Judgment of the Court of 18 February 1992.
Weddel & Co. BV v Commission of the European Communities.
Refusal by a Community institution to grant an official permission to give evidence before a national court.
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Weddel & Co. BV v Commission of the European Communities.
1. Officials - Rights and duties - Disclosure of official information - Giving evidence before a national court - Requirement in all cases of prior permission from the appointing authority
(Staff Regulations, Art. 19)
2. European Communities - Institutions - Obligations - Assistance to be given to national authorities to ensure compliance with Community law - Refusal to grant an official permission to give evidence - Unlawful refusal
1. It follows from Article 19 of the Staff Regulations that where an official is called to give evidence before a national court on the subject of information allegedly disclosed to third parties by him in his official capacity, he must obtain prior permission for this from his institution, and no distinction is to be made in this respect between information covered and information not covered by his duty of discretion.
2. Where the testimony of an official, required by a national court with the aim of ascertaining whether the official provided the national authorities responsible for implementation of the common agricultural policy with a particular interpretation of a rule, is not liable to affect the relations which the Commission' s services must have with national administrations, the Commission cannot refuse the permission referred to in Article 19 of the Staff Regulations.
In Case C-54/90,
Weddel & Co. BV, a company incorporated under Netherlands law and based in Rotterdam, represented by G. van der Wal, Advocaat with the right of audience before the Hoge Raad der Nederlanden, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,
Commission of the European Communities, initially represented by R. Barents and then by P. van Nuffel, members of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Roberto Hayder, a representative of its Legal Service, Wagner Centre, Kirchberg,
APPLICATION for annulment of the decision by the Commission to refuse to allow one of its officials to give evidence in national judicial proceedings,
composed of: O. Due, President, Sir Gordon Slynn, R. Joliet, P.J.G. Kapteyn (Presidents of Chambers), G.F. Mancini, C.N. Kakouris, G.C. Rodríguez Iglesias, M. Díez de Velasco and J.L. Murray, Judges,
Advocate General: W. Van Gerven,
Registrar: J.A. Pompe, Deputy Registrar,
having regard to the Report for the Hearing, as amended following the oral procedure,
after hearing oral argument from the parties at the hearing on 17 October 1991,
after hearing the Opinion of the Advocate General at the sitting on 28 November 1991,
gives the following
1 By application lodged at the Court Registry on 7 March 1990, Weddel & Co. BV brought an action under the second paragraph of Article 173 of the EEC Treaty for the annulment of the refusal by the Commission, notified to the applicant by letter of 12 January 1990, to allow one of its officials to give evidence in national judicial proceedings.
Background to the case
2 An award procedure was opened by Commission Regulation (EEC) No 2539/87 of 24 August 1987 concerning the quantity of high-quality beef and veal that could be imported from the United States of America and from Canada under the arrangements laid down in Council Regulation (EEC) No 3928/86 (Official Journal 1987 L 241, p. 6). Article 1 of that regulation provided that import licence applications could be submitted for a total quantity of 4 617 tonnes.
3 On 9 and 10 September 1987 the applicant submitted applications to the Produktschap voor Vee en Vlees (Cattle and Meat Board, hereinafter referred to as "the Produktschap"), the Netherlands agency responsible for issuing import certificates, for a total of 320 000 tonnes of beef.
4 After being notified by the Produktschap of the total quantity in respect of which applications had been lodged in the Netherlands, the Commission informed that agency on 15 September 1987 that, having regard to the circumstances and the wording of Regulation No 2539/87, no licence application should relate to a total quantity greater than the total quantity available at the time when the application was lodged.
5 The Commission subsequently decided, by Regulation (EEC) 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), that applications for licences would be met only to the extent of 0.2425% of the quantity requested and that applications for quantities in excess of the 4 617 tonnes available would be treated as having been made for that quantity only.
6 Because of that ceiling on applications, the applicant obtained an import licence for only 0.2425% of 4 617 tonnes and was thus authorized to import only 11.196 tonnes.
7 The applicant brought an action for annulment of Regulation No 2806/87, which was dismissed by the Court as unfounded on 6 November 1990 (judgment in Case C-354/87 Weddel v Commission  ECR I-3847).
8 The applicant also applied on 2 November 1989 to the Arrondissementsrechtbank te 's-Gravenhage (District Court, The Hague) for the provisional hearing of witnesses as provided for in Article 214 of the Netherlands Code of Civil Procedure, in order to assess its chances of succeeding in an action against the Produktschap for damages for the loss allegedly caused by the refusal of its applications for licences in excess of the available quantity. The applicant claimed that the Produktschap had assured it that there was no ceiling on applications and had thus induced it to submit applications in excess of the available quota. The Produktschap for its part stated that it had been assured informally by an official of the Commission that there was no ceiling.
