C-145/83

Commission of the European Communities, represented by N. Koch, a Legal Adviser, and K. Banks, a member of its Legal Department, acting as Agents, assisted by J. Lever QC, of Gray's Inn, with an address for service in Luxembourg at the office of G. Kremlis, a member of the Commission's Legal Department, Jean Monnet Building, Kirchberg,

defendant,

APPLICATION under Article 178 and the second paragraph of Article 215 of the EEC Treaty,

THE COURT

composed of: Lord Mackenzie Stuart, President, U. Everling, K. Bahlmann and R. Joliét (Presidents of Chambers), G. Bosco, T. Koopmans, O. Due, Y. Galmot and T. F. O'Higgins, Judges,

Advocate General: G. F. Mancini Registrar: H. A. Rühi, Principal Administrator

The facts of the case, the course of the Articles 162 and 273 of the Swiss Penal procedure and the conclusions, submissions Code. It sentenced him in absentia to one and arguments of the parties may be year's imprisonment (suspended). Sub­ summarized as follows: sequently the appeals lodged against that decision and an application to reopen the proceedings were dismissed. I — Facts On 28 May 1982 the applicant lodged a petition, in which he laid a complaint A. Summary of the facts against Switzerland, with the European Commission of Human Rights. However, In early 1973, the applicant, Stanley George by a decision of 9 May 1983, the Adams, who was employed by Commission of Human Rights rejected the Hoffmann-La Roche & Co. (hereinafter petition as inadmissible on the ground that referred to as 'Roche') in Basle until 31 it was out of time. October 1973, supplied the Commission of the European Communities with evidence On 18 July 1983 the applicant brought this concerning anti-competitive practices action under Article 178 and the second engaged in by that company. That infor­ paragraph of Article 215 of the EEC Treaty. mation led the Commission to adopt its He asks the Court to examine the legality decision of 9 June 1976 imposing a fine on of the acts and/or omissions of the Roche. That decision was confirmed in all Commission of the European Communities essential respects by the Court's judgment and/or its servants in the performance of of 13 February 1979 (Case 85/76 their duties relating to: Hoffmann-La Roche v Commission [1979] ECR 461). (1) The disclosure on diverse occasions, in breach of confidence, of information On 31 December 1974 the applicant was leading to the arrest, detention, trial arrested by the Swiss authorities as he and conviction of the applicant in crossed the border from Italy into Switzerland; and Switzerland. The applicant was charged, in connection with the information which he had supplied to the Commission, under (2) The failure to advise the applicant, in Articles 273 and 162 of the Swiss Penal breach of an obligation to give proper Code, which concern respectively the professional advice, that he had the disclosure of business information and right to petition the European breach of business confidentiality. On 21 Commission of Human Rights. March 1975 the Swiss authorities released the applicant on bail. The applicant also asks the Court to order the Commission to pay damages to make By judgment of 1 July 1976 the Strafgericht good the injury suffered by the applicant by Basel-Stadt [Criminal Court, Basle] found reason of such wrongful acts and/or the applicant guilty of offences against omissions.

'I request you not to let my name be connected with this matter. However I 5. Subsequently all communication remain at your entire disposal for further between the applicant and the Commission information, as well as documentary officials ceased. On 31 October 1973 the evidence about every point which I have applicant resigned from Roche and on 1 raised in this letter. Furthermore I am April 1974 took up residence with his wife prepared to discuss any point with your and three children in Italy. 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 C. The Commission's investigation of Roche would be prepared even to appear before under Article 86 of the EEC Treaty 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 1. Following the events described above, help the Commission commenced an investigation of Roche's activities in the areas described to the Commission by the 2. By a letter dated 26 March 1973, Mr applicant. Schlieder, then Director-General of the Commission Directorate-General for Competition (DG IV), suggested that the 2. As part of that investigation, three applicant should have a discussion on the officials of Commission DG IV visited the points which he had raised with Mr Carisi, offices of Roche's French subsidiary at the Director for Inspection in Directorate- Neuilly on 22 October 1974. They saw the General IV. director of the subsidiary, Mr de Reynier, and they examined a number of the company's files without finding copies of 3. On 9 April 1973 the applicant had an the documents that the applicant had interview with Mr Carisi and Mr Rihoux, supplied to the Commission.'Mr de Reynier both Commission officials. In the course of denied knowledge of the existence of such that interview he supplied the Commission documents. The officials then indicated to with certain information concerning Roche's him that they knew that such documents activities. existed as they were themselves in

