The facts of the case, the course of the procedure and the conclusions, submissions and arguments of the parties may be summarized as follows:

By an application lodged at the Court on 18 July 1983 the applicant brought this action.

In his application the applicant claims that the Court should:

Order the Commission to pay damages to make good the injury suffered by the applicant by reason of the wrongful acts and/or omissions of the Commission and/or of its servants in the performance of their duties;

In any event, order the Commission to pay the costs.

In its defence the Commission contends that the Court should:

Dismiss the application;

Order the applicant to pay the costs.

By an order of the Court (Third Chamber) of 27 October 1983 the applicant was granted legal aid.

By an order of the Court (Third Chamber) of 22 March 1984 lawyers were appointed to assist the applicant.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court ordered a preparatory inquiry which was entrusted to the Second Chamber. In addition it invited the Commission to provide complete copies (without the alterations made by Commission officials) of the documents which the applicant had given it in 1973.

On 31 January and 1 February 1985 the Court (Second Chamber) heard the applicant and took evidence from his former Swiss lawyer, Dr Portmann, and various former and present officials of the Commission.

On conclusion of the preparatory inquiry and upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any other measure of inquiry. However, with the agreement of the parties, it was 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 action is based on the applicant's allegation that the Commision has been guilty of:

At the hearing the applicant explained inter alia that by his letter of 25 February 1973 he had sought to impose on the Commission an obligation of confidentiality which was continuous and without any date of expiry. It is true that he had stated in that letter that after he left Roche he would be prepared to appear before any court to give sworn evidence on his statements. However, 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 the course of his meeting with Mr Carisi and Mr Rihoux in Brussels on 9 April 1973, the applicant stated that the documents which he sent to the Commission were solely for its own use so that it might acquaint itself with Roche's activities. He believes that he did not expressly state that the documents were not to be shown to third parties; he did not do so because he did not imagine that the Commission would use them outside the institutions and the Commission officials never suggested that they wished to show the documents to anyone. The Commission needed the documents merely to acquaint itself with their contents. At the meeting, moreover, Mr Carisi and Mr Rihoux promised that the applicant's name would not be mentioned since the Commission was in a position to open its own inquiry. In the applicant's view it was easily foreseeable that Roche would identify him as the Commission's informant by means of the altered copies provided by it to Roche in October 1974. Certain of the documents contained notes in the applicant's hand, and in addition, in combination, they clearly indicated the source of the leak. However, the applicant concedes that that point was never discussed with the Commission. After he had supplied the documents to the Commission, the applicant considered that there was no reason for him to know anything more about what the Commission was going to do. He did not therefore ask to be kept informed about when the Roche investigation was to begin and the way in which it was proceeding. However, according to the applicant, it would have been possible for the Commission to keep him so informed because as from the time when it received the applicant's letter of February 1973 it was aware of his plans in Italy. Moreover, at the meeting in April 1973 the applicant told Mr Carisi that he intended to live in Latina. On the same occasion the applicant told Mr Carisi about his family and informed him in particular that his wife was Swiss and that his parents-in-law lived in Italy. Finally, in the course of a telephone conversation with Mr Carisi in early November 1973, the applicant explained that he intended to spend five months with his parents-in-law before going on to Latina and he gave their telephone number. After the applicant had been arrested in Switzerland, he managed to inform the Commission of his arrest by means of an anonymous letter. He hoped in that way to obtain the Commission's help in getting him out of the mess he was in. During his interrogation by the Swiss police the applicant admitted in general terms that he had supplied the Commission with information regarding Roche. On that occasion Police Officer Wick interrogated him on the basis of documents which he described as documents that the Commission officials had shown to the directors of the Roche subsidiaries in Paris and Brussels. However, at that time the applicant believed that it was only a trick to obtain his confession. He could not believe that the Commission, which was a friend to him, could have given that infomation to Roche. The applicant had entrusted his defence to Dr Bollag. When Dr Bollag's colleague, Dr Portmann, informed the applicant later that Mr Wick had told him that someone at the Commission had named him as the informant, neither the applicant nor Dr Portmann himself believed it. From the outset, moreover, Dr Bollag advised him that he would in any event be convicted by the Basle criminal court. Consequently when that prediction proved correct Dr Bollag simply informed him of the result of the case and asked him for his agreement in lodging an appeal. The details of that judgment were not discussed in any way and it was not until 1980, after he had changed lawyers, that the applicant received details of it. The copy of that judgment did not reach him until 1982. As regards the judgment of the Court of Appeal of 27 September 1977, as far as the applicant remembers he did not receive a copy of that either. In any event he had informed his lawyer and the Commission that there was absolutely no point in sending him documents in German which he did not understand. He does not remember having received the letter of 6 January 1978 with which the Commission sent him an English translation of the Court of Appeal's judgment, although he agrees that he must have told his present lawyers that he had received the translation, since they have admitted that this was so and would not have invented it. After his release in Switzerland he never attempted to discover how the Swiss police came into possession of the incriminating documents. Finally the applicant acknowledges that the Commission has never admitted liability for his arrest.

