. The Commission added that, although there had been no specific ceiling under the arrangements applicable since 1982, it was clear from the circumstances and the wording of Regulation (EEC) No 2539/87 that a licence application might in no event exceed the quantity of 4617 tonnes available at the beginning of the relevant month.

The Produktschap replied that that interpretation of Regulation No 2539/87 was inconsistent with certain decisions taken earlier, in particular at the management committee meeting held on 11 September 1987, and would give rise to serious difficulties for the undertakings concerned in the Netherlands. Nevertheless, in its Regulation No 2806/87, the Commission established a ceiling for applications which reduced proportionally the quantities applied for.

As a result of that ceiling, the applicant obtained a licence for only 0.2425% of 4617 tonnes and was thus authorized only to import 11.196 tonnes.

The applicant brought an action for the annulment of that regulation, which was dismissed as unfounded by a judgment of the Court of 6 November 1990, cited above. The Court held inter alia that the ceiling on applications for licences already lodged was not unlawful, inasmuch as it did not introduce a new rule but merely clarified and was a necessary consequence of the preexisting Community rules.

On 2 November 1989 the applicant also applied to the Arrondissementsrechtbank te 's-Gravenhage for a provisional hearing of witnesses with a view to possible proceedings to establish the Produktschap's liability for the damage the applicant considered it had suffered as a result of the partial rejection of its applications for import licences. It claimed that it had in fact lodged import licence applications in excess of the available quota on the strength of information volunteered by the Produktschap.

The Produktschap objected that the Commission, through the intermediary of one of its officials, had stated to it that the system of import licences did not lay down any maximum quantity for licence applications. Thus licence applications for a quantity in excess of the available quota could have been made.

By a letter of 29 November 1989 the applicant requested the Commission to ensure that the official concerned would receive permission to give evidence in legal proceedings, as expressly required by Article 19 of the Staff Regulations of Officials of the European Communities.

The applicant informed the Commission on 14 December 1989 that an order for the hearing of witnesses, including the Commission official in question, had been made by the national court on 11 December 1989.

On 11 January 1990 the Commission refused to grant such permission to the official on the ground that Case C-354/87, mentioned above, involving the same facts, was at that time pending before the Court of Justice, and that the questions on which the official was being asked to give evidence were being answered officially in those proceedings by the Commission through the intermediary of the authorized department (Legal Service, Agent of the Commission).

By a letter of 12 January 1990, a copy of that refusal was forwarded to the applicant.

On 16 January 1990 the Rechtercommissaris heard four other witnesses summoned, who asserted that in reply to questions by the Produktschap the official of the Commission, before the deadline for submission of licence applications, had expressly stated on several occasions and without qualification that quantities in excess of the quantities available could be applied for.

On 7 March 1990 the applicant brought before the Court this application for the annulment of the refusal to permit the official in question to give evidence.

Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court opened the oral procedure without any preparatory inquiry.

By an order of 15 May 1991, the Court refused to grant certain applications made by the Commission for certain documents or parts of documents to be withheld from the proceedings.

III — Forms of order sought by the parties

The applicant claims that the Court should:

i) annul the Commission's decision of 12 January 1990;

ii) order the Commission to pay the costs.

The Commission contends that the Court should:

i) dismiss the application;

ii) order the applicant to pay the costs of the proceedings.

IV — Submissions and arguments of the parties

1. Admissibility

(a) The subject-matter of the dispute

The Commission points out that the application seeks the annulment of the ‘Commission's decision’, communicated to the applicant by a letter dated 12 January 1990, or annexed thereto.

In breach of Article 38(1 )(c) of the Rules of Procedure, the applicant omitted to state which decision it was challenging.

To the extent to which the action is directed against the letter addressed to the applicant by the Director-General for Agriculture, that letter merely constitutes a communication from the Commission to the applicant; its annulment, which would leave intact the refusal addressed to the official, could have no legal effect.

If the application is to be deemed to be directed against the refusal to grant permission to give evidence, that refusal constitutes a decision by the appointing authority addressed to the official concerned. Such a decision is purely of an internal nature and has no effect on the applicant.

