1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 18 JULY 1983 STANLEY GEORGE ADAMS BROUGHT AN ACTION UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY AGAINST THE COMMISSION OF THE EUROPEAN COMMUNITIES FOR COMPENSATION FOR THE DAMAGE WHICH HE CLAIMS TO HAVE SUFFERED AS A RESULT OF WRONGFUL ACTS OR OMISSIONS ON THE PART OF THE COMMISSION , OR OF ITS SERVANTS IN THE PERFORMANCE OF THEIR DUTIES , WHICH LED INTER ALIA TO HIS ARREST , DETENTION AND CONVICTION IN SWITZERLAND .
2 THE ACTS AND OMISSIONS WHICH , ACCORDING TO THE APPLICANT , GAVE RISE TO THE DAMAGE WHICH HE CLAIMS TO HAVE SUFFERED ARE MORE PARTICULARLY THE FOLLOWING :
( I ) THE DISCLOSURE ON VARIOUS OCCASIONS , IN BREACH OF CONFIDENCE , OF INFORMATION AND DOCUMENTS WHICH MADE IT POSSIBLE TO IDENTIFY THE APPLICANT AS THE SOURCE OF INFORMATION WHICH LED THE COMMISSION TO IMPOSE A FINE ON THE APPLICANT ' S FORMER EMPLOYER , THE SWISS COMPANY HOFFMANN-LA ROCHE , FOR CERTAIN ANTI-COMPETITIVE PRACTICES ;
( II)THE FAILURE TO ADVISE THE APPLICANT THAT HE HAD THE RIGHT TO PETITION THE EUROPEAN COMMISSION OF HUMAN RIGHTS IN RESPECT OF THE CRIMINAL PROCEEDINGS INSTITUTED AGAINST HIM BY THE SWISS AUTHORITIES AS A RESULT OF HIS ACTIVITIES AS THE COMMISSION ' S INFORMANT .
IN HIS REPLY THE APPLICANT COMPLAINS IN ADDITION THAT THE COMMISSION FAILED TO WARN HIM OF THE RISK THAT HE WOULD RUN IF HE RETURNED TO SWITZERLAND .
3 WITH THE AGREEMENT OF THE PARTIES THE COURT DECIDED THAT THE SCOPE OF THE PROCEEDINGS SHOULD FOR THE TIME BEING BE LIMITED TO THE QUESTIONS WHETHER THERE IS A BASIS FOR LIABILITY AND WHETHER THE APPLICANT ' S ACTION IS TIME-BARRED .
THE EVENTS WHICH GAVE RISE TO THE DISPUTE
4 THE APPLICANT , WHO WAS AT THE TIME EMPLOYED BY THE SWISS COMPANY HOFFMANN-LA ROCHE & CO . AG ( HEREINAFTER REFERRED TO AS ' ROCHE ' ), BASLE , SENT A LETTER ON 25 FEBRUARY 1973 TO THE COMMISSIONER FOR COMPETITION IN WHICH HE DESCRIBED A NUMBER OF ANTI-COMPETITIVE PRACTICES ENGAGED IN BY ROCHE . IN THAT LETTER , WHICH WAS HEADED ' PERSONAL AND CONFIDENTIAL ' , THE APPLICANT STATED THAT HE WAS STILL WORKING FOR ROCHE BUT THAT HE PLANNED TO LEAVE AROUND JULY 1973 AND TO START HIS OWN MEAT BUSINESS IN ITALY , NEAR ROME . HE CONCLUDED HIS LETTER AS FOLLOWS :
' I REQUEST YOU NOT TO LET MY NAME BE CONNECTED WITH THIS MATTER . HOWEVER , I REMAIN AT YOUR ENTIRE DISPOSAL FOR FURTHER INFORMATION , AS WELL AS DOCUMENTARY EVIDENCE ABOUT EVERY POINT WHICH I HAVE RAISED IN THIS LETTER . FURTHERMORE , I AM PREPARED TO DISCUSS ANY POINT WITH YOUR ASSISTANTS OR YOURSELF AT ANY TIME , AND IF NECESSARY I AM PREPARED TO FLY TO BELGIUM OR ROME FOR THIS PURPOSE . ADDITIONALLY , AFTER I LEAVE ROCHE AROUND JULY 1973 I WOULD BE PREPARED EVEN TO APPEAR BEFORE ANY COURT TO GIVE SWORN EVIDENCE ON MY STATEMENTS . I TRUST TO HEAR FROM YOU SOON TO KNOW IN WHAT DIRECTION I CAN BE OF FURTHER HELP . . . ' .
5 FOLLOWING A REPLY DATED 26 MARCH 1973 FROM MR SCHLIEDER , THEN DIRECTOR-GENERAL OF THE COMMISSION ' S DIRECTORATE-GENERAL FOR COMPETITION ( DG IV ), THE APPLICANT HAD AN INTERVIEW IN BRUSSELS ON 9 APRIL 1983 WITH TWO COMMISSION OFFICIALS , MR CARISI AND MR RIHOUX . IN THE COURSE OF THAT INTERVIEW , HE SUPPLIED THE COMMISSION WITH CERTAIN ADDITIONAL INFORMATION CONCERNING ROCHE ' S ACTIVITIES . MOREOVER , IN APRIL AND JULY 1973 THE APPLICANT SENT THE COMMISSION PHOTOCOPIES OF A CONSIDERABLE NUMBER OF INTERNAL DOCUMENTS ISSUED BY ROCHE , INCLUDING 14 ' MANAGEMENT INFORMATION ' MEMORANDA AND A LETTER TO THE DIRECTORS OF ROCHE FROM THE COMPANY ' S PRESIDENT .
6 IN A LETTER DATED 21 JULY 1973 THE APPLICANT INFORMED THE COMMISSION THAT HE WOULD BE STAYING WITH ROCHE UNTIL THE END OF OCTOBER 1973 . HE DID IN FACT LEAVE ROCHE ON 31 OCTOBER 1973 AND ON 1 APRIL 1974 HE TOOK UP RESIDENCE WITH HIS WIFE AND CHILDREN IN ITALY .
7 SUBSEQUENTLY THE COMMISSION COMMENCED AN INVESTIGATION INTO ROCHE ' S ACTIVITIES IN THE AREAS WHICH THE APPLICANT HAD DESCRIBED TO IT . AS PART OF THAT INVESTIGATION COMMISSION OFFICIALS , AMONG THEM MR RIHOUX AND MR PAPPALARDO , VISITED THE OFFICES OF ROCHE ' S SUBSIDIARIES IN PARIS AND IN BRUSSELS ON 22 AND 29 OCTOBER 1974 AND ATTEMPTED TO OBTAIN COPIES OF THE DOCUMENTS SUPPLIED TO THE COMMISSION BY THE APPLICANT . AS THE ROCHE REPRESENTATIVES DENIED ANY KNOWLEDGE OF THOSE DOCUMENTS , THE COMMISSION OFFICIALS FINALLY HANDED OVER EDITED COPIES OF THE ' MANAGEMENT INFORMATION ' MEMORANDA IN QUESTION AND THE LETTER TO THE ROCHE DIRECTORS FROM THEIR PRESIDENT . BEFORE DOING SO THEY COVERED UP CERTAIN DETAILS AND HANDWRITTEN NOTES WHICH THEY THOUGHT MIGHT INDICATE THE SPECIFIC SOURCE OF THE DOCUMENTS COPIED . IN RETURN THE COMMISSION OFFICIALS RECEIVED CONFIRMATION THAT THE DOCUMENTS WERE AUTHENTIC .