3. On 29 October 1974 an official of DG IV made a second visit to the offices of Roche's French subsidiary, whilst two other 1. On 8 November 1974 Dr Alder, a Swiss officials visited its Belgian subsidiary. The lawyer acting on behalf of Roche, made a officials took with them copies of the 14 visit to Commission Directorate-General IV 'Management Information' memoranda and during which he sought to discover how the of the letter of 25 June 1973 to the directors Commission had come into possession of of Roche from its president. In making the documents in question. He raised the those copies they had covered up passages question whether it was really necessary to which looked as though they might indicate institute, as Roche was considering doing, the particular source of the documents. The proceedings under Article 273 of the Swiss Commission officials saw the directors of Penal Code for 'economic espionage', since the two subsidiaries, Mr de Reynier and Mr what mattered was identifying the source of Vandendael, and showed to them the copies the 'leak' and taking appropriate steps of the documents for verification of their within Roche to prevent any repetition. Dr authenticity. At those interviews both Mr de Alder intimated that if the Commission Reynier and Mr Vandendael asked the agreed to supply the informant's name or to Commission officials to say how the indicate whether or not the informant was Commission had come into possession of at Basle, Roche would be willing to provide the documents. The officials refused to the documents and data necessary for the reply to that question. Finally the officials Commission's investigation and, in addition, handed over the copies in question to the would not take criminal proceedings against Roche employees and in return received the informant. The officials of DG IV at confirmation that the documents were first refused to indicate the origin of the authentic. copies but, in the end, agreed that they would consider informing Dr Alder whether the person who had passed the documents to the Commission was a Roche employee.

3. On 18 December 1984 Dr Alder, on behalf of Roche, sent a letter to the office 5. On 1 January 1975 the applicant was of the Public Prosecutor, Berne, preferring formally charged with 'economic espionage' a charge against a person or persons contrary to Article 273 of the Swiss Penal unknown for disclosure of business infor­ Code. He was not allowed to communicate mation in contravention principally of with his family and was held in solitary Article 273 of the Swiss Penal Code and confinement in prisons first in Lugano and asking the Public Prosecutor to open a then in Basle. In the course of his criminal investigation into the matter. imprisonment he was frequently interviewed According to that letter, during the visits of by officials of the Swiss Public Prosecutors the Commission officials to the Roche sub­ office. His wife was also 'questioned at the sidiaries at Neuilly and Brussels on 29 beginning of January, at the Lugano police October 1974 'it was possible with the office. On 10 January she committed agreement of the abovementioned suicide. Community officials to make photocopies — which are enclosed — of the Roche documents in the possession of the European Commission'. Moreover, Dr 6. According to the record of interviews Alder disclosed, referring in particular to which took place from 22 to 24 January those copies, that enquiries into the origin 1975 the applicant claimed that although he of the documents indicated that their source had provided information orally to the was to be found first and foremost within a Commission, he had not supplied it with certain marketing group and that the any documents. The applicant denied that applicant was the principal suspect. In that he had admitted supplying documents to the respect Dr Alder stressed that following his Commission and he claimed that the record interview with the Commission officials on 8 of 31 December 1974 and 1 January 1975 November 1974 he had the impression that did not properly reflect what he had said, the Commission's informant no longer probably because no interpreter was present worked for Roche. at those first interviews.

conversation with Mr Schlieder of the On 22 and 29 October 1974, authorized Commission in the course of which the Commission officials called on Michel de Commission official acknowledged that the Reynier, the director of Hoffmann-La applicant was the Commission's informant. Roche & Co. AG in Neuilly, France, and In that connection, on 14 February 1975 the began by making detailed inquiries into Swiss police officer, Mr Wick, according to market shares, customers, prices, terms, his notes taken on that day, informed Dr sales etc. on the vitamin market. Sub­ Portmann, a colleague of Dr Bollag, the sequently, they asked for "Management Swiss lawyer first retained by the applicant, Information" memoranda to be handed over that a high-ranking official of the and finally went as far as searching for such Commission had named the applicant as the documents themselves. person who had supplied the documents and as the source of the Commission's infor­ mation. Dr Portmann immediately informed the applicant of his conversation with Mr When their efforts proved unsuccessful, they Wick. handed de Reynier the abovementioned 16 photocopies (15 "Management Information' memoranda and the letter of 25 June 1973 from the president of Roche) ... and had 9. On 21 March 1975 the applicant was him confirm that they were copies of the released on bail of SFR 25 000 put up by documents drawn up by Roche Basle ... friends and relatives.

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on the vitamin market. Adams concedes that Court dismissed his appeal but revoked the the talks revolved around the information order prohibiting him from re-entering and instructions contained in the Switzerland. The judgment states inter alia "Management Information" memoranda that 'on 29 October 1974 EEC officials and in the Jann letter, focusing mainly on showed [14, documents headed production, sales and price agreements, "Management Information" and the letter production cutbacks, fidelity agreements of 25 June 1973 from the president of and secret meetings by senior represen­ Roche]... to the witness de Reynier in tatives from various chemical firms at which Paris, and he also took copies... '. It world market sharing arrangements were appears from a letter of 6 January 1978 that discussed ... the Commission sent an English translation of that judgment to the applicant.

3 2. On 21 March 1975, when he was released on bail by the Swiss authorities, the applicant returned to his home in Italy. He 12. The applicant appealed against that discovered that the commercial banks and judgment to the Appellationsgericht Basel government grant agencies which, prior to Stadt [Court of Appeal for the Canton of his arrest, had agreed to finance the farm, Basel-Stadt]. On 27 September 1977 that were no longer prepared to do so.