The applicant considers this distinction to be artificial. The decision by the appointing authority to refuse permission under the terms of Article 19 of the Staff Regulations, taken on 11 January 1990, was notified to the applicant by letter of 12 January 1990. That letter referred to the memorandum of the said authority. The legal consequences with regard to the applicant flowed from the notification of the refusal decision contained in the letter of 12 January 1990.

The application is sufficiently clear. Article 38(l)(c) of the Rules of Procedure is intended to ensure that the party proceeded against and the Court are informed sufficiently in order to comply with the law of the matter against which the application is directed. The Commission does not seem to have any problems in this regard.

(b) The addressee of the decision

According to the Commission, in so far as the application must be deemed to be directed against the decision by the appointing authority, the sole addressee of that decision is the official requested to give evidence in legal proceedings, to the exclusion of the applicant.

Nor can the applicant allege that that decision concerns it directly and individually.

The applicant considers that the wording of Article 19 of the Staff Regulations in no way precludes a request for permission for an official to give evidence from being made by a third party who is directly concerned. In the present case it was the applicant which took the initiative in connection with such request. The Commission's decision adopted under Article 19 of the Staff Regulations constitutes a direct response to the request made by the applicant, which is therefore in actual fact the addressee, as defined in Article 173 of the EEC Treaty, of the decision refusing permission.

In order to determine who bears the risk in respect of information given by the Commission if such information turns out to be incorrect, the competent Commission official ought to be heard on what the Produktschap asked him and what it said to him and what the official said in reply to the Produktschap.

2. Substance

The applicant considers that the refusal to grant permission is unlawful.

1) The official in question is called upon to give evidence in order to determine whether there are sufficient grounds on which the civil liability of the Produktschap may be established. He is not being requested to give evidence in relation to information of which he has knowledge by reason of his duties, to account for information given or to give an interpretation before a national court of the Community rules applicable to beef, but to state what information he gave to the Produktschap, when and how many times he gave such information and whether he knew that his replies would be passed on to the parties concerned. In giving information to the Produktschap, at its request, within the context of the management of the Common Agricultural Policy, the official concerned did not infringe his duty of discretion under Article 214 of the Treaty and Article 17 of the Staff Regulations. Under Article 19 of the Staff Regulations, such information cannot therefore be regarded as information which may not be disclosed by an official in legal proceedings by virtue of that provision. Under Article 19 an official should be able to testify to a court on what he said to one or more parties to proceedings without infringing his duty of discretion mentioned in Article 17.

2) Permission to give evidence may be refused, under Article 19 of the Staff Regulations, only if specific interests so require, and not the general Community interest. A global reference to the general interest is therefore not sufficient. The expression ‘interests of the Communities’ signifies solely major interests of the Communities, in particular the preservation of the secrecy of confidential information given by third parties to the Communities, or vital Community interests. The reasons put forward by the Commission are inadequate and mean that the conduct of the procedure and the establishment of the truth in national proceedings in which the Commission is directly or indirectly involved would depend upon the ‘procedural strategy’ adopted by the Commission. Moreover, the application of Article 19 of the Staff Regulations in no way prevents the official from appearing at the hearing after having been duly summoned. At such time the official could, if certain questions compelled him to do so, invoke Article 191(2)(b) of the Netherlands Code of Civil Procedure on exceptions for reasons of confidentiality from the duty to give evidence. Where the appointing authority, invoking the interests of the Communities, properly refuses in such a case to grant permission to reply to questions, the Netherlands court would thus be required to apply Article 191(2)(b), after requesting the Court if appropriate under Article 177 of the Treaty to rule whether the Commission is entitled to invoke the interests of the Communities in that case. Certainly, the interpretation of Article 19 of the Staff Regulations falls within the sole competence of the Court of Justice and the uniformity of Community law would not be jeopardized if the official were to give evidence in the national proceedings.

