1.

The argument which he bases upon the provisions governing the conduct of the disciplinary proceedings has, in his eyes, a particular importance. As you know the third paragraph of Article 7 of Annex IX to the Staff Regulations provides that the appointing authority shall take its decision within one month, after receiving notification of the opinion of the Disciplinary Board. The applicant considers that this is a provision which must be construed strictly, and therefore one which lays down a period of limitation comparable to those which apply to the institution of proceedings before a court. Disciplinary decisions can no longer be taken once this period has expired and those which have been taken in these circumstances must be declared void. This also has the effect of invalidating the whole of the disciplinary proceedings including the opinion of the Disciplinary Board. In the present case such a result is inevitable, since the said period of one month began to run either on 26 June 1967 (the date of the notification of the opinion of the Disciplinary Board to the Commission) or on 15 July 1968 (the date of the notification of the judgment of 11 July 1968 of the Court of Justice concerning the first disciplinary decision). There is thus no doubt that we are faced with a very difficult problem. The interests involved themselves constitute a source of difficulties. It must be accepted on the one hand that officials who are involved in disciplinary proceedings have the legitimate right to have the proceedings terminated as rapidly as possible. I have already emphasized that in my opinion in Joined Cases 18 and 35/65 [1966] ECR 103 and it appears clearly from the various periods stipulated in Article 7 of Annex IX to the Staff Regulations. On the other hand it must also be accepted that the period of one month mentioned by the applicant may cause considerable difficulty to the appointing authority and particularly to the Commission which is the appointing authority for officials in Category A. It is within this period that the person concerned must be heard, which requires certain preparations which are also of a technical nature; it is necessary, further, in connexion with the hearing, to conform to a certain time-limit for the purpose of inviting the applicant to appear when, as is the situation in the present case, he is not actively employed with the Commission. Thereafter the final decision has to be taken, often on an extensive range of facts and after difficult evaluations. All that must, further, be carried out at the same time as a programme of work the extent of which, it may be said, above all in the case of the Commission, is always considerable. It should therefore not be a matter of surprise that the Commission inclines to the view that the term laid down in Article 7 cannot be mandatory. I must admit, further, that it is hardly possible to resolve our problem by the comparative study of similar rules. That applies in the first place to the remarks I made in the Gutmann case [1966] ECR 103 concerning the time-limit under Article 88 of the Staff Regulations. One would find on reading them that I said nothing concerning the nature of the period applicable to a measure suspending an official and that I confined myself to stating that the expiration of this period would not exclude investigatory measures, that is, measures which do not relate to the suspension itself. One cannot consequently use arguments based on that passage in the present case. In national law a series of provisions appears at first sight to support the argument of the Commission that the period laid down in Article 7 of Annex IX to the Staff Regulations is an ordinary term which is not of strict application. In fact as a general proposition one may regard time-limits applicable under national law to the actions of administrative authorities or judicial bodies as being non-mandatory or so-called ‘apparent’ time-limits (uneigentliche Fristen) and only very rarely as periods of limitation. I would refer on this subject to the ‘Traité élementaire de droit administratif’ by André de Laubadère (3rd Edition, Vol I, No 460). In a comparative study the Commission arrived at similar conclusions as regards criminal law, which is related to disciplinary law (p. 8 of the statement of defence). Concerning disciplinary law properly so-called, one arrives at an analogous finding by studying German law which on this point is strongly formalistic in character as I have already emphasized. According to paragraph 66 of the Bundesdisziplinarordnung, the charge must in fact be notified to the official concerned within a period of six months from the notification of the measure initiating the proceedings. However the legislature has stipulated expressly that failure to comply with this term shall not automatically bring the proceedings to an end and that, on the contrary, the proceedings shall only be terminated by the Federal Disciplinary Court (Bundesdisziplinargericht) after it has set a new time-limit and found that there has been undue delay in conducting the proceedings. Lastly we may also refer, as the Commission has done, to Italian law which provides expressly, in case of expiry of a particular period, that disciplinary proceedings cannot be re-opened (see Article 119 of the ‘Testo unico delle disposizioni concernenti lo statuto degli impiegati civili dello Stato’ — Decree No 3 of the President of the Republic of 10 January 1967). These considerations could in fact lead to the conclusion that the term applicable under our disciplinary law in the present case is not a strict period of limitation. It appears to me however doubtful that the considerations set out above are of compelling force. First it must not be forgotten that even administrative and judicial authorities may be required to conform to genuine periods of limitation and that this depends solely on the question whether ‘le texte en question a entendu donner au délai un caractère impératif ’ (“the provision in question was intended to impart to the period a manda tory character”), as Laubadère states (op. cit.). In order to reply to that question it is necessary first to accept that the examples which the Commission takes from criminal law can hardly be regarded as being decisive in the present case. It is in fact frequent in criminal law, and particularly according to the drafting and the reading of judgments, that the actual wording of the applicable provisions indicates that they are not peremptory. Apart from that the interests involved are also different. It would clearly be illogical to exclude decisions given on appeal after the expiration of a certain period of time, given that this would be equivalent to a denial of justice. Further, the fact that there are rules of limitation in criminal law raises the