8 ON 9 JUNE 1976 THE COMMISSION ADOPTED DECISION 76/642/EEC RELATING TO A PROCEEDING UNDER ARTICLE 86 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY ( OFFICIAL JOURNAL 1976 , L 223 , P . 27 ), IN WHICH THE COMMISSION FOUND THAT ROCHE HAD ABUSED ITS DOMINANT POSITION IN THE MARKET FOR BULK VITAMINS AND IMPOSED A FINE OF 300 000 UNITS OF ACCOUNT ON THAT COMPANY . THAT DECISION WAS CONFIRMED IN ALL ESSENTIAL RESPECTS BY THE COURT ' S JUDGMENT OF 13 FEBRUARY 1979 ( CASE 85/76 HOFFMANN-LA ROCHE V COMMISSION ( 1979 ) ECR 461 ).
9 IN THE MEANTIME , ON 8 NOVEMBER 1974 , DR ALDER , A SWISS LAWYER ACTING ON BEHALF OF ROCHE , VISITED THE COMMISSION IN ORDER TO DISCOVER HOW IT HAD COME INTO POSSESSION OF THE DOCUMENTS IN QUESTION . ON THAT OCCASION DR ALDER INTIMATED THAT IF THE COMMISSION PROVIDED INFORMATION AS TO THE INFORMANT ' S IDENTITY , ROCHE WOULD BE WILLING TO PROVIDE THE NECESSARY DATA FOR THE COMMISSION ' S INVESTIGATION AND , IN ADDITION , WOULD NOT INSTITUTE CRIMINAL PROCEEDINGS AGAINST THE INFORMANT , A STEP WHICH IT WAS OTHERWISE PROPOSING TO TAKE ON THE BASIS OF ARTICLE 273 OF THE SWISS PENAL CODE WHICH CONCERNS ECONOMIC ESPIONAGE IN THE FORM OF THE DISCLOSURE OF BUSINESS INFORMATION . ACCORDING TO THE COMMISSION , THE OFFICIALS WHO TOOK PART IN THE MEETING FINALLY ' AGREED THAT THEY WOULD CONSIDER INFORMING DR ALDER WHETHER THE PERSON WHO HAD PASSED THE DOCUMENTS TO THE COMMISSION WAS A ROCHE EMPLOYEE ' . HOWEVER , WHEN MR SCHLIEDER WAS INFORMED OF DR ALDER ' S PROPOSAL HE GAVE INSTRUCTIONS THAT IN NO CIRCUMSTANCES WOULD THE COMMISSION DEPART FROM ITS GENERAL PRACTICE OF NOT DIVULGING THE IDENTITY OF ITS INFORMANTS . ACCORDINGLY , ON 6 DECEMBER 1974 DR ALDER WAS INFORMED THAT THE COMMISSION HAD NO INTENTION OF DISCUSSING THE ORIGIN OF THE DOCUMENTS IN ITS POSSESSION .
10 BY A LETTER DATED 18 DECEMBER 1974 , ADDRESSED TO THE PUBLIC PROSECUTOR ' S OFFICE , BERNE , DR ALDER , ON BEHALF OF ROCHE , LAID A COMPLAINT AGAINST A PERSON OR PERSONS UNKNOWN FOR ECONOMIC ESPIONAGE WITHIN THE MEANING OF THE ABOVEMENTIONED ARTICLE 273 OF THE SWISS PENAL CODE . ON THE BASIS IN PARTICULAR OF THE COPIES OF THE DOCUMENTS HANDED OVER BY THE COMMISSION OFFICIALS TO THE ROCHE EMPLOYEES IN OCTOBER 1974 , DR ALDER DREW THE CONCLUSION THAT THE APPLICANT WAS THE MAIN SUSPECT .
11 ON 31 DECEMBER 1974 , THE APPLICANT WAS ARRESTED BY THE SWISS AUTHORITIES AS HE CROSSED THE BORDER FROM ITALY WITH HIS FAMILY . ACCORDING TO THE POLICE RECORD OF THE INTERROGATIONS WHICH TOOK PLACE ON 31 DECEMBER 1974 AND 1 JANUARY 1975 , THE APPLICANT ACKNOWLEDGED THAT HE WAS THE COMMISSION ' S INFORMANT AND THAT IT WAS ' CERTAINLY WITHIN THE BOUNDS OF POSSIBILITY ' THAT HE HAD GIVEN THE COMMISSION THE DOCUMENTS IN QUESTION . ON 1 JANUARY 1975 THE APPLICANT WAS CHARGED WITH ECONOMIC ESPIONAGE CONTRARY TO ARTICLE 273 OF THE SWISS PENAL CODE . IN THE COURSE OF SUBSEQUENT INTERROGATIONS HE CLAIMED THAT HE HAD GIVEN THE COMMISSION INFORMATION ONLY VERBALLY AND THAT THE RECORD OF 31 DECEMBER 1974 AND 1 JANUARY 1975 DID NOT PROPERLY REFLECT WHAT HE HAD SAID .
12 WHILE HE WAS IN PRISON , THE APPLICANT WAS HELD IN SOLITARY CONFINEMENT AND HE WAS NOT ALLOWED TO COMMUNICATE WITH HIS FAMILY . HIS WIFE WAS ALSO INTERROGATED BY THE SWISS POLICE AND ON 10 JANUARY 1975 SHE COMMITTED SUICIDE . ON 25 JANUARY AN OFFICIAL OF THE COMMISSION RECEIVED AN UNSIGNED LETTER INFORMING HIM OF THE APPLICANT ' S ARREST AND ASKING THE COMMISSION TO INTERVENE IN HIS FAVOUR .
13 AT THE BEGINNING OF FEBRUARY 1975 DR ALDER HAD A TELEPHONE CONVERSATION WITH MR SCHLIEDER , IN THE COURSE OF WHICH THE LATTER CONFIRMED THAT THE APPLICANT WAS THE COMMISSION ' S INFORMANT . THERE IS HOWEVER SOME DISPUTE AS TO WHETHER MR SCHLIEDER CONFIRMED THAT THE APPLICANT WAS THE PERSON WHO HAD SUPPLIED THE DOCUMENTS . IN ANY EVENT , ON 14 FEBRUARY 1975 A POLICE OFFICER INFORMED DR PORTMANN , A COLLEAGUE OF DR BOLLAG , THE SWISS LAWYER RETAINED BY THE APPLICANT , THAT A HIGH-RANKING OFFICIAL OF THE COMMISSION HAD NAMED THE APPLICANT AS THE PERSON WHO HAD SUPPLIED THE DOCUMENTS AND AS THE COMMISSION ' S INFORMANT . DR PORTMANN IMMEDIATELY INFORMED THE APPLICANT OF THIS .
14 ON 21 MARCH 1975 THE APPLICANT WAS RELEASED ON BAIL OF SFR 25 000 . THE COMMISSION SUBSEQUENTLY REIMBURSED THAT SUM AND IN ADDITION PAID THE FEES OF THE APPLICANT ' S LAWYERS IN CONNECTION WITH THE CRIMINAL PROCEEDINGS .
15 ON 1 JULY 1976 THE STRAFGERICHT BASEL-STADT ( CRIMINAL COURT , BASLE ) FOUND THE APPLICANT GUILTY , INTER ALIA , OF AN OFFENCE AGAINST ARTICLE 273 OF THE SWISS PENAL CODE AND SENTENCED HIM IN ABSENTIA TO ONE YEAR ' S IMPRISONMENT ( SUSPENDED ). IT IS CLEAR FROM THE TEXT OF THE JUDGMENT , WHICH WAS DRAFTED IN GERMAN , THAT IN THE COURSE OF THE VISITS OF THE COMMISSION OFFICIALS TO THE ROCHE SUBSIDIARIES IN OCTOBER 1974 , THE OFFICIALS HAD HANDED OVER TO THE ROCHE EMPLOYEES PHOTOCOPIES OF DOCUMENTS SUPPLIED BY THE APPLICANT TO THE COMMISSION . IN ADDITION , IT IS POINTED OUT IN THE JUDGMENT THAT THE APPLICANT ADMITTED HAVING INFORMED THE COMMISSION OFFICIALS ORALLY OF THE ACTIVITIES OF ROCHE WHICH , IN HIS VIEW , CONSTITUTED ANTI-COMPETITIVE SCHEMES . FINALLY , THE JUDGMENT INDICATED THAT THE APPLICANT ' S IDENTITY AS THE COMMISSION ' S INFORMANT ALSO EMERGED FROM THE TELEPHONE CALL FROM MR SCHLIEDER TO DR ALDER .
