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.