1 THE APPLICATION IS FOR THE ANNULMENT BY THE COMPETENT AUTHORITY OF THE ELECTIONS HELD ON 18 MARCH 1975 FOR THE STAFF COMMITTEE OF THE EUROPEAN PARLIAMENT BECAUSE OF A NUMBER OF IRREGULARITIES WHICH ARE ALLEGED TO HAVE OCCURRED DURING THE PREPARATIONS FOR THE ELECTION , DURING THE ELECTION PROCEEDINGS AND IN THE COUNTING OF VOTES . PREVIOUS HISTORY OF THE CASE
2 BY AN APPLICATION ANNEXED TO THE APPLICATION INITIATING THE PROCEEDINGS THE APPLICANTS REQUESTED THE COURT , PURSUANT TO ARTICLE 91 ( 4 ) OF THE STAFF REGULATIONS OF OFFICIALS , TO ADOPT INTERIM MEASURES COMPRISING AN ORDER TO THE EUROPEAN PARLIAMENT TO WITHHOLD RECOGNITION , PENDING A DECISION ON THE SUBSTANCE OF THE CASE , OF THE LEGAL EXISTENCE OF THE STAFF COMMITTEE APPOINTED AS A RESULT OF THE ELECTIONS ON 18 MARCH 1975 AND ON THE OTHER HAND TO REQUIRE THE BALLOT-PAPERS TO BE LODGED AT THE COURT REGISTRY FOR CHECKING DURING THE PROCEDURE .
3 BY AN ORDER OF 2 JULY 1975 (( 1975 ) ECR 839 ) THE PRESIDENT OF THE SECOND CHAMBER ACCEDED TO THE REQUEST REGARDING THE LODGING OF THE BALLOT-PAPERS AT THE COURT REGISTRY BUT REFUSED THE REQUEST FOR INTERIM SUSPENSION OF THE POWERS OF THE STAFF COMMITTEE APPOINTED AS A RESULT OF THE ELECTIONS IN DISPUTE .
4 FOLLOWING THE WRITTEN PROCEDURE THE SECOND CHAMBER , BY AN ORDER OF 6 MAY 1976 , REFERRED THE CASE TO THE FULL COURT IN VIEW OF THE QUESTIONS OF PRINCIPLE WHICH IT CONSIDERED WERE RAISED BY THE MATTER OF THE ADMISSIBILITY OF THE APPLICATION .
5 BY A JUDGMENT OF 29 SEPTEMBER 1976 (( 1976 ) ECR 1381 ) THE COURT FOUND THAT THE APPLICATION WAS ADMISSIBLE AND REMITTED THE CASE TO THE SECOND CHAMBER FOR THE PURPOSES OF EXAMINATION AND A DECISION ON THE SUBSTANCE .
6 BY AN ORDER OF 20 OCTOBER 1976 THE PARTIES WERE SUMMONED TO THE DELIBERATION ROOM IN ORDER TO FURNISH INFORMATION REGARDING THE PROCEDURE FOR COUNTING THE BALLOT-PAPERS AND IN ADDITION TO REPLY TO ANY OTHER QUESTIONS PUT TO THEM AS TO THE COMPLAINTS SUBMITTED BY THE APPLICANTS .
7 THIS HEARING , IN WHICH THE PARTIES AND THE CHAIRMAN OF THE COMMITTEE OF TELLERS PARTICIPATED , TOOK PLACE ON 11 NOVEMBER 1976 .
8 FOLLOWING THIS HEARING THE CHAMBER SET UP A COMMISSION , CONSISTING OF OFFICIALS OF THE COURT , WITH INSTRUCTIONS TO CARRY OUT A FRESH COUNT OF THE BALLOT-PAPERS LODGED AT THE REGISTRY .