The witness Dr Portmann, a Swiss lawyer, stated 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, when he had been released on bail, the lawyers received information from the Commission but no specific instructions. During the period of the applicant's imprisonment in Switzerland it was not possible for his lawyers to consult the prosecutor's file. Finally, the question whether the applicant had given information to the Commission verbally or in writing was not essential for his defence. The means by which the information was passed would have changed nothing in view of the fact that the applicant had not denied that he had informed the Commission of Roche's unlawful acts. It was customary in Dr Bollag's Chambers to send judgments to clients as soon as they were received. Doubtless the same procedure had been adopted in the case in question. Dr Portmann knew that the applicant did not speak German but he had never had the judgments relating to him translated into English.

Mr Schlieder, the former Director-General of the Directorate-General of Competition (DG IV) of the Commission, stated inter alia that the Commission realized as soon as it received the applicant's letter of 25 February 1973 that it was faced with a very delicate case. Consequently it decided to approach the case with very great care. It was clear to the Commission that the inquiry to be undertaken in relation to 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 however 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 and he did not know at the time that they had been given to Roche. After the visits to the Roche subsidiaries in October 1974, lawyers representing the company attempted to reach an amicable settlement of the case. At the same time a threat was made that criminal proceedings might be brought against Commission officials. The visit of Dr Alder, Roche's Swiss lawyer, on 8 November 1974 was part of that process and in the course of that visit he asked to be informed of the informant's identity so that criminal proceedings against him could be avoided. As no one at the Commission believed in the possibility of such proceedings, Dr Alder's threats were merely regarded as a trick for the purposes of obtaining the informant's name. That is why the Commission did not consider it necessary to inform the applicant. Furthermore it was clear from a letter from the applicant that he had left Roche, and therefore Switzerland, to set up home in Italy. When at the end of January 1975 the Commission received an anonymous letter informing it of the applicant's arrest it was decided immediately to ask the Communities' representative in Switzerland, Mr Kohlhase, to make enquiries into the matter. It was clear that the Commission had to give the applicant its formal support and help him. In consequence Commissioner Borschette and Mr Schlieder decided that the Commission should intervene with the Swiss authorities in the applicant's favour. The Commission subsequently asked for a study to be made of Swiss law, from which it appeared to the great surprise of the Commission, and in particular of its Legal Department, that criminal proceedings against the applicant were entirely possible. Finally, the Commission decided to pay the costs of the applicant's defence which had been entrusted to the latter's Swiss lawyers subject to the supervision of the Commission's Legal Department. Mr Schlieder does not remember having had a telephone conversation with Dr Alder at the beginning of February 1975.

