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that the decision of 17 October 1972 to commence disciplinary proceedings be declared null and void;

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that the disciplinary proceedings and the opinion of the Disciplinary Board of 4 July 1973 be declared null and void;

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that the medical report of 21 November 1974 be declared null and void;

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that the hearing of the applicant on 29 January 1975 be declared null and void;

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that the decision of 24 February 1975 to dismiss her be declared null and void and that it be found that the applicant continued from 1 March 1975 in the employment of the Council as an official in Grade C 3.

1.

First an objection to the admissibility of the application must be dealt with. The Council considers all the claims inadmissible, apart from the one relating to the decision to dismiss the applicant. As regards the bringing of the disciplinary proceedings it relies on the fact that no complaint was made within the time limit prescribed in the Staff Regulations. With regard to the remaining claims it refers to the legal nature of the acts concerned and alleges that in so far as Article 90 of the Staff Regulations is concerned these are not acts of the appointing authority but simply preparatory measures.

My impression of this is that the objection in truth has been settled. I say this because the reply speaks only of an application for the annulment of the decision to dismiss the applicant and for a declaration that she continued in the employment of the Council after 1 March 1975. With regard to the remaining claims criticized by the Council, they are obviously used as supporting material for the claim and there is certainly nothing objectionable in this.

If this interpretation is not correct I must substantially agree with the Council. It is true I would not go as far as not to allow a challenge to the bringing of the disciplinary proceedings, which is without doubt a measure adversely affecting the person concerned within the meaning of the Staff Regulations. This would not be in accord with the sensible tendency which emerges from the case-law to avoid a multiplicity of actions and, where an act concluding proceedings is contested, to allow preparatory measures to be included in the action. However, I consider the Council to be correct in thinking that an independent application for annulment of the other contested measures and the formulation of separate claims in respect of them is not possible. The criterion is that on their own they are not measures adversely affecting the person concerned within the meaning of the case-law but are only of a preparatory nature; in particular they in no way originate from the appointing authority. On this, reference may be made in particular to the judgment in Case 35/67 (Van Eick v The Commission of the European Communities [1968] ECR 329) which contains such a ruling. Therefore if the other claims have not been dropped by the applicant it must be held that they can be considered only as supporting material in connexion with the challenge made to the measure terminating the proceedings. This would, moreover, adequately protect the applicant's interests for if the action were successful, that is if the decision to dismiss her were annulled, the grounds of the judgment would show clearly which parts of the procedure were defective and needed to be repeated.

2.

A first ground of claim, to which I now turn, relates to Article 59 (3) of the Staff Regulations. The applicant infers from this and from the fact that she has produced medical certificates with regard to her inability to work that the appointing authority was obliged to bring the matter before the Invalidity Committee before she was reproached for her unauthorized absence and before disciplinary proceedings were brought.

I can deal with this question relatively briefly. In my opinion the interpretation of Article 59 (3) causes no difficulties. When it says that cases in dispute shall be referred to the Invalidity Committee for an opinion it is clear that this refers solely to paragraphs one and two. Both paragraphs are concerned however only with sick leave, that is inability to work and absence from work and not with the question whether an official can do certain work and not whether a relevant assignment to a post is lawful. This view was also held to be correct in Joined Cases 58 and 75/72 and this is of special interest since that case was concerned with the legality of the posting of the applicant and the stopping of the salary payment due to unauthorized absence from the service under Article 50 of the Staff Regulations. If that is possible without previously involving the Invalidity Committee the same must also be true of bringing disciplinary proceedings. It should not be overlooked in this respect that Article 60 itself refers to disciplinary measures that may apply and that moreover in the disciplinary proceedings in question here no other complaints were made save non-compliance with the duty to obey (Article 21 (3) of the Staff Regulations) and disregard of Article 55 of the Staff Regulations according to which officials in active employment shall at all times be at the disposal of their institution.

