Weddel & Co BV v Commission

I — Legal background to the dispute

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

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

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

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

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

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

II — Facts and procedure

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III — Forms of order sought by the parties

The applicant claims that the Court should:

The Commission contends that the Court should:

IV — Submissions and arguments of the parties

1. Admissibility

(a) The subject-matter of the dispute

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

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

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

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

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

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

(b) The addressee of the decision

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

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

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

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

2. Substance

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

1 Language of the case: Dutch.

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

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

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