C-54/90
ECLI:EU:C:1991:451
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WEDDEL v COMMISSION
OPINION OF MR ADVOCATE GENERAL VAN GERVEN delivered on 28 N o v e m b e r 1 9 9 1 *
Mr President, in and imported from the United States of Members of the Court, America or from Canada.' '
1. By this application Weddel & Co. BV is requesting the Court to annul a Commission In the context of that award procedure, decision notified to it by letter of 12 Weddel & Co. BV, a trading company January 1990 concerning the refusal to engaged in the import and export of meat permit a Commission official to give and other food products (hereinafter evidence in national judicial proceedings. 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 Facts beef in total.
2. The facts of the present case are partly known to the Court from Case C-354/87 Weddel & Co. BV w Commission, in which After being informed by the Produktschap judgment was given on 6 November 1990. of the total quantity in respect of which Article 1 of Commission Regulation (EEC) applications had been lodged in the No 2539/87 of 24 August 1987 provided Netherlands, the Commission informed the that: 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 Regu- lation (EEC) No 2806/87 of 18 September 1987 it consequently applied a ceiling for licence applications in pursuance of which 'Licence applications can be submitted in the quantities applied for were propor- accordance with Article 12 of Regulation tionately reduced. 2 As a result of that (EEC) No 2377/80, during the first ten ceiling the applicant received a licence for days of September 1987 for a total quantity only 0.2425% of the available 4 617 tonnes of 4 617 tonnes of beef and veal originating 1 — OJ 1987 L 241, p. 6. * Original language: Dutch. 2 _ OJ 1987 L 26, p. 59.
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and was therefore able only to import to its questions concerning the existence of 11.196 tonnes of beef. maximum quantities for applications for import licences.
The applicant brought an action for the annulment of that Regulation in Case C-354/87, which has already been In order accurately to assess the chances of mentioned above. That application was success of proceedings for damages against dismissed by a judgment of 6 November the Produktschap, Weddel requested the 1990. 3 Arrondissementsrechtbank for a provisional hearing of witnesses to be held involving five persons including the Commission official who had communicated the infor- 3.
In November 1989 Weddel, in addition mation to the Produktschap. 5 On 11 to the application lodged with the Court, December 1989 the Arrondissement- brought proceedings for damages against srechtbank granted the application, 6 and on the Produktschap before the Arrondisse- 16 January 1990 four of the five witnesses mentsrechtbank (District Court), in the were heard by the Rechter-commissaris. Hague. 4 Those witnesses confirmed that in the period prior to the award procedure the Commission official referred to above had expressly and repeatedly without reser- vations stated in reply to queries by the Weddel points out that in the context of the Produktschap that 'more can be applied for abovementioned award procedure the than the available quota'. 7 Produktschap (on its own initiative) gave it information pursuant to which Weddel submitted applications for impon licences in excess of the available quota of 4 617.
The Produktschap must therefore be liable for the damage which Weddel alleges it 4. On 23 January 1990 the official suffered as a result of the partial rejection of concerned was summonsed to give evidence its licence applications. The Produktschap as a witness before the Rechter-commissaris does not contest that it informed Weddel as to information given by him to the that the applications for import licences Produktschap. Article 19 of the Staff Regu- could exceed the available quota but points lations of Officials of the European out that it was going on express and Communities (hereinafter referred to as the repeated communications made to it by the 'Staff Regulations') however provides that: Commission, through the intermediary of one of the Commission's officials, in reply 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 3 — Judgment of 6 November 1990 in Case C-354/87 application to the Arrondissementsrechtbank for a
Weddel & Co. BV v Commission [1990] ECR 1-3847, at provisional hearing of witnesses. paras. 35 and 36. The Court held that neither the principle 6 — See Annex 3(c) of the application with regard to the of equal treatment nor the principle of legal certainty had decision by the Arrondissementsrechtbank. been breached. The Court considered inter dia that the contested ceiling was not unlawful because it was not a 7 — P. 7 of the application and the minutes of 16 January new rule but mereh/ clarified and was a necessary conse- 1990 of the hearing of witnesses, annex 4 of the quence of the pre-existing Community rules. application, see principally p. 7, evidence of the head of the EEC department of the Produktschap, and also 4 — See the application to the Arrondissementsrechtbank for pp. 10-11, the evidence of the head of the Principal the holding of a provisional hearing of witnesses, point 1, Department for Meat and Poultry Products in the Direc- Annex 3(b) of the application. torate for market organization questions.
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'An official shall not, without permission Commission to exclude from the file certain from the appointing authority, disclose on documents or parts thereof was rejected by any grounds whatever, in any legal the Court by order of 15 May 1991. 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 The admissibility of the application for such refusal would not entail criminal annulment consequences as far as the official is concerned. [ . . . ] ' .