ADAMS v COMMISSION

However, in 1977, as a result of, among 3. In that respect, the applicant's former other things, the intervention of the lawyer, Dr Bollag, wrote to his client in a Commission, the applicant was again letter dated 11 October 1982 that: promised government loan and grant support in order to finance investment in farm buildings. Accordingly he began building, but the building programme fell 'You ask why your case was not submitted behind the schedule agreed with the auth­ to the European Commission of Human orities because he was unable to obtain Rights. We reply to your question as bridging finance. follows:

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information to the EEC ... '. Finally by a On 31 January and 1 February 1985 the letter of 18 August 1980 Dr Diefenbacher Court (Second Chamber) heard the informed the Commission that he had 'come applicant and took evidence from his former into possession of evidence proving in a Swiss lawyer, Dr Portmann, and various singular way the direct responsibility of the former and present officials of the EEC Commission for Mr Adams' most Commission. lamentable fate'. On conclusion of the preparatory inquiry and upon hearing the report of the Judge- II — Written procedure and conclusions of Rapporteur and the views of the Advocate the parties General, the Court decided to open the oral procedure without any other measure of By an application lodged at the Court on inquiry. However, with the agreement of 18 July 1983 the applicant brought this the parties, it was decided that the scope of action. the proceedings should for the time being be limited to the questions whether there is a In his application the applicant claims that basis for liability and whether the applicant's the Court should: action is time-barred.

Order the Commission to pay damages to make good the injury suffered by the III — Submissions and arguments of the applicant by reason of the wrongful acts parties and/or omissions of the Commission and/or of its servants in the performance of their The action is based on the applicant's duties; allegation that the Commision has been guilty of: In any event, order the Commission to pay the costs. (A) Breach of a duty of confidentiality in disclosing on diverse occasions his In its defence the Commission contends that identity as the Commission's informant, the Court should: which led to his arrest, his detention, his trial and his conviction in Dismiss the application; Switzerland; and

himself and the information which he documents supplied by him to the communicated to the Commission were in Commission does not show that he did not fact confidential in nature. That is clear care. At that date the applicant did not from the letter of 25 February 1973 sent by know that they had done so and did not the applicant to the Commission and from appreciate the consequences of that action the discussion at the meeting held in regarding his identification as the informant. Brussels on 9 April 1973. It also follows In particular he had no reason to believe from the general principles common to the and did not believe what the police laws of Member States and from the disclosed to him in that respect since he obligations imposed on the Commission by considered that it was a device to extract Article 214 of the EEC Treaty and by admissions from him without having actual Article 20 of Regulation No 17 of the proof. Moreover, the mere fact that the Council of 6 February 1962 (Official Commission had shown certain documents Journal, English Special Edition 1959-1962, would not of itself have been sufficient to p. 87). have put the applicant on notice of the circumstances giving rise to the Commission's liability for breach of a duty of confidentiality owed to him.

Thus suggest that the applicant was willing to on several occasions, both before and after dispense with confidentiality at any stage. October 1973, the Commission deliberately refused to name its informant — until the beginning of 1975 when Mr Schlieder disclosed his name. In addition the Commission's efforts to help the applicant show that it acknowledged that there was a direct and immediate connection between 1.2. The applicant denies the the applicant's arrest and his failure to make Commission's allegation that he himself any progress with his business in Italy and never believed that the Commission was that it was under an obligation to rectify the bound by a duty of confidentiality owed to situation.

It refers in that shown to the Roche employees the respect to the express terms on which the

2.2. Moreover, the Commission contends that the applicant himself did not thereafter regard the Commission as owing him any such duty. His behaviour showed that once he had left Roche he did not care whether 2.3. The fact that the Commission he was identified as the Commission's repeatedly declined to identify its informant informant and accordingly the Commission in no way establishes that it considered itself had good reason to believe that it was a under a duty of confidentiality. Its conduct matter of indifference to him. When the was dictated entirely by its general practice applicant left his employment with Roche of not divulging the identity of informants. and emigrated from Switzerland to Italy he In addition the Commission never did not even notify the Commission of his recognized the existence of any connection new address so that it did not know his whatsoever 'between his arrest and his whereabouts. In particular, Mr Carisi failure to make any progress with his denied having received such information. In business enterprise in Italy' or 'an obligation addition, when the applicant met the to rectify the situation'. The Commission

ADAMS v COMMISSION

did indeed take a number of steps to try to documents supplied to the Commission. help the applicant. However, those efforts Moreover, the Commission acknowledged reflected no more than a humane concern that it had permitted Roche employees to on its part. photocopy the documents and that when it did so its officials had covered up anything on them which seemed as if it might indicate their source. The Commission was therefore fully aware of the danger that the (ii) The question whether, if the documents might reveal the applicant's Commission was under a duty of identity and should have communicated confidentiality towards the applicant, it with him before showing them to anybody. committed a breach of that duty

2.1. The Commission points out that the 1.1. The applicant denies not having applicant never warned it not to divulge the warned the Commission that his identity as contents of the documents supplied by him. the informant could be inferred from the He agreed that the Commission could use

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the documents as part of a process of Moreover, it is clear from that judgment investigating Roche and ultimately talcing a that Roche's lawyer did not understand Mr decision against it, and the Commission Schlieder's statement as providing any itself found it necessary, as part of that confirmation that the applicant was the process, to disclose to Roche the contents of source of the Roche documents which had the documents. Moreover, when they come into the Commission's possession, and allowed the documents to be photocopied, it was only on that point that the charges the Commission officials covered up brought against the applicant were anything on them which looked as though it contested. might indicate the source of the documents. The copies had nothing on the face of them which would make it possible for persons in the position of the Commission officials to (b) The question whether the applicant's identify their origin. Furthermore the action is barred by virtue of Article 43 of the documents were circulars which had no Protocol on the Statute of the Court of Justice evident connection with the applicant, who of the EEC could have been identified by Roche only through a complex process of inference and by someone with a highly detailed knowledge of the organization and 1. The Commission contends that the operation of Roche. action brought by the applicant is in any event barred by virtue of Article 43 of the Protocol on the Statute of the Court of Justice of the EEC.