16 ON 27 SEPTEMBER 1977 THE APPELLATIONSGERICHT BASEL-STADT ( COURT OF APPEAL FOR THE CANTON OF BASEL-STADT ) DISMISSED THE APPLICANT ' S APPEAL . THAT JUDGMENT STATED , INTER ALIA , THAT IN THE COURSE OF THEIR VISIT TO THE ROCHE ' S FRENCH SUBSIDIARY , THE COMMISSION OFFICIALS HAD SHOWN THE DOCUMENTS IN QUESTION TO THE DIRECTOR OF THE SUBSIDIARY , WHO HAD TAKEN COPIES OF THEM . ON 6 JANUARY 1978 THE COMMISSION SENT A LETTER TO THE APPLICANT ENCLOSING AN ENGLISH TRANSLATION OF THAT JUDGMENT .
17 THE APPEALS BROUGHT BY THE APPLICANT BEFORE THE BUNDESGERICHT ( SWISS FEDERAL SUPREME COURT ) AND AN APPLICATION TO REOPEN THE PROCEEDINGS WERE SUBSEQUENTLY DISMISSED .
18 IN FEBRUARY 1979 THE APPLICANT DISCHARGED HIS LAWYER , DR BOLLAG , AND RETAINED DR DIEFENBACHER , OF BERNE . BY A LETTER OF 18 AUGUST 1980 DR DIEFENBACHER INFORMED THE COMMISSION THAT HE HAD COME INTO POSSESSION ' OF EVIDENCE PROVING IN A SINGULAR WAY THE DIRECT RESPONSIBILITY OF THE EEC COMMISSION FOR MR ADAMS ' MOST LAMENTABLE FATE ' .
19 FINALLY , ON 28 MAY 1982 THE APPLICANT LODGED A PETITION , IN WHICH HE LAID A COMPLAINT AGAINST SWITZERLAND , WITH THE EUROPEAN COMMISSION OF HUMAN RIGHTS . IN THAT PETITION HE ALLEGED THAT THE CRIMINAL PROCEEDINGS INSTITUTED AGAINST HIM BY THE SWISS AUTHORITIES HAD BEEN CONDUCTED IN BREACH OF ARTICLES 6 AND 10 OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS OF 4 NOVEMBER 1950 . BY A DECISION OF 9 MAY 1983 THE EUROPEAN COMMISSION OF HUMAN RIGHTS REJECTED THE PETITION AS INADMISSIBLE ON THE GROUND THAT IT WAS OUT OF TIME .
THE HEARING BEFORE THE COURT
20 IN THE COURSE OF THE PROCEEDINGS THE COURT ( SECOND CHAMBER ) HEARD THE APPLICANT AND TOOK EVIDENCE FROM DR PORTMANN , HIS FORMER LAWYER , AND VARIOUS FORMER AND PRESENT COMMISSION OFFICIALS .
21 AT THAT HEARING THE APPLICANT EXPLAINED INTER ALIA THAT BY HIS LETTER OF 23 FEBRUARY 1973 HE HAD SOUGHT TO IMPOSE ON THE COMMISSION AN OBLIGATION OF CONFIDENTIALITY WHICH WAS CONTINUOUS AND WITHOUT ANY DATE OF EXPIRY . ALTHOUGH HE HAD STATED IN THAT LETTER THAT AFTER HE HAD LEFT ROCHE HE WOULD BE PREPARED TO APPEAR BEFORE ANY COURT , HE DID NOT THINK THAT IT WOULD BE NECESSARY FOR HIM TO DO SO AND , EVEN IF IT WERE , HE CONSIDERED THAT HIS IDENTITY COULD BE KEPT SECRET . IN ADDITION , MR CARISI AND MR RIHOUX PROMISED THAT THE APPLICANT ' S NAME WOULD NOT BE MENTIONED IN THE COURSE OF THE INVESTIGATION . THE APPLICANT BELIEVES THAT HE DID NOT EXPRESSLY STATE THAT THE DOCUMENTS SENT TO THE COMMISSION WERE NOT TO BE SHOWN TO THIRD PARTIES , OR THAT , TAKEN TOGETHER , THEY MIGHT REVEAL TO ROCHE THE DIVISION FROM WHICH THEY CAME , BECAUSE HE DID NOT FOR A MOMENT IMAGINE THAT THE COMMISSION WOULD USE THEM OUTSIDE THE INSTITUTION . NOR DID HE ASK TO BE KEPT INFORMED ABOUT THE PROGRESS OF THE INVESTIGATION OF ROCHE . IT WOULD , HOWEVER , HAVE BEEN POSSIBLE FOR THE COMMISSION TO KEEP HIM SO INFORMED , BECAUSE , AS A RESULT OF THE LETTER OF 25 FEBRUARY 1973 , IT WAS ALREADY AWARE OF HIS PLAN TO SET UP HOME IN ITALY AND , IN THE COURSE OF THE MEETING WITH MR CARISI AND MR RIHOUX IN APRIL 1973 , THE APPLICANT HAD STATED THAT HE WAS GOING TO LIVE IN THE SMALL TOWN OF LATINA .
22 MR SCHLIEDER STATED INTER ALIA THAT IT HAD BEEN CLEAR TO THE COMMISSION THAT THE INVESTIGATION OF ROCHE WOULD HAVE TO WAIT IN ANY EVENT UNTIL THE APPLICANT HAD LEFT THE COMPANY . THE NEED TO PROTECT HIM AFTER HIS DEPARTURE WAS NOT DISCUSSED BECAUSE NO ONE SERIOUSLY THOUGHT THAT THERE WAS A POSSIBILITY THAT CRIMINAL PROCEEDINGS MIGHT BE INSTITUTED AGAINST HIM . MR SCHLIEDER DID NOT GIVE INSTRUCTIONS FOR THE USE OF THE DOCUMENTS PASSED BY THE APPLICANT TO THE COMMISSION . EVEN AFTER DR ALDER ' S VISIT OF 8 NOVEMBER 1974 , NO ONE AT THE COMMISSION BELIEVED IN THE POSSIBILITY THAT CRIMINAL PROCEEDINGS MIGHT BE INSTITUTED AGAINST THE APPLICANT . DR ALDER ' S THREATS WERE THEREFORE MERELY REGARDED AS A TRICK FOR THE PURPOSE OF OBTAINING THE INFORMANT ' S NAME . THAT WAS WHY THE COMMISSION DID NOT CONSIDER IT NECESSARY TO INFORM THE APPLICANT OF THOSE THREATS . FURTHERMORE IT WAS CLEAR FROM A LETTER FROM THE APPLICANT THAT HE HAD LEFT ROCHE , AND THEREFORE SWITZERLAND , TO SET UP HOME IN ITALY . FINALLY , MR SCHLIEDER DID NOT REMEMBER HAVING HAD A TELEPHONE CONVERSATION WITH DR ALDER AT THE BEGINNING OF FEBRUARY 1975 . HE STATED , HOWEVER , THAT AFTER THE COMMISSION HAD RECEIVED THE ANONYMOUS LETTER INFORMING IT OF THE APPLICANT ' S ARREST , IT WAS CLEAR THAT IT HAD TO GIVE THE APPLICANT ITS FORMAL SUPPORT AND HELP HIM .