9 THIS COMMISSION MET IN PUBLIC ON 6 AND 7 JANUARY 1977 AND SUBMITTED ITS REPORT ON 7 JANUARY 1977 . THE SUBSTANCE OF THE CASE
10 THE APPLICANTS SUBMIT VARIOUS COMPLAINTS OF IRREGULARITIES OF PROCEDURE AND OF FORM OCCURRING DURING THE PREPARATIONS FOR AND THE CARRYING OUT OF THE ELECTIONS , OF UNDUE INFLUENCE BROUGHT TO BEAR ON CERTAIN ELECTORS WHEN CASTING THEIR VOTE AND , FINALLY , OF ERRORS ARISING IN THE COURSE OF THE COUNTING OF VOTES . COMPLAINTS RELATING TO PROCEDURE AND FORM
11 THE COMPLAINTS OF IRREGULARITIES OF PROCEDURE AND FORM CONCERN THE FIXING OF THE DATE OF THE ELECTIONS , THE CONDITIONS UNDER WHICH A PREPARATORY GENERAL MEETING AND THE COMMITTEE OF TELLERS WERE CONVENED , THE INCOMPLETE PUBLICITY GIVEN TO INVITATIONS FOR NOMINATIONS AND TO THE LISTS OF ELECTORS IN CERTAIN EXTERNAL OFFICES , THE EXCLUSION FROM VOTING OF ELECTORS WHO FULFILLED THE CONDITIONS LAID DOWN IN THE RULES BUT WERE NOT NAMED IN THE LISTS OF ELECTORS , THE APPLICATION OF EXCESSIVELY WIDE CRITERIA IN ACCEPTING VOTES BY PROXY , AND , FINALLY , THE WAY IN WHICH BALLOT-PAPERS WERE INSERTED IN ENVELOPES .
12 IN THE COURSE OF THE INQUIRY IT BECAME CLEAR THAT THE ABOVEMENTIONED MATTERS , AS A WHOLE , WHICH WERE MENTIONED BY THE APPLICANTS TO SHOW THE LAXITY PREVAILING DURING THE ORGANIZATION OF THE ELECTIONS , EITHER ARE NOT ESTABLISHED OR CANNOT BE PROVED OR ELSE , EVEN IF PROVED , WERE WITHOUT ANY ACTUAL EFFECT ON THE COURSE OF THE ELECTIONS .
13 HAVING REGARD TO THE NATURE OF THE OTHER FACTS ALLEGED , THE COMPLAINTS RELATING TO PROCEDURE AND FORM SUBMITTED BY THE APPLICANTS NEED NOT IN THE CIRCUMSTANCES BE EXAMINED . MATTERS CAPABLE OF JEOPARDIZING THE FREEDOM OF CHOICE OF THE ELECTORS
14 IT IS CLEAR FROM THE RULES GOVERNING REPRESENTATION OF THE STAFF ADOPTED BY THE GENERAL MEETING OF STAFF OF THE EUROPEAN PARLIAMENT PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 1 OF ANNEX II TO THE STAFF REGULATIONS OF OFFICIALS , THAT THE ELECTORS WERE GIVEN TWO BALLOT-PAPERS . ONE OF THESE , PURSUANT TO RULE 10 , WAS TO BE DISTRIBUTED TO EVERY ELECTOR AT LEAST TWO WORKING DAYS BEFORE POLLING DAY WHILST THE SECOND , PURSUANT TO RULE 11 , WAS MADE AVAILABLE AT THE POLLING OFFICE BEFORE THE ELECTOR ENTERED THE BOOTH .
15 SINCE , ACCORDING TO THE INFORMATION SUPPLIED TO THE COURT , THE BALLOT-PAPERS WERE ENCLOSED IN AN ENVELOPE BEFORE BEING DEPOSITED IN THE BALLOT-BOX IT WAS IMPOSSIBLE FOR ONE ELECTOR TO DEPOSIT MORE THAN ONE BALLOT-PAPER , EXCEPT IN THE CASE OF VOTES BY PROXY .
16 THESE FACTS , REPRESENTING THE CONDITIONS IN WHICH THE VOTES WERE CAST BY THE ELECTORS , ARE NOT IN DISPUTE BETWEEN THE PARTIES .
17 THE APPLICANTS NEVERTHELESS EMPHASIZE THAT THE PRIOR DISTRIBUTION OF THE BALLOT-PAPERS MADE POSSIBLE AND INDEED ENCOURAGED IRREGULAR PRACTICES WHICH WERE CAPABLE OF JEOPARDIZING THE FREEDOM OF CHOICE OF THE ELECTORS .