ADAMS v COMMISSION

If it applicant. The applicant simply chose to were otherwise time would start to run believe that there was no truth in that afresh each time the applicant considered allegation and to make no further inquiries that he had suffered some further item of in that connection for many years ther loss. eafter. In that respect the Commission denies any knowledge of a request from the applicant for an English translation of the 2. The applicant denies that his action is judgment of the Basle court of 1 July 1976. barred by virtue of Article 43 of the Protocol on the Statute of the Court of

1.2. The Commission contests the did not have good reason to believe them or applicant's claim that the period prescribed to draw from them the appropriate in Article 43 of the Protocol on the Statute inferences concerning the Commission's of the Court of Justice should begin to run liability. from the date when the Commission ceased to give 'its advice'. The Commission maintains that it never advised Dr Bollag on In addition the applicant draws attention to Community law or on the extent to which it the fact that at the beginning of August might be in breach of any obligations which 1980, his lawyer, Dr Diefenbacher, having it might owe to the applicant. obtained the relevant papers after considerable delay, informed him that an examination of the record of the criminal

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The applicant had hitherto been unaware of the applicant was one of the subjects on that breach of confidence because he had which the Commission advised Dr Bollag not seen or had his attention drawn to and, through him, the applicant. Since the copies of the relevant documentary Commission's advice could not be evidence. Even if he had seen them they independent and objective, the limitation would have told him nothing because he did period laid down in Article 43 of the not read German and could not afford to Protocol on the Statute of the Court of obtain a translation. Justice should begin to run from the date on which the Commission ceased to give its advice and/or when the applicant was himself actually informed of the facts. Moreover, the applicant's request for an English translation of the judgment of the Basle court of 1 July 1976 went unanswered by the Commission. The applicant claims that the Commission knew that had such a 2.3. The applicant claims, that in translation been furnished to him he would accordance with the case-law of the Court, immediately have become aware of the part the period of limitation which applies to played by the Commission in his arrest. proceedings in matters arising from non­ contractual liability cannot begin before all the requirements governing the obligation to Furthermore, even if the applicant had provide compensation for damage are believed, or ought to have believed, that the satisfied and, in particular, before the conversation between Dr Alder and Mr damage has materialized. In this instance Schlieder took place, it would not have put the damage to the applicant which has to be him on notice of the circumstances giving made good did not cease until, at least, the rise to the Commission's liability for his time of his release from prison in Italy on arrest. The Commission itself had stressed 12 February 1980. that Roche's lawyer had not, on the basis of his conversation with Mr Schlieder, interpreted the latter's statements as confir­ mation that the applicant was the source of B. The alleged breach of an obligation to the documents which had come into the advise the applicant as to his right to petition Commission's possession. the European Commission of Human Rights

2. The Commission denies that it owed any borrowed the sum of UKL 25 000, such duty of care to the applicant by virtue which sum is still owed by him. of which it had to give him advice in relation to his right to petition the European (iv) In order to advise and defend him in Commission of Human Rights. It paid the connection with the legal proceedings applicant's legal costs incurred in defending in Italy, the applicant instructed himself against certain charges in the Swiss Italian lawyers to whom he still owes courts and, save in respect of certain limited UKL 6 000 in respect of legal costs. topics in relation to which it gave the applicant's Swiss lawyers specialized advice, it paid those lawyers and left it to them to (v) As a result of the suffering caused by advise the applicant. the detention of her husband and the harrowing experience of her own interrogation the applicant's wife Moreover, in its rejoinder the Commission committed suicide on 10 January 1975 contends that the action brought by the at the age of 32. Since it was his wife applicant on the basis of the breach of that who looked after his home and alleged duty is in any event also time- children, the applicant had to sub­ barred. sequently employ a housekeeper from Monday to Friday who was paid a C. Tlie damage suffered by the applicant monthly wage of UKL 125 from 1 October 1975 to 1 October 1980. 1. The applicant claims that by reason of the acts and/or omissions of the (vi) The loss of reputation which the Commission and/or its servants he has applicant suffered generally as a result suffered the following damage: of his arrest, detention and trial in Switzerland had prevented him from (i) The loss of reputation in Italy suffered obtaining any kind of paid by him as a result of his arrest, employment since January 1976. The detention and trial in Switzerland applicant is at present aged 60 and at prevented him from obtaining the the time he left his employment at hitherto promised official and Roche in October 1973 was earning commercial financial support an annual salary of UKL 27 000. necessary to exploit his initial investment in his farming enterprise. (vii) As a consequence of his arrest, In its present semi-developed form his detention and trial in Switzerland the farm is unsaleable. His initial applicant lost the pension rights to investment is now worthless and the which he was entitled from his former applicant has lost the sum of UKL employers Roche. At the age of 65 the 125 000. applicant would have been entitled to a yearly pension of UKL 12 000. (ii) In order to guarantee repayment of the loans made by the Italian (viii) In respect of the mental anguish government grant agencies in respect caused to him as a result of his of the development of the pig farm the imprisonment in Switzerland, the applicant was required to take out an applicant claims the sum of UKL insurance policy at the cost of UKL 225 000. 6 000, which sum he has also lost. (ix) To be deducted: LIT 50 000 000 (iii) In addition, in order to maintain his (UKL 20 000) paid to the applicant by home and his family, the applicant the Commission on 29 May 1980.