23 MR RIHOUX STATED INTER ALIA THAT HE HAD UNDERSTOOD THE APPLICANT ' S LETTER OF 25 FEBRUARY 1973 TO MEAN THAT AFTER THE APPLICANT ' S DEPARTURE FROM ROCHE THE COMMISSION WAS FREE TO DO AS IT THOUGHT FIT . MOREOVER , HE RECEIVED NO INSTRUCTIONS FROM HIS SUPERIORS AS TO THE MANNER IN WHICH THE INFORMATION OBTAINED FROM THE APPLICANT SHOULD BE TREATED . AT THE MEETING OF 9 APRIL 1973 WITH THE APPLICANT THE QUESTION OF THE CONFIDENTIALITY OF THE APPLICANT ' S INFORMATION WAS NOT RAISED AND THE APPLICANT GAVE NO INFORMATION REGARDING HIS FUTURE ADDRESS . IN OCTOBER 1974 , MR RIHOUX AND TWO OF HIS COLLEAGUES , INCLUDING MR PAPPALARDO , VISITED THE ROCHE SUBSIDIARY IN PARIS , WHERE THEY MADE EVERY ATTEMPT , WITHOUT SUCCESS , TO OBTAIN COPIES OF THE DOCUMENTS SUPPLIED BY THE APPLICANT . TO THAT END , THEY READ TO THE ROCHE EMPLOYEES EXTRACTS FROM THOSE DOCUMENTS , WITHOUT HOWEVER SHOWING THE SAID DOCUMENTS TO THEM . THE QUESTION THEN AROSE AS TO WHETHER THE INVESTIGATION WOULD HAVE TO BE CLOSED DESPITE THE OVERWHELMING PROOF THAT THE COMMISSION HAD IN ITS POSSESSION . IT WAS THEREFORE NECESSARY TO WEIGH UP CAREFULLY THE INTERESTS AT STAKE , NAMELY , THE PUBLIC INTEREST , WHICH REQUIRED THAT THE PROVISIONS OF THE TREATY SHOULD BE ENFORCED , AND THE INDIVIDUAL INTEREST , WHICH WAS CONTRARY TO THE COMMISSION ' S DISCLOSING THE INFORMANT ' S IDENTITY . IN PARTICULAR , THE METHOD BY WHICH THE DOCUMENTS HAD BEEN PASSED TO THE COMMISSION AND THE INDICATIONS ON THE FACE THEREOF MILITATED AGAINST THEIR USE . IT WAS THEREFORE DECIDED TO USE , AND TO PASS ON TO ROCHE , EDITED PHOTOCOPIES OF THE DOCUMENTS WHICH WERE BOTH ANONYMOUS IN CHARACTER AND SUFFICIENTLY CONVINCING FOR THE PROSECUTION OF THE INQUIRY . MR RIHOUX STATED THAT NO-ONE AT THE COMMISSION HAD THOUGHT OF INFORMING THE APPLICANT OF THE THREATS MADE BY DR ALDER DURING HIS VISIT TO THE COMMISSION ON 8 NOVEMBER 1974 . THE APPLICANT HAD IN FACT DISAPPEARED WITHOUT INFORMING THE COMMISSION OF HIS ADDRESS AND THERE WAS NO REASON TO BELIEVE THAT HE WAS GOING TO RETURN TO SWITZERLAND . FINALLY THE COMMISSION TOOK THE VIEW THAT DR ALDER ' S THREATS WERE MERELY ' BLUFF ' .
24 MR PAPPALARDO , WHO HAS BEEN ASSIGNED TO DG IV SINCE SEPTEMBER 1983 , SUPPLEMENTED MR RIHOUX ' S EVIDENCE BY STATING THAT DURING HIS VISIT TO THE COMMISSION ON 8 NOVEMBER 1974 DR ALDER HAD EXPLAINED THE CONTENTS OF ARTICLE 273 OF THE SWISS PENAL CODE .
25 DR PORTMANN EXPLAINED THAT THE APPLICANT ' S DEFENCE HAD BEEN UNDERTAKEN AT HIS REQUEST AT THE BEGINNING OF 1975 . INITIALLY THE APPLICANT ' S LAWYERS HAD RECEIVED INSTRUCTIONS ONLY FROM THE APPLICANT HIMSELF . LATER THE LAWYERS RECEIVED INFORMATION FROM THE COMMISSION BUT NO SPECIFIC INSTRUCTIONS .
THE OBJECTION THAT THE ACTION IS TIME-BARRED
26 THE COMMISSION RAISES THE OBJECTION THAT THE APPLICANT ' S ACTION IS TIME-BARRED BY VIRTUE OF ARTICLE 43 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC .
27 IN VIEW OF THE FACT THAT THE ACTION IS FOUNDED ON SEVERAL EVENTS WHICH OCCURRED AT DIFFERENT TIMES AND WHICH BECAME KNOWN TO THE APPLICANT AT DIFFERENT TIMES , THE PERTINENCE OF THE OBJECTION THAT THE ACTION IS TIME-BARRED CANNOT BE CONSIDERED BEFORE THE QUESTION WHETHER ANY OF THOSE EVENTS , AND IF SO WHICH , ARE CAPABLE OF GIVING RISE TO THE NON-CONTRACTUAL LIABILITY OF THE COMMISSION HAS BEEN EXAMINED . ONLY AFTER THAT QUESTION HAS BEEN RESOLVED WILL IT BE POSSIBLE TO DETERMINE WHETHER THE ACTION IS BARRED BY VIRTUE OF THE FIVE-YEAR LIMITATION PERIOD LAID DOWN IN ARTICLE 43 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC . IT IS THEREFORE NECESSARY , IN THE FIRST PLACE , TO CONSIDER THE SUBMISSIONS REGARDING THE EXISTENCE OF A BASIS FOR LIABILITY .
THE EXISTENCE OF A BASIS FOR LIABILITY
( A ) BREACHES OF THE DUTY OF CONFIDENTIALITY AND THE DUTY TO WARN THE APPLICANT
28 THE APPLICANT CLAIMS THAT THE RELATIONSHIP BETWEEN THE COMMISSION AND HIMSELF WAS IN FACT CONFIDENTIAL IN NATURE , AS IS CLEAR BOTH FROM HIS FIRST LETTER TO THE COMMISSION , DATED 25 FEBRUARY 1973 , AND THE DISCUSSION WHICH HE HAD WITH THE COMMISSION OFFICIALS AT THE MEETING ON 9 APRIL 1973 . THE EXISTENCE OF A DUTY OF CONFIDENTIALITY FOLLOWS , MOREOVER , FROM THE GENERAL PRINCIPLES COMMON TO THE LAWS OF THE MEMBER STATES AND FROM THE OBLIGATIONS IMPOSED ON THE COMMISSION BY ARTICLE 214 OF THE EEC TREATY AND BY ARTICLE 20 OF REGULATION NO 17 OF THE COUNCIL OF 6 FEBRUARY 1962 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1959-1962 , P . 87 ).
