5.

In support of its objection of inadmissibility the Commission states that, although the Court by implication has held to the contrary (judgment of 11 July 1968 in Case 35/67, Van Eick v Commission [1968] ECR 239), the opinion of the Disciplinary Board is solely a preparatory measure and in no way binding. It cannot therefore be the subject of an application for annulment. That does not mean that if the Board has given it in breach of the Staff Regulations the official concerned has no protection. On the contrary, there is nothing to prevent him from challenging the decision itself and citing in support of his action any irregularities affecting the opinion and the disciplinary proceedings. The applicant takes the opposite view. He observes that the opinion constitutes the conclusion of a ‘special and distinct procedure’ and that its function is to allow the appointing authority to take a disciplinary decision; consequently, it may be challenged independently. In his opinion, the judgment of 11 November 1981 in Case 60/81 (IBM v Commission [1981] ECR 2639) is authority for that view. I do not think that argument is well founded. According to Article 91(1) and (2) of the Staff Regulations the Court has jurisdiction in any dispute between the Community and a member of its staff regarding the legality of any measure ‘adversely affecting’ that person. Furthermore, an action is admissible only if a complaint pursuant to Article 90(2) has been made to the the appointing authority within the period provided. It is common ground that in the present case the applicant made such a complaint solely against the decision of Mr Burke. Furthermore, he maintains that the decision was unlawful since, contrary to the opinion of the Disciplinary Board, it denied that there were mitigating circumstances. Therefore, far from criticizing the opinion as he does today, the applicant relied on it; he in fact used it as a weapon to attack Mr Burke's decision. Is that observation sufficient to conclude that the claim is inadmissible? In my opinion it is. Let us assume, however, that the Court does not think so, that is to say, that it considers that the complaint against the opinion is contained by implication in that made against the disciplinary decision. The applicant must nevertheless show that the opinion is a decision, that is to say, a measure which can affect the legal position of the person challenging it. In that connection the applicant has cited the judgment in the IBM case, which concerns the nature of certain preparatory measures in antitrust proceedings. The relevant passages are contained in paragraphs 10 and 11. The Court stated as follows : ‘In the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, it is clear from the case-law that in principle an act is open to review only if it is a measure definitively laying down the position of the Commission or the Council on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision. It would be otherwise only if acts or decisions adopted in the course of the preparatory proceedings ... were themselves the culmination of a special procedure distinct from that intended to permit the Commission or the Council to take a decision on the substance of the case.’ Clearly, the applicant's argument is based on the obiter dictum in paragraph 11. Even assuming however — and it is an assumption which I hesitate to make — that anti-trust proceedings and disciplinary proceedings are comparable and that the rules of one apply equally to the other, I think it can certainly be ruled out that the opinion of the Disciplinary Board is: (a) the culmination of a ‘special and distinct procedure’ and (b) a definitive or even provisional measure. In order to explain the reasons for that view I shall refer to the principles of administrative law. (a) The second paragraph of Article 87 of the Staff Regulations provides that downgrading and removal from post ‘shall be ordered by the appointing authority after the disciplinary procedure provided for in Annex IX has been completed.’ It should be noted that the provision makes the imposition of the most severe penalties conditional not upon the issue of an opinion by the Disciplinary Board, that is to say on the adoption of a measure, but on the completion of a complex procedure, which is governed by a set of rules contained in the Staff Regulations and in a special annex. Let us therefore look at the aspects of those rules which appear to be the most important for the solution of our problem. In particular, which is the body which initiates and concludes the proceedings? And by what measures? Article 87 states that the procedure is to be ‘initiated by the appointing authority’, thus implying that the power to do so belongs solely to the appointing authority (a power, nevertheless, subject to an obligation: the official concerned must be heard). Article 1 of Annex IX explains that the procedure commences with the transmission of a report by the appointing authority to the Chairman of the Disciplinary Board. That provision thus functions as a link between the rules of the Staff Regulations and those of the annex and accordingly allows us to consider them in conjunction with one another. Finally, the last paragraph of Article 7 of Annex IX states how and by whom the procedure is concluded. It states that the appointing authority ‘shall take its decision within one month [from the delivery of the opinion]’. Once again, however, the appointing authority must hear the official. That completes the picture, which seems to me quite clear. The disciplinary proceedings are opened and closed by the same body by means of the same measure and subject to the same condition: the appointing authority, by a decision and after hearing the person concerned. It is therefore not true that the proceedings are split up into ‘special’ stages which are concluded separately. The proceedings are a composite but unified whole and the appointing authority is the sole authority responsible from the beginning to the end. (b) Obvious reasons of a substantial nature prevent the opinion from being regarded as a decision, at least in the technical sense of a measure having binding legal effects. It is true that it is an administrative measure but it has, nevertheless, very special characteristics. Far from expressing the will of the administration, it is the expression of a judgment (in so far as it makes a reasoned recommendation concerning ‘the disciplinary measure appropriate to the facts complained of’ the first paragraph of Article 7 of Annex IX) and possibly a statement of the known facts (in so far as it gives an account of any inquiry made: Article 6 of Annex IX). In that light I should define it as a typical consultative measure, that is to say a measure by which the body concerned assesses at a technical level a matter submitted for its scrutiny by the body having the power of decision. The administrative assessment is a matter for the latter body alone. Although an opinion is required before the most serious penalties are imposed, it is not binding and the appointing authority may take a different view provided that it states its reasons for doing so. In short, the opinion is an internal measure of a preparatory nature. It is not possible to challenge it and an application directly seeking its annulment is inadmissible. Having come to that conclusion I think it useful to emphasize what I have already said in summarizing the argument of the defendant institution: the defects or irregularities to which the reasoned opinion may be subject are not immune from review by the Court. The opinion, as we have just seen, is an internal measure, but that does not prevent it from having external importance if and when the proceedings in which it is given lead to a decision. In that event, the defects in the opinion (just like any defects in the proceedings) may affect the lawfulness and validity of the final measure and may thus be censured in an action against that measure. There are of course limits to that rule. The defects must have a definite influence; they must actually affect the form or substance of the decision. I can clarify the above by an example taken from the present case. One of the submissions with which the applicant challenges the decision concerns an infringement of essential procedural requirements; among the many complaints made in that regard, the last is that the three-month period which the first paragraph of Article 7 of Annex IX imposes on the Disciplinary Board for the drafting of its opinion was not observed. That period relates to an internal procedure which, whilst having to provide certain guarantees, is not a matter for the courts or a matter of public policy. It may be inferred that its aim is solely to determine the period for the completion of the disciplinary proceedings and hence that failure to observe it may at most make the administration liable (see the judgment of 4 February 1970 in Case 16/69, Van Eick v Commission [1970] ECR 3), but certainly cannot make the final measure void. The present case provides obvious evidence of all that. The fact that the opinion was given after expiry of the three-month period in no way affected the decision taken by the Member of Commission, which from the formal viewpoint was duly adopted within the required period. Thus, my conclusions on this point are as follows: (a) The reasoned opinion of the Disciplinary Board and the measures relating to the disciplinary proceedings which are not true decisions are measures which in themselves are not open to challenge in proceedings brought under Articles 90 and 91 of the Staff Regulations. (b) Any defects or irregularities in the disciplinary proceedings or the opinion may be relied upon in an action directed against the final decision in so far as they actually affect the lawfulness or validity thereof, concerning either the observance of procedural requirements or the legal assessment of the facts. It is in the light of those principles that I shall consider the complaints made by the applicant against the disciplinary proceedings and the reasoned opinion.