18 THUS THEY ALLEGE THAT CERTAIN ELECTORS COMPLETED THEIR BALLOT-PAPERS IN THEIR OFFICES AND DEPOSITED THEM IN THE BALLOT-BOX WITHOUT ENTERING THE BOOTH .
19 OTHER ELECTORS ARE SAID TO HAVE COMPLETED THEIR BALLOT-PAPERS IN PUBLIC AND SHOWN THEM ROUND TO ALL AND SUNDRY .
20 SOME ELECTORS ARE SAID TO HAVE ENTERED THE BOOTH IN A GROUP THUS RENDERING ILLUSORY THE GUARANTEE OF THE SECRECY OF THE BALLOT .
21 FINALLY IT IS ALLEGED THAT IN CERTAIN BRANCHES , ESPECIALLY THE PRINTING- WORKS OF THE PARLIAMENT , BALLOT-PAPERS WERE COMPLETED IN ADVANCE IN A BATCH AND DISTRIBUTED IN THEIR COMPLETED FORM TO THE INDIVIDUAL ELECTORS .
22 IN VIEW OF THE GRAVITY OF THE LAST OF THESE COMPLAINTS THE ADMINISTRATION OF THE PARLIAMENT CONDUCTED AN INQUIRY DURING WHICH THE PRESIDENT OF THE PARLIAMENT EXAMINED A NUMBER OF WITNESSES .
23 SINCE THE PRESIDENT OF THE PARLIAMENT CONSIDERED THAT THIS INQUIRY DID NOT DISCLOSE SUFFICIENTLY CONCLUSIVE EVIDENCE HE REJECTED THE COMPLAINTS .
24 WHILST IT IS TRUE THAT THE DISTRIBUTION OF TWO BALLOT-PAPERS TO EACH ELECTOR , ONE IN ADVANCE , DOES INDEED INVOLVE THE RISK OF ENCOURAGING IRREGULARITIES , NEVERTHELESS THE FACTS ALLEGED IN THE PRESENT CASE ARE NOT CAPABLE OF CONSTITUTING AN INFRINGEMENT OF THE FREEDOM OF CHOICE OF THE ELECTORS .
25 IN THIS REGARD IT IS APPROPRIATE TO COMMENT FIRST OF ALL THAT CANVASSING IN CONNEXION WITH ELECTIONS AND MUTUAL AGREEMENTS AMONGST ELECTORS IN ADVANCE ARE PERFECTLY NORMAL PRACTICES IN A DEMOCRATIC SYSTEM .
26 AN INFRINGEMENT OF THE ESSENTIAL RULES OF THE BALLOT WOULD ONLY BE ESTABLISHED IF ELECTORS HAD BEEN SUBJECTED TO UNILATERAL PRESSURE , JEOPARDIZING THEIR FREEDOM OF CHOICE IN VOTING .
27 EVEN IF THE ALLEGATIONS MADE BY THE APPLICANTS WERE PROVED THEY COULD NOT HAVE HAD SUCH AN INFLUENCE SINCE EACH ELECTOR , WHEN HE CAME TO CAST HIS VOTE , RECEIVED A BLANK BALLOT-PAPER AND COULD , IF HE DESIRED , COMPLETE IT IN SECRECY IN ACCORDANCE WITH HIS OWN WISHES .
28 CERTAIN , ELECTORS APPARENTLY PREFERRED TO USE BALLOT-PAPERS COMPLETED IN ADVANCE , EITHER BY THEMSELVES OR BY OTHERS OR AS A RESULT OF A MUTUAL AGREEMENT BUT WITHIN THE SYSTEM OBTAINING THIS STILL CONSTITUTED A SUFFICIENTLY FREE AND CONSIDERED EXPRESSION OF THEIR WISHES .
29 DESPITE THE DOUBTS TO WHICH THE PRACTICES INDICATED BY THE APPLICANTS MAY GIVE RISE AND THE DESIRABILITY OF PREVENTING SUCH PRACTICES IT HAS NOT BEEN ESTABLISHED THAT IN THE PRESENT CASE THEY WERE OF SUCH A NATURE AS ACTUALLY TO JEOPARDIZE THE FREEDOM OF CHOICE OF THE ELECTORS .
