5.

The irregularities revealed by the Court's investigation thus amount to three at least: the electors were not notified in good time of all the details of the voting procedure and in particular they did not know until the last minute that if they used anything other than a felt-tipped pen their vote would not be recorded by the machine; in spite of this the results of the count by the machine were not checked and in this matter only the papers rejected by the machine were counted by hand, so that a large number of votes marked with a ball-point pen on ballot-papers which the machine had not rejected were not recorded; the number of voters announced by the tellers does not coincide with the number of ballot-papers retained from which it may be inferred either that the count of voters was inaccurate or that ballot-papers have been lost. Naturally all these circumstances have had serious effects upon the composition of the list of successful candidates: the list amended in terms of the results of the recount includes the names of two candidates who obtained enough votes for election instead of two other persons who were declared elected; however if all the votes counted in 1975 by the tellers, eight hundred and eighty instead of eight hundred and fifty-one, had been available, the results might possibly have differed further. What are the principles and rules in terms of which these irregularities must be appraised? In its interlocutory judgment of 29 September 1976 the Court of Justice referred to the few provisions which Article 1 of Annex II to the Staff Regulations devotes to the election of members of the Staff Committee (in particular to the fact that election shall be by secret ballot, the representation of the various categories of officials and what constitutes a quorum for the validity of elections); and observed: ‘Even though these provisions are incomplete, taken as a whole they show that they were intended to ensure that the Staff Committee is representative. Such a representative character can only be ensured by means of elections the legality of which is guaranteed at all stages of the election proceedings.’ The same judgment also laid down a principle on which the judgment in this case turns: the responsibility of the institution (in this case the Parliament) when the election of the Staff Committee is open to dispute, a responsibility which follows from Article 9 (2) of the Staff Regulations ‘and, in general, from the power of organization which each institution exercises within its own sphere of jurisdiction and from its duty to ensure that officials have complete freedom to choose their representatives in accordance with democratic rules’. The reference to the ‘rules relating to freedom and democracy common to all the Member States in matters of electoral law’ is repeated at another point in the grounds of judgment (No 25) of the same judgment. In my view this guide-line must be affirmed and applied to the appraisal of the substance of the case. The first question to be asked is accordingly this: has the Parliament performed its duty of guaranteeing for its employees free, democratic and lawful elections? It seems to me that the answer must be in the negative. The irregularities found by the inquiry conducted by the Court could and should have been discovered by the President of the Parliament to whom ten officials submitted a complaint on 5 May 1975; at least a re-examination of the results of the ballot should have been ordered and this would have revealed either the gross negligence of the tellers or the consequences thereof, a miscount of the votes and thus a wrong declaration of the candidates elected. The second question is, which general electoral principles have been violated? First, the rule that all the electors must know precisely and in good time the procedure for casting their votes in order that those votes may make a valid contribution to the results of the elections; secondly the elementary principle that the count must be reliable and thorough; thirdly the principle according to which the material used for the elections, especially the ballot-papers, must be carefully conserved after the ballot and counting throughout the period during which complaints may be submitted by the electors so that an administrative or judicial review of the results of the elections may be carried out. Finally, the third question is: what consequence must be drawn from the violations which have been established? In my view if the irregularity of the voting procedures or of the count falsifies the result of the election the latter must be declared void: it is in fact essential for the result to constitute a faithful reflexion of the wishes of the electorate. In this connexion the legislation and the case-law of many Member States are in agreement: I shall merely recall the judgment of 26 November 1954 of the French Cour de Cassation Civile (Bulletin des Arrets de la Cour de Cassation 1954, p. 254), the decision of 1 April 1971 of the Belgian Conseil d'État in the case of El. Liege (Recueil des Arrets et Avis du Conseil d'État 1971, p. 399) and the judgments cited by J. R. Vervloet, in ‘Le Contrôle Judiciaire des Elections Sociales’ (Journal des Tribunaux du Travail 1973 at p. 103), the Italian Law No 1034 of 6 December 1971 in particular when read in conjunction with Article 85 of the Decreto del Presidente della Repubblica (Decree of the President of the Republic) No 570 of 16 May 1960 and finally, with regard to the United Kingdom, Section 16 (3) of the Representation of the People Act 1949. All this combines to show the general nature of a criterion which in any case has an irrefragable logical basis of its own: where the wishes of the electorate have not been properly ascertained the election cannot be considered valid. In the present case the disappearance of twenty-nine ballot-papers does not permit the official results of the count to be corrected with certainty. Accordingly, since it is impossible to replace the list of successful candidates drawn up in 1975 by the tellers with a list which is certainly correct the Court must restrict itself to annulling the elections.