2. The Commission considers that in any Commission were solely for its own use so event damages awarded to the applicant that it might acquaint itself with Roche's must be limited to compensation for his activities. He believes that he did not initial imprisonment in Switzerland. Any expressly state that the documents were not further loss or damage that the applicant to be shown to third parties; he did not do has suffered was not caused by any breach so because he did not imagine that the of duty on its part and is too remote to Commission would use them outside the form the subject of compensation. institutions and the Commission officials never suggested that they wished to show the documents to anyone.

October 1974. Certain of the documents contained notes in the applicant's hand, and in addition, in combination, they clearly 3. The applicant requests the Court to indicated the source of the leak. However, accept that last proposal. the applicant concedes that that point was never discussed with the Commission. After he had supplied the documents to the Commission, the applicant considered that there was no reason for him to know anything more about what the Commission IV — Summary of the hearing of 31 was going to do. He did not therefore ask

On the same that after he left Roche he would be occasion the applicant told Mr Carisi about prepared to appear before 'any court' to his family and informed him in particular give sworn evidence on his statements. that his wife was Swiss and that his parents- However, he did not think that it would be in-law lived in Italy. Finally, in the course of necessary for him to do so and, even if it a telephone conversation with Mr Carisi in were, he considered that his identity could early November 1973, the applicant be kept secret. In the course of his meeting explained that he intended to spend five with Mr Carisi and Mr Rihoux in Brussels months with his parents-in-law before going on 9 April 1973, the applicant stated that on to Latina and he gave their telephone the documents which he sent to the number. After the applicant had been

arrested in Switzerland, he managed to received the translation, since they have inform the Commission of his arrest by admitted that this was so and would not means of an anonymous letter. He hoped in have invented it. After his release in that way to obtain the Commission's help in Switzerland he never attempted to discover getting him out of the 'mess' he was in. how the Swiss police came into possession During his interrogation by the Swiss police of the incriminating documents. Finally the the applicant admitted in general terms that applicant acknowledges that the he had supplied the Commission with infor Commission has never admitted liability for mation regarding Roche. On that occasion his arrest. Police Officer Wick interrogated him on the basis of documents which he described as documents that the Commission officials had shown to the directors of the Roche subsidiaries in Paris and Brussels.

From the outset, moreover, Dr Bollag advised him that he would in any event be convicted by the Basle criminal court. Consequently when that prediction proved correct Dr Bollag The witness Dr Portmann, a Swiss lawyer, simply informed him of the result of the stated that the applicant's defence had been case and asked him for his agreement in undertaken at his request at the beginning lodging an appeal. The details of that of 1975. Initially the applicant's lawyers had judgment were not discussed in any way received instructions only from the applicant and it was not until 1980, after he had himself. Later, when he had been released changed lawyers, that the applicant received on bail, the lawyers received information details of it. The copy of that judgment did from the Commission but no specific instruc not reach him until 1982. As regards the tions. During the period of the applicant's judgment of the Court of Appeal of 27 imprisonment in Switzerland it was not September 1977, as far as the applicant possible for his lawyers to consult the pros remembers he did not receive a copy of that ecutor's file. Finally, the question whether

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ADAMS v COMMISSION

in Paris. They made every attempt, without proceedings and an action under Article 273 success, to obtain copies of the documents of the Swiss Penal Code against 'an supplied to the Commission by the informant or informants unknown' if the applicant. To that end they read to the staff Commission did not supply the information of the subsidiary extracts from the requested. At the time no one thought to 'Management Information' memoranda, inform the applicant of those threats. After without however showing them the 9 April 1973 the Commission was no longer documents in question. They then left in contact with the applicant, who had without having obtained what they were disappeared without giving the Commission looking for. The question then arose as to his address. In addition it had no reason to whether it was necessary to close the believe that the applicant would return to investigation despite the overwhelming Switzerland. In his letter of 21 July 1973, proof that the Commission had in its the applicant had stated that after 31 possession or whether to continue with it. It October of the same year he was going to was necessary to weigh up carefully the leave Roche. Finally from the Commission's interests at stake, namely, on the one hand point of view it was permissible to think that the public interest which required that the Dr Alder's threats were merely 'bluff'.