29 IN PARTICULAR THE APPLICANT POINTS OUT THAT THE FACT THAT HE INDICATED IN HIS LETTER OF 25 FEBRUARY 1973 THAT HE WOULD BE PREPARED TO GIVE EVIDENCE ON OATH BEFORE THE COURT AS TO THE ACCURACY OF HIS STATEMENTS SHOWED THAT HIS IDENTITY WAS TO BE DISCLOSED BY HIMSELF ALONE AFTER THE COMMISSION INVESTIGATION HAD BEEN COMPLETED AND THE PROCEEDINGS BEFORE THE COURT INITIATED . THE APPLICANT MAINTAINS THAT HE NEVER GAVE THE COMMISSION TO UNDERSTAND THAT AFTER HE HAD LEFT ROCHE HE WOULD NO LONGER INSIST ON THAT DUTY OF CONFIDENTIALITY IN REGARD TO HIM . FINALLY , IN THE APPLICANT ' S VIEW , THE COMMISSION ' S CONDUCT PROVED THAT IT CONSIDERED ITSELF BOUND BY SUCH A DUTY . THUS ON SEVERAL OCCASIONS , BOTH BEFORE AND AFTER THE APPLICANT HAD LEFT ROCHE , THE COMMISSION DELIBERATELY REFUSED TO NAME ITS INFORMANT - UNTIL THE BEGINNING OF 1975 WHEN MR SCHLIEDER DISCLOSED HIS NAME .
30 ALTHOUGH THE COMMISSION WAS THEREFORE BOUND BY A DUTY OF CONFIDENTIALITY TOWARDS THE APPLICANT , IN HIS VIEW IT ACTED IN BREACH OF THAT OBLIGATION ON THREE OCCASIONS IN PARTICULAR . IN THE FIRST PLACE , THE DISCLOSURE OF THE COPIES OF THE DOCUMENTS TO THE ROCHE EMPLOYEES IN OCTOBER 1974 ENABLED ROCHE TO INFER THEREFROM THAT THE APPLICANT WAS THE MOST LIKELY INFORMANT . SECONDLY , THE COMMISSION FAILED TO WARN THE APPLICANT OF THE RISK THAT HE WOULD INEVITABLY RUN IF HE RETURNED TO SWITZERLAND . IN THE APPLICANT ' S VIEW , IT WAS THE COMMISSION ' S DUTY TO WARN HIM OF THAT RISK , EITHER AFTER THE DOCUMENTS HAD BEEN HANDED OVER TO THE ROCHE EMPLOYEES OR , AND IN ANY EVENT , AFTER DR ALDER ' S FIRST VISIT TO THE COMMISSION IN NOVEMBER 1974 , WHEN THE COMMISSION WAS MADE FULLY AWARE OF THE GRAVITY OF THAT RISK . IN THAT RESPECT , THE APPLICANT POINTS OUT THAT DR ALDER HAD TOLD THE COMMISSION OFFICIALS THAT ROCHE WAS CONSIDERING THE POSSIBILITY OF CRIMINAL PROCEEDINGS AGAINST THE INFORMANT AND THAT THE LAWYER HAD EVEN EXPLAINED THE CONTENTS OF THE RELEVANT PROVISION OF THE SWISS PENAL CODE . THIRDLY , AND FINALLY , IN FEBRUARY 1975 MR SCHLIEDER NAMED THE APPLICANT AS THE COMMISSION ' S INFORMANT .
31 THE COMMISSION DENIES THAT IT WAS BOUND BY A DUTY OF CONFIDENTIALITY TOWARDS THE APPLICANT AFTER HE HAD LEFT HIS EMPLOYMENT WITH ROCHE . IT BASES ITS CONTENTION IN PARTICULAR ON THE APPLICANT ' S EXPRESS STATEMENT IN HIS LETTER OF 25 FEBRUARY 1973 THAT , AFTER HE HAD LEFT ROCHE , HE WOULD BE WILLING TO APPEAR BEFORE ANY COURT , IN OTHER WORDS NOT ONLY BEFORE THE COURT OF JUSTICE , TO CONFIRM ON OATH THE STATEMENTS HE HAD MADE . MOREOVER , THE APPLICANT ' S CONDUCT AFTER HE HAD LEFT ROCHE GAVE THE COMMISSION GOOD REASON TO BELIEVE THAT IT WAS A MATTER OF INDIFFERENCE TO HIM WHETHER HE WAS IDENTIFIED AS THE INFORMANT , SINCE HE HAD NOT EVEN INFORMED THE COMMISSION OF HIS NEW ADDRESS . ACCORDING TO THE COMMISSION THE FACT THAT IT REPEATEDLY DECLINED TO IDENTIFY ITS INFORMANT IN NO WAY ESTABLISHES THAT IT CONSIDERED ITSELF BOUND BY A DUTY OF CONFIDENTIALITY . ITS CONDUCT WAS DICTATED ENTIRELY BY ITS GENERAL PRACTICE OF NOT DIVULGING THE IDENTITY OF ITS INFORMANTS .
32 IN ANY EVENT THE COMMISSION CONTENDS THAT EVEN IF IT WERE UNDER A DUTY OF CONFIDENTIALITY REGARDING THE APPLICANT ' S IDENTITY , IT DID NOT ACT IN BREACH OF THAT DUTY . THE FACT THAT IT HANDED OVER PHOTOCOPIES TO THE ROCHE EMPLOYEES DID NOT AMOUNT TO SUCH A BREACH , SINCE IT COULD NOT POSSIBLY HAVE BEEN FORESEEN THAT ROCHE WOULD BE ABLE TO IDENTIFY THE SOURCE OF THE DOCUMENTS BY EXAMINING THE COPIES . THE APPLICANT NEVER REQUESTED THE COMMISSION NOT TO DISCLOSE THOSE DOCUMENTS TO ROCHE . ON THE OTHER HAND , HE AGREED THAT THE COMMISSION COULD USE THE DOCUMENTS IN CONNECTION WITH AN INVESTIGATION OF THAT FIRM . THE COMMISSION HAD CONSIDERED THAT IT WAS NECESSARY TO DISCLOSE THEM TO ROCHE BUT IT NEVERTHELESS TOOK CARE TO REMOVE ANYTHING WHICH LOOKED AS THOUGH IT MIGHT INDICATE THEIR SPECIFIC SOURCE . MOREOVER , THE DOCUMENTS IN QUESTION HAD NO EVIDENT CONNECTION WITH THE APPLICANT , WHO COULD HAVE BEEN IDENTIFIED ONLY BY SOMEONE WITH A HIGHLY DETAILED KNOWLEDGE OF THE ORGANIZATION AND THE OPERATION OF ROCHE . THE APPLICANT HAD NEVER WARNED THE COMMISSION OF SUCH A RISK .
33 AS REGARDS THE POSSIBLE EXISTENCE OF A DUTY ON THE PART OF THE COMMISSION TO WARN THE APPLICANT , THE COMMISSION CONTENDS THAT SUCH A DUTY CANNOT BE INFERRED FROM ANY DUTY OF CONFIDENTIALITY WHICH MAY HAVE EXISTED . IN SO FAR AS THE APPLICANT IS PUTTING FORWARD A SEPARATE SUBMISSION IN THIS RESPECT , THE COMMISSION ADDS THAT IT IS IMPOSSIBLE TO ESTABLISH IN LAW THAT , FOLLOWING DR ALDER ' S VISIT , IT WAS UNDER A DUTY TO WARN THE APPLICANT OF THE RISKS THAT HE WOULD RUN IF HE RETURNED TO SWITZERLAND . IN ADDITION , THE COMMISSION HAD NO REASON TO BELIEVE THAT ROCHE WOULD BE ABLE TO IDENTIFY THE APPLICANT AS THE INFORMANT . FINALLY , DURING HIS TELEPHONE CONVERSATION WITH DR ALDER AT THE BEGINNING OF FEBRUARY 1975 , MR SCHLIEDER REVEALED NOTHING THAT ROCHE AND THE SWISS AUTHORITIES DID NOT ALREADY KNOW , SINCE BY THEN THE APPLICANT HAD ALREADY ADMITTED THAT HE WAS THE COMMISSION ' S INFORMANT .