Mr Rihoux, a Commission official, 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 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 confidentiality was not raised. In addition the applicant did not refer to his family circumstances and he gave no information regarding his future address. There was not even any discussion concerning the applicant's letter. In October 1974 Mr Rihoux and two of his colleagues, including Mr Pappalardo, visited the Roche subsidiary in Paris. They made every attempt, without success, to obtain copies of the documents supplied to the Commission by the applicant. To that end they read to the staff of the subsidiary extracts from the Management Information memoranda, without however showing them the documents in question. They then left without having obtained what they were looking for. The question then arose as to whether it was necessary to close the investigation despite the overwhelming proof that the Commission had in its possession or whether to continue with it. It was necessary to weigh up carefully the interests at stake, namely, on the one hand the public interest which required that the provisions of the Treaty should be enforced and, on the other hand, the individual interest which prevented the Commission from 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. The decision to use them was therefore limited to those documents which were both sufficiently convincing for the prosecution of the inquiry and anonymous in character, such as the circulars, numerous copies of which must have been distributed. In that respect Mr Rihoux stated that the applicant had never forbidden the Commission to use the documents in a manner which was not confidential. Altered copies of the documents, were therefore prepared and it subsequently proved necessary to pass them to Roche during the visit to the subsidiaries on 29 October 1974 in order to obtain from Roche confirmation of their authenticity. On 8 November 1974 Mr Rihoux was at the meeting which took place between Dr Alder on the one hand and Mr Pappalardo and Mr Carisi on the other. During that meeting, of which Mr Schlieder was informed, Dr Alder attempted to bring pressure to bear on the Commission to terminate its inquiry against Roche and to provide Roche with the name of the informant. Dr Alder even threatened the Commission officials with criminal proceedings and an action under Article 273 of the Swiss Penal Code against an informant or informants unknown if the Commission did not supply the information requested. At the time no one thought to inform the applicant of those threats. After 9 April 1973 the Commission was no longer in contact with the applicant, who had disappeared without giving the Commission his address. In addition it had no reason to believe that the applicant would return to Switzerland. In his letter of 21 July 1973, the applicant had stated that after 31 October of the same year he was going to leave Roche. Finally from the Commission's point of view it was permissible to think that Dr Alder's threats were merely bluff. The Commission never believed that Roche would publicly institute proceedings against the informant for disclosure of its own unlawful acts.

Mr Pappalardo, a Commission official assigned to DG IV since September 1973, essentially confirmed Mr Rihoux's statements. He added that by giving to the Roche staff the incriminating documents the Commission officials had acted with the conviction that the applicant had no particular reason to hide his identity after he had left Roche, which, in Mr Pappalardo's view, was clear from the applicant's letter of 25 February 1973. Nevertheless the officials made every effort to prevent identification of the applicant. During his visit to the Commission on 8 November 1974 Dr Alder had explained the contents of Article 273 of the Swiss Penal Code. The explanation was, however, superficial and it did not appear probable to Mr Pappalardo and his colleagues that a person could be prosecuted in Switzerland for having supplied information which provided proof of unlawful conduct. Dr Alder's threats did not therefore seem to entail any risk for the applicant who had declared in his letter that he was leaving Roche in autumn 1973 to go to Italy, near Rome. In early April 1975 after the applicant's release he had a meeting with Mr Pappalardo, Mr Rihoux and Mr Carisi in the course of which they tried to work out how the applicant could have been identified. Mr Pappalardo stated expressly on that occasion that during their visit to the Roche subsidiaries in October 1974 copies of the documents had been passed to Roche staff.

Mr Kohlhase, former director of the Commission Representation in Geneva, explained that he had been called to Brussels on 27 January 1975 at Mr Schlieder's request. Mr Schlieder explained to him that the Commission had received an anonymous letter stating that the applicant had been arrested and he requested Mr Kohlhase to contact Dr Alder in order to obtain confirmation of that information. The following day Mr Kohlhase therefore met Dr Alder and asked him directly whether it was true that the applicant was in prison, which Dr Alder confirmed immediately.

Finally, Mr Mensching, Mr Schlieder's assistant from August 1975, explained that the Commission's intention had been at that time to assist the applicant in every possible way. With Dr Portmann, the Commission discussed inter alia the question of to what extent the Free Trade Agreement might usefully be relied on before the Swiss courts. Mr Mensching believes that he recalls that the Commission sent the applicant a translation of the judgment of the Basle Court of Appeal.

At the sitting on 21 May 1985, the applicant, represented by Mr D. Vaughan, and the Commission, represented by Mr J. Lever, presented oral arguments.

At the sitting it was stated on behalf of the applicant that the Commission had acted in breach of the duty of confidentiality since it owed to him in particular on three occasions. In the first place the disclosure of the copies of the documents to the Roche employees in October 1974 enabled Roche to deduce therefrom that in all probability the applicant was the Commission's informant. Secondly the Commission failed to warn the applicant of the risk that he would inevitably run if he returned to Switzerland, although it was its duty to do so, 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. Dr Alder told the Commission officials that Roche was considering the possibility of criminal proceedings against the informant and even explained the content of the relevant provision of the Swiss Penal Code. Thirdly and finally, the applicant was named as the Commission's informant in February 1975 by Mr Schlieder.

The Advocate General delivered his Opinion at the sitting on 11 July 1985.