In that respect Mr Rihoux stated that the applicant had never forbidden the Commission to use the documents in a manner which was not confidential. Altered copies of the documents, were therefore prepared and it subsequently proved necessary to pass them to Roche during the visit to the subsidiaries on 29 October 1974 in order to obtain from

Mr Kohlhase, former director of the At the sitting it was stated on behalf of the Commission Representation in Geneva, applicant that the Commission had acted in explained that he had been called to breach of the duty of confidentiality since it Brussels on 27 January 1975 at Mr owed to him in particular on three Schlieder's request. Mr Schlieder explained occasions. In the first place the disclosure of to him that the Commission had received an the copies of the documents to the Roche anonymous letter stating that the applicant employees in October 1974 enabled Roche had been arrested and he requested Mr to deduce therefrom that in all probability Kohlhase to contact Dr Alder in order to the applicant was the Commission's obtain confirmation of that information. informant. Secondly the Commission failed The following day Mr Kohlhase therefore to warn the applicant of the risk that he met Dr Alder and asked him directly would inevitably run if he returned to whether it was true that the applicant was in Switzerland, although it was its duty to do

ADAMS v COMMISSION

so, either after the documents had been explained the content of the relevant handed over to the Roche employees or, provision of the Swiss Penal Code. Thirdly and in any event, after Dr Alder's first visit and finally, the applicant was named as the to the Commission in November 1974, Commission's informant in February 1975 when the Commission was made fully aware by Mr Schlieder. of the gravity of that risk. Dr Alder told the Commission officials that Roche was considering the possibility of criminal The Advocate General delivered his proceedings against the informant and even Opinion at the sitting on 11 July 1985.

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3 With the agreement of the parties the Court decided that the scope of the proceedings should for the time being be limited to the questions whether there is a basis for liability and whether the applicant's action is time-barred.

The events which gave rise to the dispute

4 The applicant, who was at the time employed by the Swiss company Hoffmann-La Roche & Co. AG (hereinafter referred to as 'Roche'), Basle, sent a letter on 25 February 1973 to the Commissioner for Competition in which he described a number of anti-competitive practices engaged in by Roche. In that letter, which was headed 'personal and confidential', the applicant stated that he was still working for Roche but that he planned to leave around July 1973 and to start his own meat business in Italy, near Rome. He concluded his letter 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 ... '.

5 Following a reply dated 26 March 1973 from Mr Schlieder, then Director-General of the Commission's Directorate-General for Competition (DG IV), the applicant had an interview in Brussels on 9 April 1983 with two Commission officials, Mr Carisi and Mr Rihoux. In the course of that interview, he supplied the Commission with certain additional information concerning Roche's activities. Moreover, in April and July 1973 the applicant sent the Commission photocopies of a considerable number of internal documents issued by Roche, including 14 'Management Information' memoranda and a letter to the directors of Roche from the company's President.

9 In the meantime, on 8 November 1974, Dr Alder, a Swiss lawyer acting on behalf of Roche, visited the Commission in order to discover how it had come into possession of the documents in question. On that occasion Dr Alder intimated that if the Commission provided information as to the informant's identity, Roche would be willing to provide the necessary data for the Commission's investigation and, in addition, would not institute criminal proceedings against the informant, a step which it was otherwise proposing to take on the basis of Article 273 of the Swiss Penal Code which concerns economic espionage in the form of the disclosure of business information. According to the Commission, the officials who took part in the meeting finally 'agreed that they would consider informing Dr Alder whether the person who had passed the documents to the Commission was a Roche employee'. However, when Mr Schlieder was informed of Dr Alder's proposal he gave instructions that in no circumstances would the Commission depart from its general practice of not divulging the identity of its informants. Accordingly, on 6 December 1974 Dr Alder was informed that the Commission had no intention of discussing the origin of the documents in its possession.

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10 By a letter dated 18 December 1974, addressed to the Public Prosecutor's Office, Berne, Dr Alder, on behalf of Roche, laid a complaint against a person or persons unknown for economic espionage within the meaning of the abovementioned Article 273 of the Swiss Penal Code. On the basis in particular of the copies of the documents handed over by the Commission officials to the Roche employees in October 1974, Dr Alder drew the conclusion that the applicant was the main suspect.

ADAMS v COMMISSION

14 On 21 March 1975 the applicant was released on bail of SFR 25 000. The Commission subsequently reimbursed that sum and in addition paid the fees of the applicant's lawyers in connection with the criminal proceedings.

is On 1 July 1976 the Strafgericht Basel-Stadt [Criminal Court, Basle] found the applicant guilty, inter alia, of an offence against Article 273 of the Swiss Penal Code and sentenced him in absentia to one year's imprisonment (suspended). It is clear from the text of the judgment, which was drafted in German, that in the course of the visits of the Commission officials to the Roche subsidiaries in October 1974, the officials had handed over to the Roche employees photocopies of documents supplied by the applicant to the Commission. In addition, it is pointed out in the judgment that the applicant admitted having informed the Commission officials orally of the activities of Roche which, in his view, constituted anti-competitive schemes. Finally, the judgment indicated that the applicant's identity as the Commission's informant also emerged from the telephone call from Mr Schlieder to Dr Alder.

16 On 27 September 1977 the Appellationsgericht Basel-Stadt [Court of Appeal for the Canton of Basel-Stadt] dismissed the applicant's appeal. That judgment stated, inter alia, that in the course of their visit to the Roche's French subsidiary, the Commission officials had shown the documents in question to the director of the subsidiary, who had taken copies of them. On 6 January 1978 the Commission sent a letter to the applicant enclosing an English translation of that judgment.