9 In a letter of 29 November 1989 the applicant requested the Commission to give permission to the official in question, in accordance with Article 19 of the Staff Regulations of Officials of the European Communities ("the Staff Regulations"), to give evidence at the provisional hearing on the information allegedly given by him to the Produktschap.
10 The applicant informed the Commission in a letter of 14 December 1989 that the national court had ordered a provisional hearing of witnesses, including the official in question, and that the applicant intended to serve a summons on the official to appear at that hearing.
11 By an internal memorandum to the official, dated 11 January 1990, the Commission refused him permission to give evidence, on the ground that:
"...since a case based on the same facts is pending before the Court of Justice of the European Communities (Weddel v Commission), the questions on which you are asked to give evidence are there being replied to officially by the Commission, through the intermediary of the authorized department (Legal Service, Agent of the Commission)".
12 The Commission informed the applicant of this refusal in a letter of 12 January 1990, enclosing a copy of the above internal memorandum.
13 On 16 January 1990 the competent Rechter-Commissaris heard four other witnesses who had been summoned. They asserted that the Commission official, in answer to various questions of the Produktschap, had before the time-limit for submitting licence applications expressly stated on several occasions without qualification that the quantities applied for could exceed the quantities available.
14 Reference is made to the Report for the Hearing for a fuller account of the legal background, the facts of the case, the course of the procedure and the pleas and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
Admissibility of the application
15 The Commission considers that the application is inadmissible since it does not comply with the requirement under Article 38(1)(c) of the Court' s Rules of Procedure to state the subject-matter of the dispute. It does not specify whether it was the memorandum sent to the official refusing permission to testify or the letter sent to the applicant which constituted the contested decision.
16 This objection must be dismissed. The application is directed, as it states itself, against the decision of 12 January 1990. The Commission was thus able without difficulty to identify the subject-matter of the dispute as the decision by which the Commission refused to grant the request made to it by the applicant to permit its official to give evidence.
17 With reference to the requirements of the second paragraph of Article 173 of the EEC Treaty, it must be held first that the applicant was the addressee of the decision of 12 January 1990 containing the refusal, which was notified to it by a letter of the same date following its request of 29 November 1989, and secondly that the decision in issue affected the applicant' s legal position in so far as its effect was to hinder the examination, in connection with the provisional hearing of witnesses, of facts which might have proved relevant to the applicant' s decision whether to bring an action for damages against the Produktschap.
18 It follows from the above that the application is admissible.
The principal plea in law
19 In its principal plea the applicant argues that the Commission is wrong in maintaining that Article 19 of the Staff Regulations applies in the present case. That provision should in fact be interpreted in the light of the duty of discretion imposed on officials by Article 214 of the Treaty and Article 17 of the Staff Regulations. That duty prohibits officials from disclosing confidential information obtained from third parties or disclosing to unauthorized persons any document or information not already made public. Article 19 of the Staff Regulations applies only to information covered by the duty of discretion. In the context of the common agricultural policy numerous questions might be put by intervention agencies to officials of the Commission and those officials could answer them without breaching their duty of discretion. Consequently, the information or replies thus given would not be subject to the requirement of permission referred to in Article 19 of the Staff Regulations.
20 This restrictive interpretation does not follow from the wording of the said Article 19 of the Staff Regulations. On the contrary, the wording of that provision in its various language versions shows that where an official, as in the present case, is called to give evidence before a national court on the subject of information allegedly disclosed to third parties by him in his official capacity, he must obtain prior permission for this from his institution, and no distinction is to be made in this respect between information covered and information not covered by his duty of discretion.
The alternative plea in law
21 In the event that Article 19 of the Staff Regulations is applicable, the applicant puts forward the alternative argument that the Commission has not demonstrated that the interests of the Community, within the meaning of that provision, require the official to be refused permission to give evidence. The applicant also argues that permission could not be refused, since the refusal to testify could have entailed criminal or similar consequences for the official in question.
22 On the first point, it should be noted that the Commission' s only argument relating to the interests of the Community is the argument concerning the proper management of the common organization of markets.
23 It must be observed in this respect that the sole aim of the testimony sought was to ascertain whether the official had provided the Produktschap with a particular interpretation of Community rules on agriculture.
24 Such testimony, in the circumstances of the case, is not liable to affect the relations which the Commission' s services must have with national administrations, and is consequently not liable to compromise the proper management of the common organization of markets.
25 The Commission was therefore wrong in considering that the interests of the Community prevented permission being given to its official to give evidence, as sought by the applicant.
26 The contested decision refusing permission must therefore be annulled, without it being necessary to establish that the refusal would not entail criminal consequences as far as the official was concerned, as is also required by Article 19 of the Staff Regulations.
Decision on costs
27 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Commission has been unsuccessful, it must be ordered to pay the costs.
On those grounds,
1. Annuls the Commission' s decision of 12 January 1990 refusing to permit one of its officials to give evidence before the Arrondissementsrechtbank te 's-Gravenhage;
2. Orders the Commission to pay the costs.