30 THOSE COMPLAINTS MUST THUS BE REJECTED . COMPLAINTS REGARDING METHOD OF COUNTING
31 IT IS COMMON GROUND BETWEEN THE PARTIES THAT IN THE ELECTIONS OF 18 MARCH 1975 USE WAS MADE FOR THE FIRST TIME OF A SYSTEM OF MECHANICAL COUNTING OF VOTES USING BALLOT-PAPERS IN THE FORM OF CARDS COMPLETED WITH A SPECIAL FELT-TIPPED PEN IN ACCORDANCE WITH THE TECHNICAL REQUIREMENTS OF THE MACHINE .
32 LIKEWISE IT IS COMMON GROUND THAT A CONSIDERABLE NUMBER OF BALLOT-PAPERS WERE REJECTED BY THE MACHINE BECAUSE THEY HAD NOT BEEN COMPLETED WITH THE NECESSARY FELT-TIPPED PEN AND HAD TO BE COUNTED MANUALLY .
33 ACCORDING TO THE FINDINGS OF THE COMMISSION SET UP BY THE COURT , ON THE BASIS OF THE BALLOT-PAPERS LODGED AT THE REGISTRY FIVE HUNDRED AND SEVENTY-THREE PAPERS WERE ACCEPTED BY THE MACHINE AND COUNTED MECHANICALLY WHILST TWO HUNDRED AND FIFTY-FOUR PAPERS WERE COUNTED MANUALLY SINCE THEY HAD BEEN REJECTED BY THE MACHINE . THESE FIGURES TAKE NO ACCOUNT OF BLANK OR SPOILED PAPERS .
34 ACCORDING TO THE APPLICANTS THE INTRODUCTION OF A MECHANICAL METHOD OF COUNTING VOTES INSTEAD OF THE MANUAL METHOD OF COUNTING EMPLOYED UNTIL THEN SHOULD HAVE BEEN EFFECTED BY PRIOR AMENDMENT OF THE RULES GOVERNING REPRESENTATION OF THE STAFF OR AT LEAST BY A FORMAL DECISION OF THE GENERAL MEETING .
35 THEY STATE THAT NO SUCH VALID DECISION WAS ADOPTED SINCE THE INTRODUCTION OF THIS NEW METHOD WAS ANNOUNCED IN AN ATMOSPHERE OF GENERAL INATTENTION AT THE END OF A MEETING ON 27 FEBRUARY 1975 .
36 PURSUANT TO RULE 6 OF THE RULES IN QUESTION ELECTIONS ARE TO BE ORGANIZED BY THE COMMITTEE OF TELLERS .
37 FURTHER , PURSUANT TO RULE 19 OF THE SAME RULES THE COMMITTEE OF TELLERS IS TO PREPARE THE BALLOT-PAPERS .
38 SINCE NO OTHER PROVISIONS ON THE DETAILED ORGANIZATION OF THE BALLOT HAVE BEEN LAID DOWN IN THE RULES IT MUST BE INFERRED FROM THE SAID PROVISIONS THAT THE COMMITTEE OF TELLERS WAS EMPOWERED TO SELECT FOR THE CASTING AND COUNTING OF VOTES ANY SUFFICIENTLY RELIABLE PROCEDURE COMPATIBLE WITH THE REQUIREMENTS OF FREEDOM AND SECRECY OF THE BALLOT .
39 IT FOLLOWS FROM THIS THAT IN ITSELF THE INTRODUCTION OF A SYSTEM OF COUNTING VOTES MECHANICALLY INSTEAD OF MANUALLY DOES NOT REQUIRE A PRIOR AMENDMENT OF THE RULES OR A DECISION OF THE GENERAL MEETING .
40 THIS COMPLAINT MUST ACCORDINGLY BE REJECTED .
41 IN ADDITION THE APPLICANTS PUT FORWARD A SERIES OF FACTS AND CIRCUMSTANCES WHICH IN THEIR VIEW MARRED THE COUNTING OF THE VOTES .
