Opinion of Mr Advocate General

Mr President,

Members of the Court,

1. Facts and procedure

I can see no way of abbreviating the essential points in the extensive file on this case any further than has already been done in the Report for the Hearing. Accordingly, I shall begin by incorporating in my Opinion the outline of the facts and the procedure set out in the Report for the Hearing which I endorse in its entirety.

1.2. Facts

On 14 January 1983 the President of the European Parliament informed Mr de Compte, who was at the time an official in Grade A 3 employed as an accountant at the European Parliament, of certain facts which might lead to the institution of disciplinary proceedings against him.

On 28 January 1983, pursuant to Article 87 of the Staff Regulations of Officials, the Director General for Administration, Personnel and Finance of Parliament invited Mr de Compte to submit his views on the matter in question.

On 13 April 1983, pursuant to the second paragraph of Article 87 of the Staff Regulations, the President of the European Parliament submitted to the chairman of the Disciplinary Board a report concerning the allegations made against Mr de Compte, an accountant and head of division at the Parliament. The Disciplinary Board met on several occasions between 2 June 1983 and 10 February 1984.

On the latter date the Disciplinary Board proposed by three votes to two that Mr de Compte should be reprimanded. The two members who did not support such a measure were in favour of simply dismissing the charges against him.

Pursuant to the final paragraph of Article 7 of Annex IX to the Staff Regulations, Mr de Compte was given an opportunity to submit his views on 8 March 1984 to the President of Parliament in his capacity as the appointing authority.

On 16 March 1984 the President of Parliament decided to remove Mr de Compte from his post as a disciplinary measure without a reduction or withdrawal of his pension rights. The decision stated in extenso the reasons on which it was based.

On 21 March 1984 Mr de Compte submitted to the President of Parliament, under Article 90 (2) of the Staff Regulations, a complaint against the decision of 16 March 1984 removing him from his post. A supplementary complaint was submitted on 11 April 1984.

On 10 April 1984 Parliament, by a substantial majority, granted a final discharge to Mr de Compte in respect of the 1981 financial year (the financial year in question).

On 24 May 1984 the President of Parliament, in response to the two complaints, decided that instead of being removed from his post Mr de Compte should be demoted to Grade A 7, Step 6. That decision was based on the grounds relied upon in support of the initial decision to remove Mr de Compte from his post.

1.3. Procedure and conclusions of the parties

2. Submissions and arguments of the parties

2.1. Introductory remarks

In accordance with the abovementioned procedural decisions, I shall consider in my Opinion only the six submissions in which the applicant challenges the legality of the disciplinary proceedings. I shall deal with each of those submissions in turn and, in order to save time, I shall not begin with an outline of all the issues. I shall not discuss or even refer to the applicant's four submissions concerning the reasons stated in the contested decision and the question whether it is well founded. In my view, those four submissions are not even indirectly relevant to the appraisal of the first six submissions. However, I do consider it important to incorporate in my Opinion certain introductory remarks taken from the Report for the Hearing which are set out below together with some comments of my own. Those remarks, which I fully endorse, are concerned with Parliament's response to the applicant's submissions as a whole during the written procedure. From its response I infer that during the written procedure Parliament wished above all to help clarify the complicated factual background to the case. According to the introductory remarks in its defence which are referred to below, on the question whether the complaints relied upon by the applicant, and in particular those relating to the substance, are in fact well founded, Parliament defers to a large extent to the judgment of the Court. However, Parliament has also largely confined its actual defence to the six submissions of the applicant concerning procedural irregularities to oral argument at the hearing.

The introductory remarks which I have incorporated in my Opinion are as follows:

2.2. First submission

In his first submission the applicant maintains that the disciplinary proceedings are inadmissible for infringement of the non bis in idem rule embodied in Article 86 of the Staff Regulations. In his view Article 86 (3), which provides that a single offence shall not give rise to more than one disciplinary measure, also prohibits two disciplinary proceedings being brought in respect of related facts. The applicant considers that his transfer in May 1982 on account of the irregularities with which he is now charged was itself also to be regarded as a disciplinary measure.

In my view, this submission must be rejected. In the first place, the European Parliament has rightly pointed out that a transfer (not affecting grade) is not included in the list of disciplinary measures in Article 86 of the Staff Regulations. It follows in my view from Article 7 of the Staff Regulations itself that transfer cannot in principle be regarded as a disciplinary measure. Article 7 makes it clear in particular that an official may in principle at any time be transferred in the interests of the service to a post which corresponds to his grade, whether at his own request or otherwise. Finally, at the hearing the applicant did not dispute that he consented to the transfer.

2.3. Second submission

In his second submission the applicant maintains that at the preliminary hearing, which constitutes the first stage of the disciplinary proceedings and which is provided for by Article 87 of the Staff Regulations, the appointing authority cannot, as Parliament did in this instance, designate an official to deputize for it, even if he is assigned the necessary powers.

After the European Parliament had referred to the judgment of 8 July 1965 in Joined Cases 27 and 30/64 (Fonzi v Commission [1965] ECR 481) in which the Court expressly declared that such a procedure was in conformity with Article 87 of the Staff Regulations, the applicant made no further reference to this submission. On the basis of that judgment, I also consider that this submission must be rejected.

2.4. Third, fourth and fifth submissions

I intend to deal with the next three submissions together since they all allege infringements of the right to a fair hearing.

2.5. Sixth submission

In his sixth submission the applicant maintains that the Disciplinary Board wrongly refused to suspend its proceedings pending the outcome of the administrative inquiry which was being conducted at the same time by Parliament's Committee on Budgetary Control. He contends that unlike the Disciplinary Board, that committee carried out a detailed inquiry which discharged the accounting officer (the applicant in these proceedings) from any responsibility.

In its written observations Parliament refers to the interim order made on 3 July 1984 by the President of the Third Chamber of the Court which in its view shows that the final discharge procedure, which is intended to determine whether the accounts have been duly drawn up and are accurate and which was the subject of the inquiry conducted by the Committee on Budgetary Control, is different from disciplinary proceedings which concern the responsibility of the accounting officer.

In my view, it is impossible to draw an unequivocal conclusion from paragraph 11 (2) of the order as regards the question whether or not the Disciplinary Board should have suspended its proceedings pending the outcome of the inquiry conducted by Parliament's Committee on Budgetary Control.

However, since the applicant made no further reference to this submission at the hearing, I propose that the Court should not base its judgment upon it either.

3. Conclusion

To summarize, I consider that the fourth and fifth submissions of the applicant concerning the legality of the disciplinary proceedings are well founded. Moreover, I consider that the procedural defects in question are so serious that the contested decision should, in accordance with the first alternative claim in the application, be annulled on the basis of those submissions. Accordingly, the European Parliament should also be ordered to pay the costs.

The submissions and arguments of the applicant on the substance of the case, including the claim that the Court should take formal note that the applicant reserves the right to claim at the appropriate time and place the damages to which he is entitled as a result of the libels and smears to which he has been subjected in the national and international press should not be considered at this stage of the proceedings.

1 Translated from the Dutch.

2 It is apparent, however, from Parliament's written answer to a question put to it by the Court during the oral procedure, that the transcript of the last hearing was not sent to the applicant until 6 February 1984 by internal mail. According to the statement made by his representative during the oral procedure, the applicant did not receive that transcript until after 10 February 1984, that is to say after the date on which the Disciplinary Board delivered its opinion.