34 AS REGARDS THE EXISTENCE OF A DUTY OF CONFIDENTIALITY IT MUST BE POINTED OUT THAT ARTICLE 214 OF THE EEC TREATY LAYS DOWN AN OBLIGATION , IN PARTICULAR FOR THE MEMBERS AND THE SERVANTS OF THE INSTITUTIONS OF THE COMMUNITY ' NOT TO DISCLOSE INFORMATION OF THE KIND COVERED BY THE OBLIGATION OF PROFESSIONAL SECRECY , IN PARTICULAR INFORMATION ABOUT UNDERTAKINGS , THEIR BUSINESS RELATIONS OR THEIR COST COMPONENTS ' . ALTHOUGH THAT PROVISION PRIMARILY REFERS TO INFORMATION GATHERED FROM UNDERTAKINGS , THE EXPRESSION ' IN PARTICULAR ' SHOWS THAT THE PRINCIPLE IN QUESTION IS A GENERAL ONE WHICH APPLIES ALSO TO INFORMATION SUPPLIED BY NATURAL PERSONS , IF THAT INFORMATION IS ' OF THE KIND ' THAT IS CONFIDENTIAL . THAT IS PARTICULARLY SO IN THE CASE OF INFORMATION SUPPLIED ON A PURELY VOLUNTARY BASIS BUT ACCOMPANIED BY A REQUEST FOR CONFIDENTIALITY IN ORDER TO PROTECT THE INFORMANT ' S ANONYMITY . AN INSTITUTION WHICH ACCEPTS SUCH INFORMATION IS BOUND TO COMPLY WITH SUCH A CONDITION .
35 AS REGARDS THE CASE BEFORE THE COURT , IT IS QUITE CLEAR FROM THE APPLICANT ' S LETTER OF 25 FEBRUARY 1973 THAT HE REQUESTED THE COMMISSION NOT TO REVEAL HIS IDENTITY . IT CANNOT THEREFORE BE DENIED THAT THE COMMISSION WAS BOUND BY A DUTY OF CONFIDENTIALITY TOWARDS THE APPLICANT IN THAT RESPECT . IN FACT THE PARTIES DISAGREE NOT SO MUCH AS TO THE EXISTENCE OF SUCH A DUTY BUT AS TO WHETHER THE COMMISSION WAS BOUND BY A DUTY OF CONFIDENTIALITY AFTER THE APPLICANT HAD LEFT HIS EMPLOYMENT WITH ROCHE .
36 IN THAT RESPECT IT MUST BE POINTED OUT THAT THE APPLICANT DID NOT QUALIFY HIS REQUEST BY INDICATING A PERIOD UPON THE EXPIRY OF WHICH THE COMMISSION WOULD BE RELEASED FROM ITS DUTY OF CONFIDENTIALITY REGARDING THE IDENTITY OF ITS INFORMANT . NO SUCH INDICATION CAN BE INFERRED FROM THE FACT THAT THE APPLICANT WAS PREPARED TO APPEAR BEFORE ANY COURT AFTER HE HAD LEFT ROCHE . THE GIVING OF EVIDENCE BEFORE A COURT IMPLIES THAT THE WITNESS HAS BEEN DULY SUMMONED , THAT HE IS UNDER A DUTY TO ANSWER THE QUESTIONS PUT TO HIM , AND IS , IN RETURN , ENTITLED TO ALL THE GUARANTEES 1975 . HOWEVER , THAT CONVERSATION TOOK PLACE AFTER THE APPLICANT HAD CAUSED AN ANONYMOUS LETTER TO BE SENT TO THE COMMISSION INFORMING IT OF HIS DETENTION AND SEEKING ITS HELP . IT IS DIFFICULT TO SEE HOW THE COMMISSION COULD HAVE ACTED ON THAT REQUEST WITHOUT CONFIRMING , AT LEAST BY IMPLICATION , THAT THE APPLICANT WAS INDEED ITS INFORMANT . MOREOVER , IT TRANSPIRED SUBSEQUENTLY THAT AT THAT TIME THE APPLICANT HAD ALREADY ADMITTED TO THE SWISS POLICE THAT HE HAD GIVEN INFORMATION , AT LEAST ORALLY , TO THE COMMISSION AND IT IS CLEAR FROM THE DECISIONS OF THE SWISS COURTS THAT THE CONFIRMATION OF THAT FACT BY MR SCHLIEDER DID NOT HAVE A DECISIVE BEARING ON THE APPLICANT ' S CONVICTION . THE DISCLOSURE OF THE APPLICANT ' S IDENTITY AT THAT TIME AND IN THOSE CIRCUMSTANCES CANNOT BE REGARDED AS CONSTITUTING A BREACH OF THE DUTY OF CONFIDENTIALITY WHICH COULD GIVE RISE TO THE COMMISSION ' S LIABILITY VIS-A-VIS THE APPLICANT .
39 ON THE OTHER HAND , IT IS CLEAR THAT THE HANDING OVER OF THE EDITED PHOTOCOPIES TO MEMBERS OF THE STAFF OF THE ROCHE SUBSIDIARIES ENABLED ROCHE TO IDENTIFY THE APPLICANT AS THE MAIN SUSPECT IN THE COMPLAINT WHICH IT LODGED WITH THE SWISS PUBLIC PROSECUTOR ' S OFFICE . IT WAS THEREFORE THAT HANDING OVER OF THE DOCUMENTS WHICH LED TO THE APPLICANT ' S ARREST AND WHICH IN ADDITION SUPPLIED THE POLICE AND THE SWISS COURTS WITH SUBSTANTIAL EVIDENCE AGAINST HIM .
40 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT THE COMMISSION WAS FULLY AWARE OF THE RISK THAT THE HANDING OVER TO ROCHE OF THE PHOTOCOPIES SUPPLIED BY THE APPLICANT MIGHT REVEAL THE INFORMANT ' S IDENTITY TO THE COMPANY . FOR THAT REASON THE COMMISSION OFFICIALS FIRST ATTEMPTED TO OBTAIN OTHER COPIES OF THE DOCUMENTS IN QUESTION FROM THE ROCHE SUBSIDIARIES IN PARIS AND BRUSSELS . WHEN THAT ATTEMPT FAILED , THE COMMISSION PREPARED NEW COPIES OF THE DOCUMENTS WHICH IT CONSIDERED WERE THE LEAST LIKELY TO LEAD TO THE DISCOVERY OF THE APPLICANT ' S IDENTITY AND IT TOOK CARE TO REMOVE FROM THOSE COPIES ANY INDICATION WHICH IT CONSIDERED MIGHT REVEAL THE SOURCE OF THE DOCUMENTS . HOWEVER , SINCE IT WAS NOT FAMILIAR WITH ROCHE ' S PRACTICES REGARDING THE DISTRIBUTION OF THE DOCUMENTS IN QUESTION WITHIN THE COMPANY , THE COMMISSION COULD NOT BE SURE THAT THOSE PRECAUTIONS WERE SUFFICIENT TO ELIMINATE ALL RISK OF THE APPLICANT ' S BEING IDENTIFIED BY MEANS OF THE COPIES HANDED OVER TO ROCHE . THE COMMISSION WAS THEREFORE , IN ANY EVENT , IMPRUDENT IN HANDING OVER THOSE COPIES TO ROCHE WITHOUT HAVING CONSULTED THE APPLICANT .