42 IN THIS CONNEXION THEY POINT OUT THAT THE INTRODUCTION OF THE SYSTEM OF MECHANICAL COUNTING , WITHOUT ADEQUATE PREPARATION , SCARCELY THREE WEEKS BEFORE THE DATE OF THE ELECTIONS , WAS INOPPORTUNE AND THAT THERE WAS A LACK OF SUFFICIENTLY CLEAR INSTRUCTIONS TO THE ELECTORS SO THAT THE ELECTIONS WERE CONDUCTED IN AN ATMOSPHERE OF MARKED CONFUSION .
43 THEY ALLEGE THAT THE LACK OF PREPARATION IS PROVED BY THE HIGH PROPORTION OF BALLOT-PAPERS REJECTED BY THE MACHINE , WHICH MEANT THAT THE PAPERS IN QUESTION HAD TO BE COUNTED MANUALLY .
44 THEY FURTHER STATE THAT DESPITE THE DOUBTS WHICH AROSE PRECISELY AT THE TIME WHEN THE VOTES WERE COUNTED NO MEASURES WERE ADOPTED TO CHECK THE RESULT OF THE MECHANICAL COUNTING .
45 IN VIEW OT THE DISCREPANCIES WHICH THE APPLICANTS CONSIDERED THEY HAD ESTABLISHED BETWEEN THE RESULT PRODUCED ON THE ONE HAND BY MANUAL COUNTING AND ON THE OTHER BY MECHANICAL COUNTING THEY CARRIED OUT A MATHEMATICAL AND STATISTICAL STUDY WHICH , IN THEIR OPINION , INDICATES THAT THE RESULT OF THE BALLOT WAS VITIATED BY ERRORS OR WAS ACTUALLY MANIPULATED TO THE DISADVANTAGE OF THEIR STAFF ASSOCIATION .
46 IN ORDER TO ARRIVE AT A DECISION ON THESE COMPLAINTS THE COURT , AS HAS BEEN STATED ABOVE , ORDERED A FRESH COUNT OF THE VOTING PAPERS , ENTIRELY MANUAL , TO BE CARRIED OUT BY ITS OWN OFFICERS .
47 THIS CHECK ESTABLISHED THE FOLLOWING RESULTS : - WHILST THE FINAL RESULT ANNOUNCED BY THE COMMITTEE OF TELLERS STATES THAT THERE WERE EIGHT HUNDRED AND EIGHTY ELECTORS THE TOTAL NUMBER OF BALLOT-PAPERS LODGET AT THE COURT REGISTRY ONLY AMOUNTS TO EIGHT HUNDRED AND FIFTY-ONE . IT IS THEREFORE NECESSARY TO RECORD THAT TWENTY-NINE PAPERS ARE MISSING . - THIS DISCREPANCY AROSE BECAUSE , WITH ONE EXCEPTION , IT HAS NOT BEEN POSSIBLE TO FIND THE POSTAL BALLOT-PAPERS WHICH AMOUNT TO TWENTY IN ALL AND CAN BE RECOGNIZED BY THEIR FORMAT . - DESPITE THE ABSENCE OF TWENTY-NINE BALLOT PAPERS THE RECOUNT CARRIED OUT BY THE COURT PRODUCED FOR ALL CANDIDATES A HIGHER NUMBER OF VOTES THAN THAT RECORDED BY THE COMMITTEE OF TELLERS , WITH THE EXCEPTION OF ONE CANDIDATE WHO LOSES ONE VOTE IN THE RECOUNT . - THE DISCREPANCIES VARY FOR THE VARIOUS CANDIDATES AND RANGE FROM + 27 VOTES ( FEIDT ) TO - 1 VOTE ( ROSARIO PIRAINO ). THESE DISCREPANCIES AMOUNT TO A DIFFERENCE OF FOUR HUNDRED AND EIGHTY-SEVEN VOTES IN ALL WHILST THE AVERAGE DISCREPANCY PER CANDIDATE IS APPROXIMATELY 11.5 VOTES .
48 THE COUNT CARRIED OUT BY THE COURT INDICATES A CONSIDERABLE DIVERGENCE , VARYING IN ACCORDANCE WITH THE VARIOUS CANDIDATES , FROM THE RESULT ANNOUNCED BY THE COMMITTEE OF TELLERS .