21 At that hearing the applicant explained inter alia that by his letter of 23 February 1973 he had sought to impose on the Commission an obligation of confidentiality which was continuous and without any date of expiry. Although he had stated in that letter that after he had left Roche he would be prepared to appear before any court, he did not think that it would be necessary for him to do so and, even if it were, he considered that his identity could be kept secret. In addition, Mr Carisi and Mr Rihoux promised that the applicant's name would not be mentioned in the course of the investigation. The applicant believes that he did not expressly state that the documents sent to the Commission were not to be shown to third parties, or that, taken together, they might reveal to Roche the division from which they came, because he did not for a moment imagine that the Commission would use them outside the institution. Nor did he ask to be kept informed about the progress of the investigation of Roche. It would, however, have been possible for the Commission to keep him so informed, because, as a result of the letter of 25 February 1973, it was already aware of his plan to set up home in Italy and, in the course of the meeting with Mr Carisi and Mr Rihoux in April 1973, the applicant had stated that he was going to live in the small town of Latina.

22 Mr Schlieder stated inter alia that it had been clear to the Commission that the investigation of Roche would have to wait in any event until the applicant had left

ADAMS v COMMISSION

23 Mr Rihoux stated inter alia that he had understood the applicant's letter of 25 February 1973 to mean that after the applicant's departure from Roche the Commission was free to do as it thought fit. Moreover, he received no instructions from his superiors as to the manner in which the information obtained from the applicant should be treated. At the meeting of 9 April 1973 with the applicant the question of the confidentiality of the applicant's information was not raised and the applicant gave no information regarding his future address. In October 1974, Mr Rihoux and two of his colleagues, including Mr Pappalardo, visited the Roche subsidiary in Paris, where they made every attempt, without success, to obtain copies of the documents supplied by the applicant. To that end, they read to the Roche employees extracts from those documents, without however showing the said documents to them. The question then arose as to whether the investigation would have to be closed despite the overwhelming proof that the Commission had in its possession. It was therefore necessary to weigh up carefully the interests at stake, namely, the public interest, which required that the provisions of the Treaty should be enforced, and the individual interest, which was contrary to the Commission's disclosing the informant's identity. In particular, the method by which the documents had been passed to the Commission and the indications on the face thereof militated against their use. It was therefore decided to use, and to pass on to Roche, edited photocopies of the documents which were both

27 In view of the fact that the action is founded on several events which occurred at different times and which became known to the applicant at different times, the pertinence of the objection that the action is time-barred cannot be considered before the question whether any of those events, and if so which, are capable of giving rise to the non-contractual liability of the Commission has been examined. Only after that question has been resolved will it be possible to determine whether the action is barred by virtue of the five-year limitation period laid down in Article 43 of the Protocol on the Statute of the Court of Justice of the EEC. It is therefore necessary, in the first place, to consider the submissions regarding the existence of a basis for liability.

ADAMS v COMMISSION

The existence of a basis for liability

(a) Breaches of the duty of confidentiality and the duty to warn the applicant

28 The applicant claims that the relationship between the Commission and himself was in fact confidential in nature, as is clear both from his first letter to the Commission, dated 25 February 1973, and the discussion which he had with the Commission officials at the meeting on 9 April 1973. The existence of a duty of confidentiality follows, moreover, from the general principles common to the laws of the Member States and from the obligations imposed on the Commission by Article 214 of the EEC Treaty and by Article 20 of Regulation No 17 of the Council of 6 February 1962 (Official Journal, English Special Edition 1959-1962, p. 87).

30 Although the Commission was therefore bound by a duty of confidentiality towards the applicant, in his view it acted in breach of that obligation on three occasions in particular. In the first place, the disclosure of the copies of the documents to the Roche employees in October 1974 enabled Roche to infer therefrom that the applicant was the most likely informant. Secondly, the Commission failed to warn the applicant of the risk that he would inevitably run if he returned to Switzerland. In the applicant's view, it was the Commission's duty to warn him of that risk, either after the documents had been handed over to the Roche employees or, and in any event, after Dr Alder's first visit to the Commission in November 1974, when the Commission was made fully aware of the gravity of that risk. In that respect, the applicant points out that Dr Alder had told the Commission officials that Roche was considering the possibility of

JUDGMENT OF 7. 11. 1985 — CASE 145/83

criminal proceedings against the informant and that the lawyer had even explained the contents of the relevant provision of the Swiss Penal Code. Thirdly, and finally, in February 1975 Mr Schlieder named the applicant as the Commission's informant.

32 In any event the Commission contends that even if it were under a duty of confidentiality regarding the applicant's identity, it did not act in breach of that duty. The fact that it handed over photocopies to the Roche employees did not amount to such a breach, since it could not possibly have been foreseen that Roche would be able to identify the source of the documents by examining the copies. The applicant never requested the Commission not to disclose those documents to Roche. On the other hand, he agreed that the Commission could use the documents in connection with an investigation of that firm. The Commission had considered that it was necessary to disclose them to Roche but it nevertheless took care to remove anything which looked as though it might indicate their specific source. Moreover, the documents in question had no evident connection with the applicant, who could have been identified only by someone with a highly detailed knowledge of the organization and the operation of Roche. The applicant had never warned the Commission of such a risk.