41 IT IS NOT HOWEVER NECESSARY TO DECIDE WHETHER , IN VIEW OF THE SITUATION AT THE TIME AND IN PARTICULAR OF THE INFORMATION IN THE COMMISSION ' S POSSESSION , THE HANDING OVER OF THE DOCUMENTS IS SUFFICIENT TO GIVE RISE TO THE COMMISSION ' S LIABILITY REGARDING THE CONSEQUENCES OF THE APPLICANT ' S BEING IDENTIFIED AS THE INFORMANT . ALTHOUGH THE COMMISSION WAS NOT NECESSARILY AWARE , WHEN THOSE DOCUMENTS WERE HANDED OVER , OF THE GRAVITY OF THE RISK TO WHICH IT WAS EXPOSING THE APPLICANT , DR ALDER ' S VISIT ON 8 NOVEMBER 1974 , ON THE OTHER HAND , PROVIDED IT WITH ALL THE NECESSARY INFORMATION IN THAT RESPECT . FOLLOWING THAT VISIT THE COMMISSION KNEW THAT ROCHE WAS DETERMINED TO DISCOVER HOW THE COMMISSION HAD COME INTO POSSESSION OF THE DOCUMENTS IN QUESTION AND THAT IT WAS PREPARING TO LAY A COMPLAINT AGAINST THE INFORMANT UNDER ARTICLE 273 OF THE SWISS PENAL CODE , THE CONTENTS OF WHICH DR ALDER EVEN TOOK CARE TO EXPLAIN . THE COMMISSION ALSO KNEW THAT THERE WAS A POSSIBILITY OF OBTAINING FROM ROCHE , IN RETURN FOR THE DISCLOSURE OF THE INFORMANT ' S IDENTITY , AN UNDERTAKING NOT TO TAKE ACTION AGAINST HIM . IT COULD NOT HOWEVER PURSUE THAT POSSIBILITY WITHOUT THE APPLICANT ' S CONSENT .
42 IN THOSE CIRCUMSTANCES IT WAS NOT AT ALL SUFFICIENT FOR THE COMMISSION MERELY TO TAKE THE VIEW THAT IT WAS UNLIKELY THAT THE APPLICANT WOULD BE IDENTIFIED , THAT HE WAS PROBABLY NEVER GOING TO RETURN TO SWITZERLAND AND THAT , IN ANY EVENT , THE SWISS AUTHORITIES DID NOT INTEND TO INSTITUTE CRIMINAL PROCEEDINGS AGAINST HIM . ON THE CONTRARY , THE COMMISSION WAS UNDER A DUTY TO TAKE EVERY POSSIBLE STEP TO WARN THE APPLICANT , THEREBY ENABLING HIM TO MAKE HIS OWN ARRANGEMENTS IN THE LIGHT OF THE INFORMATION GIVEN BY DR ALDER , AND TO CONSULT HIM AS TO THE APPROACH TO BE ADOPTED IN RELATION TO DR ALDER ' S PROPOSALS .
43 ALTHOUGH THE APPLICANT HAD NOT LEFT ANY PRECISE ADDRESS MAKING IT POSSIBLE FOR THE COMMISSION TO CONTACT HIM EASILY , IN HIS LETTER OF 25 FEBRUARY 1973 HE HAD ALREADY INDICATED HIS INTENTION OF SETTING UP HIS OWN MEAT BUSINESS IN ITALY , NEAR ROME . EVEN IN THE ABSENCE OF OTHER INDICATIONS , THAT INFORMATION WOULD HAVE ENABLED THE COMMISSION TO MAKE INQUIRIES WITH A VIEW TO DISCOVERING WHERE THE APPLICANT WAS STAYING . IT IS COMMON GROUND THAT THE COMMISSION DID NOT EVEN ATTEMPT TO FIND THE APPLICANT ALTHOUGH IT ALLOWED ALMOST ONE MONTH TO ELAPSE BEFORE COMMUNICATING TO DR ALDER ITS FINAL REFUSAL TO DISCUSS THE ORIGIN OF THE DOCUMENTS IN ITS POSSESSION , A REFUSAL WHICH WAS FOLLOWED BY THE LODGING OF ROCHE ' S COMPLAINT AT THE SWISS PUBLIC PROSECUTOR ' S OFFICE .
44 IT MUST THEREFORE BE CONCLUDED THAT , BY FAILING TO MAKE ALL REASONABLE EFFORTS TO PASS ON TO THE APPLICANT THE INFORMATION WHICH WAS AVAILABLE TO IT FOLLOWING DR ALDER ' S VISIT OF 8 NOVEMBER 1974 , EVEN THOUGH THE COMMUNICATION OF THAT INFORMATION MIGHT HAVE PREVENTED , OR AT LEAST LIMITED , THE DAMAGE WHICH WAS LIKELY TO RESULT FROM THE DISCOVERY OF THE APPLICANT ' S IDENTITY BY MEANS OF THE DOCUMENTS WHICH IT HAD HANDED OVER TO ROCHE , THE COMMISSION HAS INCURRED LIABILITY TOWARDS THE APPLICANT IN RESPECT OF THAT DAMAGE .
( B ) THE DUTY TO ADVISE THE APPLICANT WITH REGARD TO THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS
45 THE APPLICANT ' S FINAL CLAIM IS THAT INASMUCH AS IT UNDERTOOK IN APRIL 1975 TO ADVISE DR BOLLAG ON THE PREPARATION OF THE APPLICANT ' S DEFENCE , THE COMMISSION OWED A DUTY OF CARE TO THE APPLICANT , WHICH CONSISTED IN GIVING HIM PROPER PROFESSIONAL ADVICE . BY FAILING TO ADVISE THE APPLICANT IN GOOD TIME OF HIS RIGHT TO PETITION THE EUROPEAN COMMISSION OF HUMAN RIGHTS , THE COMMISSION FAILED TO FULFIL THAT DUTY .
46 THE COMMISSION CONTENDS THAT IT NEVER UNDERTOOK TO ADVISE THE APPLICANT OR HIS LAWYER REGARDING THE POSSIBILITY OF PETITIONING THE EUROPEAN COMMISSION OF HUMAN RIGHTS . IT MERELY PAID THE LEGAL COSTS OF THE APPLICANT ' S DEFENCE AND LEFT IT TO HIS LAWYERS TO ADVISE HIM .
47 THE APPLICANT ' S SUBMISSION IS CLEARLY ILL-FOUNDED . IT IS CLEAR FROM THE INFORMATION BEFORE THE COURT , AND IN PARTICULAR FROM THE EVIDENCE OF DR PORTMANN , THAT THE APPLICANT HIMSELF RETAINED HIS LAWYERS FOR HIS DEFENCE AND THAT THEY RECEIVED INSTRUCTIONS ONLY FROM HIM . THE COMMISSION MERELY PROVIDED THE INFORMATION REQUESTED , IN PARTICULAR IN RELATION TO THE FREE TRADE AGREEMENT CONCLUDED BETWEEN THE COMMUNITY AND THE SWISS CONFEDERATION AND , IN ADDITION , PAID THE LEGAL COSTS . THE COURT CONSIDERS THAT THE COMMISSION WAS UNDER NO ADDITIONAL DUTY AND THAT IT WAS NOT THEREFORE NEGLIGENT IN FAILING TO GIVE SPECIFIC INSTRUCTIONS TO THE APPLICANT ' S LAWYERS IN REGARD TO HIS DEFENCE AND IN NOT DIRECTLY ADVISING HIM IN THAT RESPECT .
THE QUESTION WHETHER THE APPLICANT ' S ACTION IS TIME-BARRED
48 ACCORDING TO THE COMMISSION , THE APPLICANT ' S ACTION IS , IN ANY EVENT , TIME-BARRED UNDER ARTICLE 43 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC . ALL THE EVENTS ON WHICH THE APPLICANT HAS FOUNDED HIS ACTION OCCURRED MORE THAN FIVE YEARS BEFORE IT WAS BROUGHT . IN ITS VIEW , ARTICLE 43 DOES NOT REQUIRE THAT THE APPLICANT SHOULD HAVE HAD KNOWLEDGE OF THOSE EVENTS IN GOOD TIME . IN ANY CASE THE APPLICANT HAD SUFFICIENT KNOWLEDGE OF THOSE EVENTS TO BE ABLE TO ASSERT ANY RIGHTS WHICH HE MAY HAVE HAD AFTER RECEIVING THE INFORMATION SUPPLIED BY THE SWISS POLICE DURING THE INTERROGATIONS AND , AT THE LATEST , WHEN HE READ THE SWISS JUDGMENTS .
