1.

In his first submission the applicant alleges that there has been a breach of the general principle of regard for the rights of the defence inasmuch as the Commission did not communicate to him the entire file in its possession until nine months after the disciplinary proceedings had been commenced and did not inform him before the hearing on 7 October 1981 whether or not the adoption of the disciplinary measure envisaged required that the case be referred to the Disciplinary Board. The Commission admits that the applicant was not immediately provided with a complete set of documents. This was because the applicant did not request access to the documents and also the Commission was convinced that it was unnecessary to communicate the documents to him, because he was familiar with their contents. They were, in fact, his own correspondence. In any event, the applicant was not hindered in preparing his defence because he was able to prove that the documents which he had supplied were not confidential. The Commission contends that at the hearing on 7 October 1981 the applicant was given an opportunity of commenting on the complaints made against him. Although the hearing was governed by the rules laid down in Article 87 of the Staff Regulations, it was intended in particular to enable the appointing authority to decide what was the appropriate course of action: to terminate the procedure or to continue with the disciplinary proceedings. As it is not disputed that all the documents relating to the disciplinary proceedings were handed to the applicant's legal representative on 8 July 1982, it is necessary to determine whether that was early enough. That question necessitates a more detailed examination of Article 87 and Annex IX to the Staff Regulations. According to the first paragraph of Article 87, the appointing authority has the right to issue a written warning or a reprimand; the official concerned must be heard before such action is taken. I would describe that first alternative as ‘informal disciplinary proceedings’. The second paragraph of Article 87 provides that other (more severe) measures shall be ordered by the appointing authority after the disciplinary procedure provided for in Annex IX has been completed; once again, the official concerned must first be heard. I would describe this second alternative as ‘formal disciplinary proceedings’. Thus Article 87 of the Staff Regulations provides that the official concerned must be heard in two cases: before he is given a written warning or a reprimand in accordance with the first paragraph of that article or before formal disciplinary proceedings are initiated in accordance with the second paragraph. I take the view that it is possible for the hearings required by the two paragraphs of Article 87 entirely to coincide. If, after the hearing, the appointing authority considers that the official was guilty of only a minor breach of his obligations, it may immediately issue a written warning or a reprimand; if, however, after the hearing the breach proves to be more serious, the matter must be referred to the Disciplinary Board. However, the appointing authority cannot be required to decide before the hearing, as the applicant maintains that it should, to refer the matter to the Disciplinary Board in accordance with the second paragraph of Article 87. The hearing is ultimately intended to enable the applicant to present his defence and to enable the defendant to decide on its course of action. If the official concerned has been heard and the appointing authority is aware of the seriousness of the breach of which he is accused, there is then no purpose in a new hearing, if the appointing authority already intends to refer the matter to the Disciplinary Board. In the first place, a hearing as required by the second paragraph of Article 87 has already taken place; also, the official concerned then enjoys the procedural safeguards which are contained in Annex IX to the Staff Regulations and which confer more extensive rights upon him. Thus it does not seem to me that a second hearing is required by the Staff Regulations. According to Article 2 of Annex IX to the Staff Regulations, the official charged shall have the right, on receipt of the report (submitted to the Disciplinary Board by the appointing authority) to see his complete personal file and to take copies of all documents relevant to the proceedings. The report drawn up on 7 May 1982 for the Disciplinary Board was submitted to the Board on 11 June 1982, so initiating the formal disciplinary proceedings. Both the report and all the documents relating to the proceedings were handed to the applicant's legal representative on 8 July 1982. The applicant thus had over three months, which was in my view an adequate period, in which to prepare his defence before the Disciplinary Board, since the hearing took place on 11 October 1982. The remaining question to be answered is whether the appointing authority was obliged by the wording of the Staff Regulations to provide the official concerned with the entire file even before it initiated formal disciplinary proceedings. As I have already mentioned, the Staff Regulations does not make any such provision, and such an obligation cannot be inferred even from the judgment of the Court of Justice of 17 December 1981 in Case 115/80 1. In Case 115/80, the appointing authority had refused to allow counsel for the official concerned in that case to see the documents relating to the disciplinary proceedings. In this case, however, there was not even a request to see all the documents; the applicant had merely stated that he could not express a view in relation to documents which had not been communicated to him. At the same time, it should be pointed out that Case 115/80 ( 1 ) concerned what I have described as ‘informal disciplinary proceedings’. In that connection, the Court of Justice stated that it could not be inferred from the second paragraph of Article 4 of Annex IX to the Staff Regulations that the rights granted in that provision to the official concerned in formal disciplinary proceedings were a contrario not conferred upon the official concerned in informal disciplinary proceedings. The Court of Justice did not decide, however, that, in formal disciplinary proceedings, the official concerned should have additional rights to defend himself, not contained in Article 87 or in Annex IX to the Staff Regulations. In view of the foregoing, I consider both parts of the first submission unfounded.