33 As regards the possible existence of a duty on the part of the Commission to warn the applicant, the Commission contends that such a duty cannot be inferred from any duty of confidentiality which may have existed. In so far as the applicant is

ADAMS v COMMISSION

putting forward a separate submission in this respect, the Commission adds that it is impossible to establish in law that, following Dr Alder's visit, it was under a duty to warn the applicant of the risks that he would run if he returned to Switzerland. In addition, the Commission had no reason to believe that Roche would be able to identify the applicant as the informant. Finally, during his telephone conversation with Dr Alder at the beginning of February 1975, Mr Schlieder revealed nothing that Roche and the Swiss authorities did not already know, since by then the applicant had already admitted that he was the Commission's informant.

JUDGMENT OF 7. 11. 1985 — CASE 145/83

before any court after he had left Roche. The giving of evidence before a court implies that the witness has been duly summoned, that he is under a duty to answer the questions put to him, and is, in return, entitled to all the guarantees provided by a judicial procedure. The applicant's offer to confirm the accuracy of his information under such conditions cannot therefore be interpreted as a general statement releasing the Commission from its duty of confidentiality. Nor can any such intention be inferred from the applicant's subsequent conduct.

37 It must therefore be stated that the Commission was under a duty to keep the applicant's identity secret even after he had left his employer.

40 It appears from the documents before the Court that the Commission was fully aware of the risk that the handing over to Roche of the photocopies supplied by the applicant might reveal the informant's identity to the company. For that reason

ADAMS v COMMISSION

the Commission officiais first attempted to obtain other copies of the documents in question from the Roche subsidiaries in Paris and Brussels. When that attempt failed, the Commission prepared new copies of the documents which it considered were the least likely to lead to the discovery of the applicant's identity and it took care to remove from those copies any indication which it considered might reveal the source of the documents. However, since it was not familiar with Roche's practices regarding the distribution of the documents in question within the company, the Commission could not be sure that those precautions were sufficient to eliminate all risk of the applicant's being identified by means of the copies handed over to Roche. The Commission was therefore, in any event, imprudent in handing over those copies to Roche without having consulted the applicant.

JUDGMENT OF 7. 11. 1985 — CASE 145/83

43 Although the applicant had not left any precise address making it possible for the Commission to contact him easily, in his letter of 25 February 1973 he had already indicated his intention of setting up his own meat business in Italy, near Rome . Even in the absence of other indications, that information would have enabled the Commission to make inquiries with a view to discovering where the applicant was staying. It is common ground that the Commission did not even attempt to find the applicant although it allowed almost one month to elapse before communi­ cating to Dr Alder its final refusal to discuss the origin of the documents in its possession, a refusal which was followed by the lodging of Roche's complaint at the Swiss Public Prosecutor's Office.

44 It must therefore be concluded that, by failing to make all reasonable efforts to pass on to the applicant the information which was available to it following Dr Alder's visit of 8 November 1974, even though the communication of that infor­ mation might have prevented, or at least limited, the damage which was likely to result from the discovery of the applicant's identity by means of the documents which it had handed over to Roche , the Commission has incurred liability towards the applicant in respect of that damage.

(b) The duty to advise the applicant with regard to the Convention for the Protection of Human Rights

45 The applicant's final claim is that inasmuch as it undertook in April 1975 to advise Dr Bollag on the preparation of the applicant's defence, the Commission owed a duty of care to the applicant, which consisted in giving him proper professional advice. By failing to advise the applicant in good time of his right to petition the European Commission of Human Rights, the Commission failed to fulfil that duty.

49 The applicant claims that, broadly speaking, the events on which he relies did not become known to him until 1980, after his new lawyer, Dr Diefenbacher, had had the opportunity to study the documents relating to the criminal proceedings. He did not believe the information supplied by the Swiss police and he was not able to read the Swiss judgments, which were drafted in German. In any event, he could not possibly have known of the events relating to Dr Alder's visit to the Commission on 8 November 1974.

50 According to Article 43 of the Protocol on the Statute of the Court of Justice of the EEC 'proceedings against the Community in matters arising from non-con­ tractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto'. That provision must be interpreted as meaning that the expiry of the limitation period cannot constitute a valid defence to a claim by a person who has suffered damage where that person only belatedly became aware of the event giving rise to it and thus could not have had a reasonable time in which to submit his application to the Court or to the relevant institution before the expiry of the limitation period.

51 In this case it must be borne in mind that the Court has based its conclusion in regard to the Community's liability on the fact that the Commission had not

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attempted to inform and to consult the applicant following Dr Alder's visit of 8 November 1974. It is clear from the information before the Court that the applicant could not have become aware of that fact until the preparatory inquiry in these proceedings, since Dr Alder's visit was mentioned for the first time in the Commission's defence. Therefore he could not have sought to establish the Community's liability on that basis before the normal date of expiry of the limitation period.

ADAMS v COMMISSION

On those grounds,

THE COURT,

as an interlocutory decision,

hereby:

(1) Orders the Commission to compensate the applicant to the extent of one half of the damage suffered by him as a result of the fact that he was identified as the source of information which led the Commission to impose a fine on his former employer, the Swiss company Hoffmann-La Roche, for certain anti­ competitive practices;

Delivered in open court in Luxembourg on 7 November 1985.

P. Heim A. J. Mackenzie Stuart Registrar President