Against this it does not matter that later after the conclusion of the disciplinary proceedings a medical board was established on the lines of the Invalidity Committee; further it is irrelevant that such a committee acted outside the scope of Article 59 in another case (Case 31/71 Gigante v Commission of the European Communities [1975] ECR 337). What is important is that the Disciplinary Board did not recommend that the Invalidity Committee should be brought in but only that there should be a medical examination. Further it is obvious that the actual examination which took place inter partes did not have its origin in an obligation arising from the Staff Regulations. The same is true of Case 31/71. There, too, there was no necessity to put the matter to the Invalidity Committee but the Commission with the applicant's agreement considered it expedient solely for the purpose of elucidating objectively certain disputed medical questions.

Thus there cannot be said to be an infringement of Article 59 (3) of the Staff Regulations or disregard of a similar established practice in the present case.

3.

A second ground of claim is that the Disciplinary Board was no longer complete after its third meeting, that is from 5 December 1972, and its opinion was not therefore signed by all members. The applicant considers this such a serious defect that she regards the opinion of the Disciplinary Board as unlawful and cannot therefore constitute the basis of the disciplinary decision taken.

In considering this objection which must certainly be given considerable weight it must first be ascertained what may be gathered from the relevant provisions on the composition of the Disciplinary Board, the conduct of the disciplinary proceedings and the opinion to be delivered by the Disciplinary Board.

Article 4 of Annex 2 to the Staff Regulations thus provides that the Disciplinary Board shall consist of a chairman and four members. Article 5 provides that the appointing authority shall appoint the chairman; two of the members are drawn from a list which the appointing authority draws up and the two others from a list for which the Staff Committee is responsible. It is expressly laid down in this provision that the official charged may make objections in respect of any members of the Board other than the chairman and that any member may be asked to be excused from serving, provided he has legitimate grounds. If this happens then the second paragraph of Article 5 (3) provides that the chairman shall, by drawing lots, fill the vacancy. With regard to the proceedings, Article 7 of Annex IX provides that the Disciplinary Board shall deliver an opinion by a majority vote. Of importance also is Article 8 which provides that the chairman shall not vote on matters before the Board save on procedural questions or in case of equality of votes. Further Article 9 provides that the reasoned opinion shall be signed by all members of the Disciplinary Board.

In my opinion this shows clearly, and in this the applicant is right, that the Disciplinary Board is correctly constituted only if it has five members and its opinion is basically the responsibility of the majority of the four members who are drawn from the said lists. In support of this reference may be made to the fact that the opinion must be signed by all the members including the members within the meaning of Article 4 of Annex II. In this connexion it is also important to note that provisions have been considered necessary with regard to filling any vacancies on the Disciplinary Board. This means, in my view, that the Board must always be complete. Nor is there any ground for considering this provisions to be restricted to cases of objections to members or requests to be excused from serving, quite apart from the fact that in the present case the fifth member apparently withdrew because of pregnancy leave — since this was foreseeable recourse ought to have been had from the start, because this was foreseeable, to Article 5 (3) of Annex II. Furthermore, reference may be made to the previous case-law on this subject. Thus in Case 46/72 (De Greef v Commission of the European Communities [1973] ECR 543) the parity composition and the necessity to reach majority decisions on this basis was stressed. Logically this can mean only that as many members from the staff side as from the administrative side must take part and since if only one member from each side takes part there can be no majority, this means that all four members must take part in the decision.

Owing to the absence of a member at a particular stage in the procedure it can no longer be said in the present case that the Disciplinary Board was correctly constituted. It must also be recognized that the provision according to which the chairman should vote only in case of equality of votes was disregarded.