3) It follows from the second sentence of Article 19 that the permission required can only be refused if such refusal will not entail criminal consequences as far as the official is concerned. If the official refuses to appear as a witness, owing to the refusal by the Commission, he renders himself liable under Netherlands law to imprisonment under civil law, which has the same consequences as privation of liberty under criminal law. The integrity and the liberty of the official would prevail, if a refusal to give evidence were likely to entail for him criminal consequences or consequences which must be assimilated thereto. Article 12(a) of the Protocol on the Privileges and Immunities of the European Communities gives officials immunity from national criminal proceedings only for things done, said or written in the course of their official duties. That question does not arise here: the official in question is not under threat of criminal proceedings for what he said to the Produktschap. The Commission considers that its refusal to grant permission is justified by a matter relating to the general interest and on certain specific grounds.

a) Article 19 of the Staff Regulations concerns ‘information’ of which the official has knowledge ‘by reason of his duties’, that is to say all activities relating to those duties, or everything which the official has or has not done in the performance of his duties, including written or oral statements made inside or outside the institution.

b) The defence of the interests of the Communities referred to in Article 19 of the Staff Regulations involves the Commission in balancing the proper functioning of the Common Agricultural Policy against the interim hearing of witnesses. The decentralized operation of the rules on agricultural policy raises a number of practical problems both for the Community and national authorities, which the Commission seeks to alleviate by creating the conditions for fruitful cooperation between its officials and the national authorities. Many problems are resolved informally by telephone or telex. Under those circumstances, the views expressed by an official may not always be regarded as the Commission's official views. Exchanges of letters, telex and telephone conversations between officials and national authorities with regard to the operation of the rules on agricultural policy are not officially binding on the Commission. The provisional hearing sought by the applicant is for the purpose not of preserving evidence, but of ascertaining whether an action brought against the Produktschap has any prospect of success. Yet even if it were shown, as a result of the evidence given by the official concerned, that the Produktschap was merely stating what the official himself had asserted, that would not alter the fact that statements by Commission officials are not binding. The Produktschap acts under its own responsibility, even when it is going on statements made by officials. If every communication were to be described as an act capable of giving rise to an action, or if every official giving information to a national authority could subsequently be rendered liable for it before a national court, the Commission would be obliged to change its working methods, which would involve the risk of compromising the proper management of the common organization of agricultural markets. In reality the official would be asked about his own interpretation of the rules in question or the interpretation to be adopted, in his opinion, by the Produktschap. The Commission could not permit one of its officials to be obliged thus to provide an interpretation of the Commission's rules in the context of evidence given - by him. Neither the Commission nor any of its officials are authorized to provide a legitimate and binding interpretation of a set of rules. Only the Court of Justice is empowered to do that. The Commission's refusal neither has, nor could have, any influence at all on the proper conduct of the case before the national court, irrespective of the annulment or otherwise of the regulation by the Court in Case C-354/87, mentioned above: No contact ever took place between the applicant and the Commission: the applicant is entirely basing itself on what it had heard said. For the Commission it goes without saying that an official cannot be required to give evidence on the veracity of hearsay.

in the former case the evidence given would no longer play any role and the applicant could possibly invoke the second paragraph of Article 215 of the EEC Treaty;

in the latter case the only possibility remaining open to the applicant is to have recourse to the Produktschap. If the Produktschap's liability were to be established, it or the Netherlands State could in turn have recourse to the Commission.

c) Netherlands law contains no criminal penalties in the case of a refusal to give evidence. Furthermore, if the evidence given by the Commission official in fact conflicts with the Community interest, the question of any criminal consequences could not play any role. In fact, in such a case Community law, upon which the legitimate refusal to grant permission to give evidence is founded, overrides national law, and the official concerned cannot be prosecuted. That immunity from criminal proceedings enjoyed by the official is expressly laid down in Article 12(a) of the Protocol on the Privileges and Immunities of the European Communities. The fact that the official concerned would possibly be able, under Netherlands law, to claim exemption, in no way affects the lawfulness of the decision taken by the Commission. In fact the Community official's position vis-à-vis the national court and national proceedings, in the context of the performance of his duties, is defined by Community law. It is only in that way that the uniform protection of the Community interest may be ensured.

J. L. Murray

Judge-Rapporteur

1 Language of the case: Dutch.

2 Judgment of 6 November 1990 Weddel v Commiííion [1990] ECR I-3847.

3 Commission Regulation (EEC) No 2377/80 of 4 September 1980 on special detailed rules for the application of the system of impon and export licences in the beef and veal sector (Official Journal 1980 L 241, p. 5).

4 Judgments in Case 188/82 Thyssen v Commission [1983] ECR 3721, Case 133/79 Sucnmex v Commission [1980] ECR 1299, and Case 217/81 Interagra v Commission [19821 ECR 2233.