Luxembourg, 08/03/2001 (Agence Europe) - The "right to remain silent" of companies in competition cases, British citizenship and European citizenship, difficult access to documents of the European Central Bank were the subjects of decisions taken by the European Court of Justice and the Court of First Instance (CFI).
The Court sat in plenary session, sign of the importance of the case, to rule on the fate of an Asian woman born in Kenya in 1949. British citizen at the time, Manjit Kaur had her passport removed of substance when, in 1971, the United Kingdom withdrew the right of abode on its territory for British overseas citizens.
For the Court, the United Kingdom alone had the right decide who its citizens were. This thesis is also that of the Commission and the German, French and Italian Governments which backed the United Kingdom. Their thesis was that, under international law, all States "have the exclusive right to determine the categories of persons who must be considered as citizens".
Ms. Kaur and her lawyer, Richard Drabble QC, backed by the British Justice Association, claimed that British legislation violated fundamental rights as it deprived Britons on Asian origin the right to enter the territory of a State of which they were nationals. One of their arguments was also to say that, as British, Manjit Kaur had the right to move in the EU and that France and Holland had to let her enter as British citizen, thus European, without seeking to know what this term covered in English law.
The United Kingdom recalled the importance it attached to the case, given its "colonial past" and recalled that it had amended its code on nationality in 1971 and then again in 1982. The Court pointed out that at the time of the united Kingdom's accession to the EC, Member states were concerned at knowing who would benefit from the freedom to move freely within the European Community. In a 1972 declaration annexed to the treaty and taken up again in 1982, the British Government defined who were full citizens. More or less, "stricto sensu" British, plus those with the right of abode and the British of Gibraltar.
Mannesmann/"Europe-Japan-Club" case
Before the European Court of First Instance (CFI), the manufacturer of steel piping, Mannesmannrohren-Werke secured recognition of its "right to remain silent" in European Commission "competition" investigations. It did not have to answer certain European Commission questions on what was said or done in meetings between European and Japanese manufacturers of steel piping. The Court of First Instance, over which Bo Vesterdorf presided, says that since the 1989 Orkem ruling, the Court of Justice had recognised the right of companies to remain silent when providing answers that would amount to admitting the existence of an infringement, whereas it is up to the Commission to prove its existence. Companies must, however, answer all requests for information of a purely factual nature and hand the Commission existing documents.
Mannesmannrohren Werke had taken part in "special circle" types of meetings, between European manufacturers, and within what the profession calls the "Europe-Japan Club". Suspected of concerted agreement over the price of steel piping, the manufacturers had been subjected to a questionnaire by European competition inspectors. The latter had asked them the date, names and companies that took part in each meeting, as well as the different agendas, minutes and internal notes. "For those meetings for which you do not manage to find the relevant documents, please describe the subject, decisions taken, and the type of documents received before and after the meeting", the Commission's inspectors had asked. Faced with a refusal by the German firm, in May 1998 the Commission had demanded it comply, together with a 1000 euro fine per day late.
Mannesmannrohen, defended by Martin Klusmann and Karlheinz Mooseker, must hand in the factual documents but is not obliged to describe the "subject of the meetings" in which it participated. A defeat for the Commission, according to which "the Court manifestly did not recognise the existence of the right not to testify against oneself", in the Orkem case.
"Excusable" error, citizens' come-and-go between institutions
This same Chamber of the CFI, on the other hand, rejected the appeal of a Greek lawyer, Athanasios Pitsiorlas, who, for his doctoral thesis at the University of Thessaloniki, had asked the EU Council for a copy of the so-called "Bale/Nyborg" agreement on strengthening the European monetary system, endorsed by Member States in Nyborg, Denmark, on 12 September 1987.
The appeal is inadmissible because it was lodged outside the two-month deadline provided for to challenge a decision of a European institution, says the CFI. Something the lawyer disputed, considering himself the victim of "trickery on the part of the European institutions concerned". He explained that he had been incited not to challenge the refusal of the EU Council immediately, while waiting for a reply from the European Central Bank to his request for documents.
The EU Council had indeed advised him to address himself to the European Central Bank to obtain what was a report by the Governing Council. In November 1999, the ECB refused him access to the documents. The lawyer turned against the EU Council rendering it responsible for his coming-and-going between the two institutions, and took the case to the CFI. His lawyer and colleague assisting him, Dimitris Papafilippou, acknowledged that the deadline had passed, but invoked "excusable" error.
This case provided the CFI with the opportunity to recall case law, not used much, on excusable error: in exceptional circumstances, the European citizen may lodge an appeal outside the deadlines, if the Community institution conducts itself in such a way as to cause admissible confusion in the mind of someone of good faith.
The CFI considers this not to be the case here: when it rejected his request because the administrative documents of the EMS "have never been part of Community law" and were therefore not in its possession, the EU Council had stipulated that Mr. Pitsiorlas had two months to challenge this refusal, the European judges explained.
The case goes on. The CFI implicitly acknowledged that the legal action of the Greek judge against the refusal of the European Central Bank to communicate to him the documents had been lodged within the time allowed. The appeal will therefore be the subject of another CFI decision.
Worth noting that Athanasios Pitsiorlas had asked the CFI to be granted free legal aid, which was turned down.
Tax uncertainty of an official
Finally, the first Chamber of the CFI has just sentenced the European Commission to pay BEF 35,000 to a European official, Girish Ojha, in damages for the moral injury he suffered following difficulties encountered when, back from Bangladesh where he had been posted, he had wanted to import his car duty free. The CFI states that the Commission contributed in maintaining Mr. Ojha in a state of uncertainty and worry for two years regarding the tax situation of his vehicle.