presumption that the time-limits relied upon are strict time-limits. Concerning the example of Italian law, let us note that it can never by itself justify an argument a contrario and that is so because, to define the character of the time-limit which it has decided to lay down for an administrative authority, the legislature has at its disposal means other than the explicit indication of the legal consequences. To decide our case, we need thus to keep above all to the actual wording of Article 7 of Annex IX to the Staff Regulations. The categorical form which we find therein appears to be fundamental. Article 7 (German version) provides in fact: “Die Anstellungsbehörde hat ihren Beschluß innerhalb einer Frist von höchstens einem Monat zu fassen”. The unambiguous form of the versions in the other languages corresponds also to that, the French text saying “dans le délai d'un mois au plus” and the Italian wording for its part “nel termine massimo di un mese”. To that is added also the fact that the Court has already emphasized in Case 35/67 (Rec. 1968, p. 504) that it is a matter of a “strict requirement of law”. The fact that it has further stated that no objection can be taken to the procedure before the Disciplinary Board and the opinion of the latter (from which the Commission has properly concluded that it could continue the disciplinary procedure on that basis) provides no argument that the time-limit in Article 7 is purely indicative. The implied finding of the Court of Justice, of which I have spoken, may in fact mean also that after an annulment of the decision of the Commission for formal reasons, thus after the clarification of the disputed question of procedural law, the Commission may so to speak re-open the procedure, as also is provided in national law in similar cases (I can refer on this subject to an order of the Bundesverwaltungsgericht (Federal Administrative Court) of 14 March 1957, reproduced in Verwaltungsrechtsprechung, (Reports of Cases before the Administrative Court), Volume 10, No 189). Applying by analogy the principle which was stressed in Case 6/60 (Rec. 1960), one may also argue that in the interpretation of provisions which are clearly intended to protect individual interests, it is necessary to prefer the interpretation which ensures that protection most effectively. But in our case this undeniably means accepting that the period laid down in Article 7 is a strict period of limitation and further that failure to observe it does not justify merely an application for damages (difficult to achieve as a general rule) but involves the nullity of the decision taken by the appointing authority. It would thus appear that it is necessary to accept the conclusion which the main argument of the applicant suggests that we should deduce. The considerations which I have just set out do not however in themselves make this conclusion inescapable. In fact with regard to the difficulties mentioned at the beginning of my opinion and which the administration may experience in a given case, it is necessary at least to allow proof to be given that for pressing reasons it has not been possible for it to conform to the time-limit fixed by Article 7, that is, it is necessary to consider whether there is a case for the Commission to restore the original state of affairs, as is generally possible in the case of accident or of absolute necessity. In this connexion I would recall the following facts. The notification of the Court's judgment, from which one may regard time as having commenced running, was given on 15 July 1968. After that the applicant received a letter from the Commission dated 1 August 1968, in which it was said that the question of his reinstatement was being considered. On 3 October 1968, there was a meeting between the applicant and the Director General of Personnel and Administration, the essential purpose of which was apparently to induce the applicant to resign voluntarily. On 13 November 1968, the Commission entrusted three of its members with hearing the applicant in accordance with Article 7 of Annex IX to the Staff Regulations. That hearing should have been held on 10 December 1968. As the applicant was not present, the decision which is the object of the present application was taken on 18 December 1968. The Commission justifies the fact that it let such a long time pass between the notification of the judgment and the conclusion of the disciplinary procedure by maintaining in essence that the period had begun to run at the beginning of the holidays and that within the framework of the duty of assistance which was incumbent upon it it wished first of all to give its official the possibility of resigning and that further it was occupied at the time by the restructuring of its administration. Let us see therefore whether it is possible to justify it because of the fact that its decision was taken only five months after the notification of the judgment of the Court. I will anticipate the reply: it appears that we cannot follow the Commission in its conclusions. First of all its reference to the holiday period is not satisfactory. It is certain that the Commission cannot defer the disposal of important and urgent matters because of holidays and according to the unequivocal definition of the Staff Regulations decisions on disciplinary matters are important matters. The same applies to the discharge of the duty of assistance which, as the applicant has rightly observed, becomes precisely the reverse when the appointing authority delays too long in concluding disciplinary proceedings. It could be different only in respect of the restructuring of the administrative organization which the Commission was required to make following the merger of the executives. However on this point we find that on 3 October 1968 it had a meeting with the applicant concerned with regularizing his administrative situation. Consequently the administration must already have finished the preparation of the case at that time and the applicant's file must have been ready for the disposal of the matter. The necessary steps for continuing and concluding the disciplinary proceedings could consequently have been taken at the latest, during the following weeks. Even taking an indulgent view it cannot therefore be accepted that this was only done in December 1968. My conclusion is therefore clear: if the wording of the Staff Regulations is not to lose all meaning, there can in fact be only one conclusion, namely that the Commis sion did not pursue the disciplinary proceedings commenced against the applicant with the necessary despatch. That requires the annulment of the decision taken in December 1968, in accordance with the request of the applicant. I will consider later the further consequences which follow from this as regards the disciplinary proceedings.