Nor is it possible by way of justification to turn, as was attempted, to related rules of French and Belgian law making other provisions where a member of a disciplinary board is absent. It appears that in French law, in the absence of express provisions on a quorum, it is sufficient if one more than half the members are present, that is to say, in the absence of a representative from the staff side it is considered correct that a member of the other side should also withdraw. It is apparently sufficient under Belgian law that at least half the members are present and it is moreover considered necessary that representatives of the Ministry and the trade unions are present in the same numbers. These references could be significant to us only if there were no Community provision on the matter and a clear solution to the present problem did not follow from its wording and context. The same applies to the reference to the fact that for the Joint Committee in Article 3 of Annex II to the Staff Regulations it is expressly provided that the proceedings shall be valid only if all members are present. Apart from the fact that it is always necessary to be careful with arguments a contrario, I consider such an argument a contrario not valid in relation to the Disciplinary Board because it cannot come into consideration under the general system which manifestly governs the Disciplinary Board and which has just been referred to.

Whether, from the fact that the Disciplinary Board was not properly constituted and that the chairman improperly took part in the decision, the other conclusion must follow, namely that the opinion of the Disciplinary Board is wholly invalid and the disciplinary decision based on it is unlawful cannot, in my opinion, be said without further consideration.

Although it is true, as was stressed in Case 35/67 (Van Eick), that the Disciplinary Board must have regard to the basic principles of procedural law, such as in the hearing of witnesses, and even if it must be admitted that in the finding of the facts and perhaps also in determining the disciplinary decision which must be ultimately taken by the appointing authority the Board has considerable weight, it must nevertheless not be forgotten that we are concerned only with an advisory body whose proposals are not binding. If this important characteristic is borne in mind, then in assessing defects such as those in the present case significance may be attached to the fact that the applicant's legal advisers did not make an appropriate objection before the conclusion of the disciplinary proceedings (the Council pointed this out without being contradicted). Such conduct in national procedural law, at least in cases of minor infringements; excludes any subsequent objection (cf. for example Eyermann-Frohler, Kommentar zur Verwaltungsgerichtsordnung, Note 17 to Article 137).

Further, and this is even more important, it is necessary to recall the Council's remark that there was no reference in the opinion to a dissenting view but that on the contrary members of the Disciplinary Board have confirmed that the opinion was reached unanimously. If in these circumstances one considers what the probable outcome of the proceedings would have been had the Disciplinary Board been fully constituted, there is nothing to indicate that there could have been any other result. If it is assumed that the fourth member (who incidentally was drawn from the list provided by the administration) who was absent as from a particular time had adopted a dissenting opinion, then there nevertheless remained a sufficient majority of three votes to carry the opinion. If it is further assumed that this member — I do not know whether it is at all possible to speak of a probability on this point — may have won a further member to his view, then there would have been an equality of votes and in this case the vote of the chairman, who likewise signed the proposal, would have been decisive. In addition, let me say again, it should not be overlooked that the appointing authority is not bound by the opinion of the Disciplinary Board in so far as the proposal with regard to the sanction is concerned. In view, however, of what has emerged from the proceedings on the assessment of the applicant's conduct — she has shown herself quite obstinate on repeated occasions, such as in relation to the offer of another occupation — there is not the slightest ground for assuming that a disciplinary decision would have been different even if there had been a different proposed sanction by the Disciplinary Board.

All this brings me, although let me stress once again I am of the opinion that the rules governing the constitution and procedure of the Disciplinary Board are not to be lightly disregarded, to the conclusion that the defects mentioned do not justify the opinion of the Disciplinary Board being declared invalid and the disciplinary decision based on it annulled for want of a proper basis.

4.

I come then to a further ground of claim which relates to the medical report of 21 November 1974 which is likewise important with regard to the decision to dismiss the applicant. Three objections were made to this:

The following observations are called for on this argument:

5.

It thus remains to consider the last objection that when the applicant was interviewed by the Secretary-General of the Council on 29 January 1975 her counsel was not allowed to express his views.

6. 

Accordingly, all that remains for me to do is to propose that the application should be dismissed in toto as unfounded and that a ruling on costs should be made in accordance with Article 70 of the Rules of Procedure.