49 THE APPLICANT CLAIMS THAT , BROADLY SPEAKING , THE EVENTS ON WHICH HE RELIES DID NOT BECOME KNOWN TO HIM UNTIL 1980 , AFTER HIS NEW LAWYER , DR DIEFENBACHER , HAD HAD THE OPPORTUNITY TO STUDY THE DOCUMENTS RELATING TO THE CRIMINAL PROCEEDINGS . HE DID NOT BELIEVE THE INFORMATION SUPPLIED BY THE SWISS POLICE AND HE WAS NOT ABLE TO READ THE SWISS JUDGMENTS , WHICH WERE DRAFTED IN GERMAN . IN ANY EVENT , HE COULD NOT POSSIBLY HAVE KNOWN OF THE EVENTS RELATING TO DR ALDER ' S VISIT TO THE COMMISSION ON 8 NOVEMBER 1974 .
50 ACCORDING TO ARTICLE 43 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC ' PROCEEDINGS AGAINST THE COMMUNITY IN MATTERS ARISING FROM NON-CONTRACTUAL LIABILITY SHALL BE BARRED AFTER A PERIOD OF FIVE YEARS FROM THE OCCURRENCE OF THE EVENT GIVING RISE THERETO ' . THAT PROVISION MUST BE INTERPRETED AS MEANING THAT THE EXPIRY OF THE LIMITATION PERIOD CANNOT CONSTITUTE A VALID DEFENCE TO A CLAIM BY A PERSON WHO HAS SUFFERED DAMAGE WHERE THAT PERSON ONLY BELATEDLY BECAME AWARE OF THE EVENT GIVING RISE TO IT AND THUS COULD NOT HAVE HAD A REASONABLE TIME IN WHICH TO SUBMIT HIS APPLICATION TO THE COURT OR TO THE RELEVANT INSTITUTION BEFORE THE EXPIRY OF THE LIMITATION PERIOD .
51 IN THIS CASE IT MUST BE BORNE IN MIND THAT THE COURT HAS BASED ITS CONCLUSION IN REGARD TO THE COMMUNITY ' S LIABILITY ON THE FACT THAT THE COMMISSION HAD NOT ATTEMPTED TO INFORM AND TO CONSULT THE APPLICANT FOLLOWING DR ALDER ' S VISIT OF 8 NOVEMBER 1974 . IT IS CLEAR FROM THE INFORMATION BEFORE THE COURT THAT THE APPLICANT COULD NOT HAVE BECOME AWARE OF THAT FACT UNTIL THE PREPARATORY INQUIRY IN THESE PROCEEDINGS , SINCE DR ALDER ' S VISIT WAS MENTIONED FOR THE FIRST TIME IN THE COMMISSION ' S DEFENCE . THEREFORE HE COULD NOT HAVE SOUGHT TO ESTABLISH THE COMMUNITY ' S LIABILITY ON THAT BASIS BEFORE THE NORMAL DATE OF EXPIRY OF THE LIMITATION PERIOD .
52 IT FOLLOWS THAT THE COMMISSION ' S OBJECTION MUST BE DISMISSED .
DAMAGES
53 IT MUST THEREFORE BE CONCLUDED THAT IN PRINCIPLE THE COMMUNITY IS BOUND TO MAKE GOOD THE DAMAGE RESULTING FROM THE DISCOVERY OF THE APPLICANT ' S IDENTITY BY MEANS OF THE DOCUMENTS HANDED OVER TO ROCHE BY THE COMMISSION . IT MUST HOWEVER BE RECOGNIZED THAT THE EXTENT OF THE COMMISSION ' S LIABILITY IS DIMINISHED BY REASON OF THE APPLICANT ' S OWN NEGLIGENCE . THE APPLICANT FAILED TO INFORM THE COMMISSION THAT IT WAS POSSIBLE TO INFER HIS IDENTITY AS THE INFORMANT FROM THE DOCUMENTS THEMSELVES , ALTHOUGH HE WAS IN THE BEST POSITION TO APPRECIATE AND TO AVERT THAT RISK . NOR DID HE ASK THE COMMISSION TO KEEP HIM INFORMED OF THE PROGRESS OF THE INVESTIGATION OF ROCHE , AND IN PARTICULAR OF ANY USE THAT MIGHT BE MADE OF THE DOCUMENTS FOR THAT PURPOSE . LASTLY , HE WENT BACK TO SWITZERLAND WITHOUT ATTEMPTING TO MAKE ANY INQUIRIES IN THAT RESPECT , ALTHOUGH HE MUST HAVE BEEN AWARE OF THE RISKS TO WHICH HIS CONDUCT TOWARDS HIS FORMER EMPLOYER HAD EXPOSED HIM WITH REGARD TO SWISS LEGISLATION .
54 CONSEQUENTLY , THE APPLICANT HIMSELF CONTRIBUTED SIGNIFICANTLY TO THE DAMAGE WHICH HE SUFFERED . IN ASSESSING THE CONDUCT OF THE COMMISSION ON THE ONE HAND AND THAT OF THE APPLICANT ON THE OTHER , THE COURT CONSIDERS IT EQUITABLE TO APPORTION RESPONSIBILITY FOR THAT DAMAGE EQUALLY BETWEEN THE TWO PARTIES .
55 IT FOLLOWS FROM ALL THE FOREGOING CONSIDERATIONS THAT THE COMMISSION MUST BE ORDERED TO COMPENSATE THE APPLICANT TO THE EXTENT OF ONE HALF OF THE DAMAGE SUFFERED BY HIM AS A RESULT OF THE FACT THAT HE WAS IDENTIFIED AS THE SOURCE OF INFORMATION REGARDING ROCHE ' S ANTI-COMPETITIVE PRACTICES . FOR THE REST , HOWEVER , THE APPLICATION MUST BE DISMISSED . THE AMOUNT OF THE DAMAGES IS TO BE DETERMINED BY AGREEMENT BETWEEN THE PARTIES OR , FAILING SUCH AGREEMENT , BY THE COURT .
ON THOSE GROUNDS ,
THE COURT ,
AS AN INTERLOCUTORY DECISION ,
HEREBY :
( 1 ) ORDERS THE COMMISSION TO COMPENSATE THE APPLICANT TO THE EXTENT OF ONE HALF OF THE DAMAGE SUFFERED BY HIM AS A RESULT OF THE FACT THAT HE WAS IDENTIFIED AS THE SOURCE OF INFORMATION WHICH LED THE COMMISSION TO IMPOSE A FINE ON HIS FORMER EMPLOYER , THE SWISS COMPANY HOFFMANN-LA ROCHE , FOR CERTAIN ANTI-COMPETITIVE PRACTICES ;
( 2)FOR THE REST , DISMISSES THE APPLICATION ;
( 3)ORDERS THE PARTIES TO INFORM THE COURT WITHIN NINE MONTHS FROM THE DELIVERY OF THIS JUDGMENT OF THE AMOUNT OF DAMAGES ARRIVED AT BY AGREEMENT ;
( 4)ORDERS THAT , IN THE ABSENCE OF AGREEMENT , THE PARTIES SHALL TRANSMIT TO THE COURT WITHIN THE SAME PERIOD A STATEMENT OF THEIR VIEWS WITH SUPPORTING FIGURES ;
( 5)RESERVES THE COSTS .