5. The Commission submits that Weddel's application for annulment is inadmissible, By letters of 15 and 29 November 1989 firstly since the subject-matter of the dispute Weddel requested the Commission to is not stated sufficiently clearly (see authorize the official in question to appear paragraph 6 below), and secondly since the as a witness in the context of the abovemen- applicant is not the addressee of the tioned provisional hearing of witnesses. 8 On contested decision, and is also not directly 11 January 1990 the Commission refused and individually concerned by that decision permission for the official to appear as a (see paragraph 7 below). witness. 9 By letter of 12 January 1990 Weddel was informed thereof. 10
6. Article 38(l)(c) of the Rules of In the present case Weddel requests the Procedure provide that the application Court to annul that refusal by the bringing a matter before the Court must Commission. In my Opinion I shall first state inter alia the subject-matter of the examine the admissibility of the application dispute. As has already been mentioned, for annulment (paragraphs 5 to 7 below), Weddel seeks the annulment of 'the decision then the applicability of the abovementioned of the Commission notified to it by letter of Article 19 of the Staff Regulations (see 12 January 1990'. The Commission alleges paragraphs 8 and 9 below) and, finally, the that it is not or not sufficiently clear from justification for the refusal to allow evidence the application lodged by Weddel against to be given (see paragraphs 10 to 14 below). which decision its application is directed: I would recall that the request made by the against the letter dated 12 January from the Director-General for Agriculture to the 8 — The letter of 15 November 1989 was addressed to an applicant or against the internal memo- official of the Commission's Legal Service (Annex 6(b) of randum (annexed thereto) of 11 January the application). The letter of 29 November 1989 was addressed to the Director-General of the Directorate- 1990 from the Director-General for General for Agriculture at the Commission (Annex 6(d]. The requests made therein were premature in the sense Personnel and Administration to the official that Weddel's request for a provisional hearing of concerned. 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 interna] memorandum from the Director-General I cannot share the Commission's view. for Personnel and Administration, R. Hay, to the officiai Article 38(l)(c) of the Rules of Procedure is in question, dated 11 January 1990, Annex 2(b) of the application. intended to enable the other party and the 10 — Letter from the Director-General for Agriculture in the Court to know sufficiently clearly what the Commission, dated 12 January 1990, Annex 2(a) of the application. application is directed against. It is evident
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from the application that the action for Commission, as contained in the letter to annulment is directed against the Weddel and in the internal memorandum Commission's refusal to authorize its official and annex thereto, is a direct reply to that to make a witness statement in the context request. Contrary to what the Commission of the abovementioned provisional hearing says, that decision is therefore addressed to of witnesses. The distinction drawn by the the applicant so that the applicant can bring Commission between the letter of 12 an action for annulment against it. 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 But even if the refusal decision were not 11 January 1990 in a letter of 12 January addressed to the applicant it must be 1990 in which express reference was made regarded as being of direct and individual to the abovementioned memorandum. concern to the applicant. The Arrondisse- Moreover, it appears from the defence that mentsrechtbank at The Hague granted the subject-matter of the present application Weddel's request to hold a provisional for annulment was also entirely clear to the hearing of witnesses including the official in Commission. 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 7. In accordance with the second paragraph likely to make it more difficult for it to of Article 173 of the EEC Treaty, any determine whether there are sufficient natural or legal person may institute grounds for bringing any such action. 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. The applicability of Article 19 of the Staff Regulations
As the applicant has rightly stated, the 8. Article 19 of the Staff Regulations, wording of Article 19 of the Staff Regu- quoted above, merely concerns matters of lations in no way precludes a request to which an official 'has knowledge by reason authorize an official to appear as a witness of his duties'. Accordingly, as Weddel from being made by a third party having an claims in its application, Article 19 of the interest. From the exchange of corre- Staff Regulations is not applicable in the spondence mentioned at paragraph 4 present case because the official was not to between the applicant and the Commission be heard concerning information of which it is evident that the applicant in the present he had knowledge by reason of his duties, case addressed such a request to the but concerning his own communications to Commission 11 and that the refusal by the the Produktschap. The Commission, on the other hand, takes the view that Article 19 of 11 — See the letters of 15 and 29 November 1989 already the Staff Regulations is applicable since that mentioned in footnote 8. Article must be interpreted as relating to all
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things done or omitted to be done by an with regard to information not covered by official in his official capacity, including the duty of secrecy, the appointing authority oral and written statements made within the can scarcely refuse permission to make institution or outside it. proper use of such information. It is difficult to imagine how use in judicial proceedings of that information (which an official may In its reply Weddel challenges the validity in principle divulge) may affect the interests of the maximalist interpretation of Article of the Community to such an extent that a 19 of the Staff Regulations advocated by the refusal of permission to make such use Commission. The applicant points out that thereof can be justified. I will come on to that Article must be interpreted in the light this question in the following paragraphs. 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 Is the refusal of permission to give evidence of the Staff Regulations merely concerns justified? 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 10. Once it is established that Article 19 is not already been disclosed to the public and applicable and the official concerned must is not of a confidential nature. Since the therefore obtain permission from the information provided by the official to the appointing authority in order to give Produktschap is not of a confidential evidence, the question arises whether the nature, such information, according to the refusal to grant such permission was applicant, does not fall within the terms of justified. Article 19 provides that permission Article 19 of the Staff Regulations and can be refused only where the interests of mention may properly be made of such the Communities so require and such refusal information without authorization. would not entail criminal consequences as far as the official is concerned.
