Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. In its judgment of 13 February 1979 in Case 85/76 (Hoffmann-La Roche v Commission of the European Communities [1979] ECR 461) the Court stated for the first time that by prohibiting the abuse of a dominant position within the market..., Article 86 (of the EEC Treaty) ... covers not only abuse which may directly prejudice consumers but also abuse which indirectly prejudices them by impairing the effective competitive structure as envisaged by Article 3 (f) ... . The Court thus recognized that the Swiss multinational's conduct in the market in vitamins for use in the pharmaceutical and food industries could adversely affect both competition and intra-Community trade and that it was therefore necessary to put an end to and penalize that conduct.

2. Acting upon the letter of 25 February 1973, Mr Schlieder, the Director-General of the Commission's Directorate-General for Competition (hereinafter referred to as DG IV) invited Stanley Adams to meet certain of his officials in order to discuss the questions which he had raised. At that meeting, which was held in Brussels on 9 April 1973, a relationship of frank cooperation developed between Adams and the Commission officials. Adams handed over certain Roche documents which the officials considered to be of limited interest. Nevertheless he assured them that he could provide other, more convincing documents and this he did on the following day (10 April 1973) after his return to Basle. Among the many papers which he sent were 14 internal administrative circulars which were headed Management Information. He sent two further batches on 15 April and 21 July 1973 containing many documents concerning Roche's commercial activity, including the photocopy of a letter which the President of Roche, Adolf Jann, had sent to the directors of all the subsidiaries. In addition, by the letter of 21 July Adams informed the Commission that he intended to leave Roche by the end of October 1973.

3. Other events of minor importance for the purposes of these proceedings took place after Adams's first visit to Berlaymont. I do not propose to cite them here in any precise order. In his application and his reply, for example, the applicant refers to various telephone conversations and subsequent meetings with Commission officials. The telephone conversations took place in the period preceding and immediately following his resignation from Roche, whilst the meetings occurred after he was released from the Swiss prisons. He mentions in addition various episodes which occurred at the time of his arrest, in the course of his interrogation and during his detention. In addition the role played during that period by the Commission and its interventions in favour of Adams are described. Finally, the applicant's account contains a section dedicated to the Italian chapter of his story. His experiences in Italy — it may be recalled — were not much more fortunate than in Switzerland, since his ambitious projects collapsed almost before they were off the ground, essentially for lack of funds, and he was forced to move to the United Kingdom in order to escape the civil and penal consequences of the failure of his business.

4. By the application in Case 145/83, Mr Adams asks the Court to declare that the Commission of the European Communities: (a) by disclosing on diverse occasions his identity as the informant in the investigation undertaken by it into the activities of Hoffmann-La Roche, committed a breach of the duty of confidentiality and thus caused his arrest, detention and conviction by the Swiss authorities; and (b) failed to fulfil its obligation to advise his lawyers on the possibility of petitioning the European Commission of Human Rights.

5. As regards the breach of a duty of confidentiality, the applicant claims that his relationship with the Commission was from the beginning confidential. In his view that is clear both from the wording of his first letter and the tenor of the discussions which he had with officials from DG IV during the meeting of 9 April 1973. If only for that reason the Commission was under a duty not to disclose his name. That duty, however, also had a twofold basis in law: on the one hand, Artile 214 of the EEC Treaty and Article 20 of Regulation No 17 of the Council of 6 February 1962; and on the other, the relevant principles in the laws of the Member States.

6. Although it defends itself first and foremost on the substance of the action brought by Adams, the Commission contends that that action founders on Article 43 of the Protocol on the Statute of the Court of Justice of the EEC. That article provides that: Proceedings against the Community in matters arising from noncontractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto. In its most recent decision on that provision the Court clarified a crucial point in regard to it by establishing that the period of limitation cannot begin before all the requirements governing the obligation to provide compensation for damage are satisfied and in particular before the damage to be made good has materialized (judgment of 27 January 1982 in Case 51/81 De Franceschi v Council and Commission [1982] ECR 117).

7. However, not all the matters which have been evoked in these proceedings and which are capable of establishing the noncontractual liability of the Commission were known to the applicant when the Basle judgment was delivered. In particular, as I have mentioned under point 3, he claims to have learned of the existence of the discussion on 8 November 1974 between Dr Alder and the Commission officials only from the defence which the Commission submitted in these proceedings. That assertion may not be entirely accurate. In the complaint laid by Roche, Alder referred to that meeting stating that he had arranged it in order to discover how the Commission had come into possession of the Management Information memoranda and the letter from Jann. He added that the officials did not clarify that matter for him and that when he asked a further question, intended to establish whether or not the informant was an employee of the company, the officials reserved the right to reply at a later date. However, as Alder stated in conclusion, on 6 December 1974 Mr Pappalardo informed him by telephone that the Commission did not intend to reply even to the second question and would no longer be prepared to discuss the origin of the documents.

8. In the application in Case 145/83, the Commission is charged by Adams with a second omission. He maintains that it did not inform him of the possibility of relying in his defence on the European Convention of Human Rights and thereby committed a breach of the obligation which it had assumed voluntarily to assist and advise his lawyers.

That claim is therefore unfounded.

9. By an application lodged at the Court Registry on 29 February 1984 in Case 53/84 the applicant asks the Court: (a) to order the Commission of the European Communities to pay damages for the injury suffered by him following its acts and omissions which led to his arrest and his conviction by the Swiss authorities; (b) to declare, that the Commission should have reported to the Joint Committee set up under the Free Trade Agreement concluded between the EEC and the Swiss Confederation (1972) the measures which were taken against him by the Swiss authorities and which were contrary to the rules of that agreement; and (c) to declare that the Commission should give notice to Switzerland of its intention to withdraw from the Free Trade Agreement if it is not successful, within a reasonable time, in convincing Switzerland to interpret correctly and respect international law as contained therein.

10. On the basis of the facts which it has been possible to establish in the course of these proceedings and in the light of the foregoing considerations I propose that the Court should:

1 Translated from the Italian.