Opinion of Mr Advocate General Van Gerven
Mr President,
Members of the Court,
1. By this application Weddel & Co. BV is requesting the Court to annul a Commission decision notified to it by letter of 12 January 1990 concerning the refusal to permit a Commission official to give evidence in national judicial proceedings.
Facts
2. The facts of the present case are partly known to the Court from Case C-354/87 Weddel & Co. BV v Commission, in which judgment was given on 6 November 1990. Article 1 of Commission Regulation (EEC) No 2539/87 of 24 August 1987 provided that:
3. In November 1989 Weddel, in addition to the application lodged with the Court, brought proceedings for damages against the Produktschap before the Arrondissementsrechtbank (District Court), in the Hague.
4. On 23 January 1990 the official concerned was summonsed to give evidence as a witness before the Rechter-commissaris as to information given by him to the Produktschap. Article 19 of the Staff Regulations of Officials of the European Communities (hereinafter referred to as the Staff Regulations) however provides that:
The admissibility of the application for annulment
5. The Commission submits that Weddel's application for annulment is inadmissible, firstly since the subject-matter of the dispute is not stated sufficiently clearly (see paragraph 6 below), and secondly since the applicant is not the addressee of the contested decision, and is also not directly and individually concerned by that decision (see paragraph 7 below).
6. Article 38(l)(c) of the Rules of Procedure provide that the application bringing a matter before the Court must state inter alia the subject-matter of the dispute. As has already been mentioned, Weddel seeks the annulment of the decision of the Commission notified to it by letter of 12 January 1990. The Commission alleges that it is not or not sufficiently clear from the application lodged by Weddel against which decision its application is directed: against the letter dated 12 January from the Director-General for Agriculture to the applicant or against the internal memorandum (annexed thereto) of 11 January 1990 from the Director-General for Personnel and Administration to the official concerned.
7. In accordance with the second paragraph of Article 173 of the EEC Treaty, any natural or legal person may institute 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
8. Article 19 of the Staff Regulations, quoted above, merely concerns matters of which an official has knowledge by reason of his duties. Accordingly, as Weddel claims in its application, Article 19 of the Staff Regulations is not applicable in the present case because the official was not to be heard concerning information of which he had knowledge by reason of his duties, but concerning his own communications to the Produktschap. The Commission, on the other hand, takes the view that Article 19 of the Staff Regulations is applicable since that Article must be interpreted as relating to all things done or omitted to be done by an official in his official capacity, including oral and written statements made within the institution or outside it.
9. In my view the scope of Article 19 as defined in the first sentence thereof cannot be interpreted as restrictively as the applicant proposes. The scope of Article 19 concerns information of which [an official] 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 and whereby the phrase has knowledge, in my view, in fact refers to all things done or omitted to be done, written or spoken, in the context of his duties. It is the case that with regard to information not covered by the duty of secrecy, the appointing authority can scarcely refuse permission to make proper use of such information. It is difficult to imagine how use in judicial proceedings of that information (which an official may in principle divulge) may affect the interests of the Community to such an extent that a refusal of permission to make such use thereof can be justified. I will come on to this question in the following paragraphs.
Is the refusal of permission to give evidence justified?
10. Once it is established that Article 19 is applicable and the official concerned must therefore obtain permission from the appointing authority in order to give evidence, the question arises whether the refusal to grant such permission was justified. Article 19 provides that permission can 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.
11. In the contested decision the Commission gave as justification for its refusal that:
12. In its defence the Commission states that the refusal to give permission was justified in the first place by the fact that the evidence of its official could jeopardize the proper functioning of the agricultural policy. The Commission points out that, if every official giving information to a national authority in the course of the implementation of the Common Agricultural Policy could subsequently be called to account for it in national judicial proceedings, the Commission would be compelled to alter its current practice based on numerous informal contacts. Such informal contacts are nevertheless useful in order to find a solution to the many practical problems which arise in the implementation of the agricultural policy. In the absence thereof the proper functioning of the Common Agricultural Policy might be jeopardized.
13. In its defence the Commission also submits that the refusal to grant permission was justified because the evidence of its official does not alter the applicant's situation, there has never been any direct contact between the applicant and the Commission, and the Commission cannot permit an individual official to be compelled to give evidence involving him in the interpretation of legal provisions. The first two of those grounds certainly do not concern the vital interests of the Communities and thus cannot be relied upon as justification for the refusal of permission. Moreover, it is in the last analysis for the national court, in any proceedings on the merits, to determine whether the evidence of the Commission official can affect the applicant's situation. With regard to the third ground it must be 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.
14. Finally, it must be recalled that in accordance with Article 19 of the Staff Regulations permission to give evidence 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 provide grounds for granting permission owing to the risk of criminal proceedings against the official concerned. Since I have come to the conclusion that the refusal to grant permission in the present case cannot be justified by a Community interest, there is no need for me to examine this second condition.
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.
1 Original language: Dutch.
2 OJ 1987 L 241, p. 6.
3 OJ 1987 L 26, p. 59.
4 Judgment of 6 November 1990 in Case C-354/87 Weddel & Co. BV v Commission [1990] ECR I-3847, at paras. 35 and 36. The Court held that neither the principle of equal treatment nor the principle of legal certainty had been breached. The Court considered inter dia that the contested ceiling was not unlawful because it was not a new rule but mereh/clarified and was a necessary consequence of the preexisting Community rules.
5 See the application to the Arrondissementsrechtbank for the holding of a provisional hearing of witnesses, point 1, Annex 3(b) of the application.
6 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 application to the Arrondissementsrechtbank for a provisional hearing of witnesses.
7 See Annex 3(c) of the application with regard to the decision by the Arrondissementsrechtbank.
8 P. 7 of the application and the minutes of 16 January 1990 of the hearing of witnesses, annex 4 of the application, see principally p. 7, evidence of the head of the EEC department of the Produktschap, and also pp. 10-11, the evidence of the head of the Principal Department for Meat and Poultry Products in the Directorate for market organization questions.
9 The letter of 15 November 1989 was addressed to an official of the Commission's Legal Service (Annex 6(b) of the application). The letter of 29 November 1989 was addressed to the Director-General of the Directorate-General for Agriculture at the Commission (Annex 6(d]. The requests made therein were premature in the sense that Weddel's request for a provisional hearing of 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.
10 See the interna] memorandum from the Director-General for Personnel and Administration, R. Hay, to the officiai in question, dated 11 January 1990, Annex 2(b) of the application.
11 Letter from the Director-General for Agriculture in the Commission, dated 12 January 1990, Annex 2(a) of the application.
12 See the letters of 15 and 29 November 1989 already mentioned in footnote 8.
13 See above at para. 8. The other language versions confirm this interpretation. The French text for example states: ... des constatations qu'il a faites en raison de ses fonctions; the Dutch text: ... hetgeen hij in verband met zijn ambtsbezigheden heeft bevonden; the German text: ... bei seiner amtlichen Tätigkeit bekannt gewordenen Tatsachen and the Italian text: ... fatti di cui sia venuto a conoscenza a causa del suo ufficio.
14 See Annex 2b of the application.
15 See para. 18.
16 See for example the judgment of 16 November 1983 in 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 March 1980 Case 133/79 Sucrimex [1980] 1299.
17 Judgment in Joined Cases 19, 20, 25 and 30/69 Richtz-Pansev Commission [1970] ECR 325, at paragraph 36.