9. In my view the scope of Article 19 as defined in the first sentence thereof cannot be interpreted as restrictively as the 11. In the contested decision the applicant proposes. The scope of Article 19 Commission gave as justification for its concerns 'information of which [an official] refusal that: 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 ' [ . . . ] since a case based on the same facts is and whereby the phrase 'has knowledge', in pending before the Court of Justice of the my view, in fact refers to all things done or European Communities (Weddel v omitted to be done, written or spoken, in Commission), the questions on which you the context of his duties. 12 It is the case that are asked to give evidence are there being replied to officially by the Commission, 12 — See above at para. 8. The other language versions confirm this interpretation. The French text for example states: through the intermediary of the authorized . . . des constatations qu'il a faites en raison de ses department (Legal Service, Agent of the fonctions; the Dutch text: . . . hetgeen hij in verband met zijn ambtsbezigheden heeft bevonden; the German text: Commission).' 13 . . . bei seiner amtlichen Tätigkeit 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.
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In its application Weddel states that the justified in the first place by the fact that the Commission did not found its refusal on the evidence of its official could jeopardize the 'interests of the Communities', as required proper functioning of the agricultural by Article 19 of the Staff Regulations. policy. The Commission points out that, if every official giving information to a national authority in the course of the implementation of the Common Agri- cultural Policy could subsequently be called In its order of 13 July 1990 in Case C-2/88 to account for it in national judicial Imm. (criminal proceedings against proceedings, the Commission would be Zwartveld and Others [1990] ECR 1-3365), compelled to alter its current practice based the Court declared that the Community on numerous informal contacts.
Such institutions in principle have a duty to informal contacts are nevertheless useful in cooperate sincerely with the national order to find a solution to the many judicial authorities. H It may be inferred practical problems which arise in the therefrom that the 'interests of the implementation of the agricultural policy. In Communities' which under Article 19 of the the absence thereof the proper functioning Staff Regulations may justify a refusal to of the Common Agricultural Policy might give permission to give evidence, can only be jeopardized. 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 It goes without saying that the proper func- before the Court in a related case, does not tioning of the Common Agricultural Policy make clear in what manner the refusal is amongst the vital interests of the might concern the vital interests of the Community. However I consider that in the Communities. 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 infor- The Commission seems to realize this, since mation given by him to the Produktschap. in its defence it is no longer relying so much He is only to be asked what information he on that ground of justification but puts provided. More important still is that in forward other grounds discussed below in accordance with the Court's consistent paragraphs 12 and 13.
The contested case-law (to which the Commission also decision was therefore insufficiently refers) information supplied by Commission reasoned and must be annulled on that officials to national authorities concerning ground. 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 12. In its defence the Commission states 15 — See for example the judgment of 16 November 1983 in that the refusal to give permission was Case 188/82 Thyssen v Commission [1983] ECR 3721, the judgment of 10 June 1982 in Case 217/81 Interagm v Commission [1988] ECR 2233 and the judgment of 27 14 — See para. 18. March 1980 Case 133/79 Sucrimex [1980] 1299.
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interpretation of a provision of Community Commission, and the Commission cannot law does not in the case of the official permit an individual official to be compelled concerned constitute a wrongful act, apart to give evidence involving him in the inter- from the exceptional instance. 16 National pretation of legal provisions. The first two agencies act upon their own responsibility of those grounds certainly do not concern even when they proceed on the basis of the vital interests of the Communities and information imparted to them by individual thus cannot be relied upon as justification Commission officials. I therefore fail to see for the refusal of permission. Moreover, it is how evidence given by the official in in the last analysis for the national court, in question as to the information given by him any proceedings on the merits, to determine to the Produktschap might compel the whether the evidence of the Commission Commission to alter current practice official can affect the applicant's situation. regarding cooperation between the With regard to the third ground it must be Commission and national agencies. 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.
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 infor- mation is almost by its nature intended to be 14. Finally, it must be recalled that in communicated to individuals and is accordance with Article 19 of the Staff therefore difficult to regard as being of a Regulations permission to give evidence confidential nature. 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 13. In its defence the Commission also provide grounds for granting permission submits that the refusal to grant permission owing to the risk of criminal proceedings was justified because the evidence of its against the official concerned. Since I have official does not alter the applicant's come to the conclusion that the refusal to situation, there has never been any direct grant permission in the present case cannot contact between the applicant and the be justified by a Community interest, there is no need for me to examine this second 16 — Judgment in Joined Cases 19, 20, 25 and 30/69 Richtz- Pansev Commission [1970] ECR 325, at paragraph 36. condition.
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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.
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