49 IT MAY BE SUPPOSED THAT THE DIVERGENCE WOULD HAVE BEEN STILL MORE MARKED IF THE TWENTY-NINE BALLOT-PAPERS WHICH COULD NOT BE FOUND HAD BEEN INCLUDED IN THE RECOUNT .
50 SINCE THE MINUTES DRAWN UP BY THE COMMITTEE OF TELLERS DO NOT CONTAIN ANY STATISTICAL BREAKDOWN OF THE RESULTS DEPENDING ON WHETHER THE BALLOT-PAPERS WERE COUNTED BY MACHINE OR MANUALLY IT APPEARS IMPOSSIBLE TO ESTABLISH WITH A SUFFICIENT DEGREE OF CERTAINTY THE CAUSES OF THE DISCREPANCIES WHICH HAVE BEEN FOUND .
51 ACCORDING TO WHAT COULD BE OBSERVED FROM THE BALLOT-PAPERS THEMSELVES IT MAY NEVERTHELESS BE SUPPOSED THAT THE DISCREPANCIES IN QUESTION STEM FROM TWO DIFFERENT CIRCUMSTANCES : - FIRST THE FACT THAT CERTAIN PAPERS AMONGST THOSE ACCEPTED BY THE MACHINE WERE COMPLETED PARTLY WITH THE SPECIAL FELT-TIPPED PEN AND PARTLY BY OTHER MEANS SO THAT IT MUST BE PRESUMED THAT , WHILST THE MACHINE ACCEPTED THESE PAPERS , IT COUNTED THEM ONLY IN PART ; - SECONDLY THE FACT THAT IN THE SAME BATCH OF PAPERS THERE ARE SOME WHICH , ALTHOUGH COMPLETED WITH THE SPECIAL FELT-TIPPED PEN , DO NOT ENTIRELY CONFORM TO THE INSTRUCTIONS GIVEN TO THE ELECTORS SO THAT THE MACHINE WAS PROBABLY UNABLE TO COUNT THEM PROPERLY .
52 IT IS CLEAR FROM THIS ANALYSIS THAT THE OUTCOME OF THE ELECTIONS OF 18 MARCH 1975 AS IT WAS ANNOUNCED BY THE COMMITTEE OF TELLERS WAS IN FACT DISTORTED .
53 THIS ERROR AROSE PRINCIPALLY BECAUSE OF THE INOPPORTUNE INTRODUCTION OF A NEW METHOD OF COUNTING THE VOTES AND OF THE IMPERFECTIONS IN THAT METHOD .
54 IT IS THUS CLEAR THAT THE EUROPEAN PARLIAMENT HAS RENDERED ITSELF LIABLE BY REASON OF ITS FAILURE TO EFFECT APPROPRIATE SUPERVISION OF THE PREPARATION FOR AND CONDUCT OF THE ELECTIONS TOGETHER WITH ITS REFUSAL TO EXAMINE WITH THE NECESSARY ASSIDUITY THE COMPLAINTS SUBMITTED BY THE APPLICANTS WITH REGARD TO THE ARRANGEMENTS FOR COUNTING THE VOTES .
55 IT IS ACCORDINGLY NECESSARY TO ANNUL THE REJECTION OF THE APPLICANTS ' COMPLAINT SEEKING AN ACKNOWLEDGEMENT OF THE IRREGULAR NATURE OF THE ELECTIONS OF 18 MARCH 1975 AND TO DISBAND THE STAFF COMMITTEE APPOINTED IN THOSE CIRCUMSTANCES .
56 CARE MUST NEVERTHELESS BE TAKEN TO ENSURE THAT THE MEASURES TO BE ADOPTED BY THE PARLIAMENT IN IMPLEMENTATION OF THIS JUDGMENT CONFORM TO THE REQUIREMENTS OF LEGAL CERTAINTY , IN PARTICULAR IN ORDER TO AVOID CALLING IN QUESTION , ON THE SOLE GROUND OF THE IRREGULARITY OF THE ELECTIONS OF 18 MARCH 1975 , ARRANGEMENTS ALREADY ADOPTED BY THE STAFF COMMITTEE APPOINTED AS A RESULT OF THOSE ELECTIONS OR WITH ITS COLLABORATION .