Annexe IX — Discipline

Section 1 - General provisions

Article 1

1. Whenever an investigation by OLAF reveals the possibility of the personal involvement of an official, or a former official, of an institution, that person shall rapidly be informed, provided this is not harmful to the investigation. In any event, conclusions referring by name to an official may not be drawn once the investigation has been completed without that official concerned having been given the opportunity to comment on facts concerning him. The conclusions shall make reference to these comments. 2. In cases that demand absolute secrecy for the purposes of the investigation and requiring the use of investigative procedures falling within the remit of a national judicial authority, compliance with the obligation to invite the official to comment may, in agreement with the Appointing Authority, be deferred. In such cases, no disciplinary proceedings may be opened before the official has been given a chance to comment. 3. If, following an OLAF investigation, no case can be made against an official about whom allegations have been made, the investigation in question shall be closed, with no further action taken, by decision of the Director of OLAF, who shall inform the official and his institution in writing. The official may request that this decision be inserted in his personal file.

Article 2

1. The rules set out in Article 1 of this Annex shall apply, with any necessary changes, to other administrative enquiries carried out by the Appointing Authority. 2. The Appointing Authority shall inform the person concerned when the investigation ends, and shall communicate to him the conclusions of the investigation report and, on request and subject to the protection of the legitimate interests of third parties, all documents directly related to the allegations made against him. 3. The appointing authority of each institution shall adopt implementing arrangements for this Article, in accordance with Article 110 of the Staff Regulations.

Article 3

1. On the basis of the investigation report, after having notified the official concerned of all evidence in the files and after hearing the official concerned, the Appointing Authority may:
(a) decide that no case can be made against the official, in which case the official shall be informed accordingly in writing; or (b) decide, even if there is or appears to have been a failure to comply with obligations, that no disciplinary measure shall be taken and, if appropriate, address a warning to the official; or (c) in the case of failure to comply with obligations within the meaning of Article 86 of the Staff Regulations:
(i) decide to initiate the disciplinary proceedings provided for in Section 4 of this Annex, or (ii) decide to initiate disciplinary proceedings before the Disciplinary Board.

Article 4

An official who, for objective reasons, cannot be heard under the provisions of this Annex may be asked to comment in writing or may be represented by a person of his choice.

Section 2 - Disciplinary board

Article 5

1. A Disciplinary Board, hereinafter referred to as ‘the Board’, shall be established in each institution, unless two or more agencies decide, in accordance with paragraph 1a of Article 9 of the Staff Regulations, to set up a common Board. The Board shall include at least one member, who may be the chairman, chosen from outside the institution. 2. The Board shall consist of a chairman and four full members, who may be replaced by alternates, and, in cases involving an official in a grade up to AD 13, two additional members in the same function group and grade as the official subject to disciplinary proceedings. 3. The members and alternates of the Board shall be appointed from amongst the officials in grade AD 14 or above in active employment in respect of all cases other than those concerning officials in grades AD 16 or AD 15. 4. The members and alternates of the Board shall be appointed from amongst officials in grade AD 16 in active employment for cases involving officials in grades AD 16 or AD 15. 5. The Appointing Authority and the Staff Committee shall agree on an ad hoc procedure to designate the further members referred to in paragraph 2 who shall sit for cases involving an official posted to a third country.

Article 6

1. The Appointing Authority and the Staff Committee shall each appoint two members and two alternates at the same time. 2. The chairman and alternate for the chairman shall be appointed by the Appointing Authority. 3. The chairman, the members and the alternates shall be appointed for a period of three years. However, the institutions may provide for a shorter period for members and alternates, subject to a minimum of one year. 4. The two members of the Board as enlarged in accordance with Article 5 (2) of this Annex shall be appointed in the following manner:
(a) the Appointing Authority shall draw up a list containing, if possible, the names of two officials in each grade in each function group. At the same time, the Staff Committee shall send the Appointing Authority a list drawn up on the same basis; (b) within ten days of the notification of the report on which the decision to open disciplinary proceedings or the procedure laid down in Article 22 of the Staff Regulations is based, the chairman of the Board, in the presence of the person concerned, shall draw by lot from the abovementioned lists the names of the two Board members, one member being drawn from each list. The chairman may decide that the secretary is to replace him in this procedure. The chairman shall notify the official concerned and the individual members of the Board of its complete composition.

5. The official concerned shall be entitled to reject one of the Board members within five days of the Board's establishment. The institution shall also be entitled to reject one of the Board members. Within the same time limit, Board members may ask to be excused from duty for legitimate reasons and shall withdraw if a conflict of interests exists. If necessary, the chairman of the Board shall draw new lots to replace the members appointed in accordance with paragraph 4.

Article 7

The Board shall be assisted by a secretary appointed by the Appointing Authority.

Article 8

1. The chairman and members of the Board shall be completely independent in the performance of their duties. 2. The deliberations and proceedings of the Board shall be secret.

Section 3 - Disciplinary measures

Article 9

1. The Appointing Authority may impose one of the following penalties:
(a) a written warning; (b) a reprimand; (c) deferment of advancement to a higher step for a period of between one and 23 months; (d) relegation in step; (e) temporary downgrading for a period of between 15 days and one year; (f) downgrading in the same function group; (g) classification in a lower function group, with or without downgrading; (h) removal from post and, where appropriate, reduction pro tempore of a pension or withholding, for a fixed period, of an amount from an invalidity allowance; the effects of this measure shall not extend to the official's dependants. In case of such reduction however, the former official's income may not be less than the minimum subsistence figure laid down in Article 6 of Annex VIII, with the addition of any family allowances payable.

2. Where the official is in receipt of a retirement pension or an invalidity allowance, the Appointing Authority may decide to withhold an amount from the pension or the invalidity allowance for a given period; the effects of this measure shall not extend to the official's dependants. The official's income may not, however, be less than the minimum subsistence figure laid down in Article 6 of Annex VIII, with the addition of any family allowances payable. 3. A single case of misconduct shall not give rise to more than one disciplinary penalty.

Article 10

The severity of the disciplinary penalties imposed shall be commensurate with the seriousness of the misconduct. To determine the seriousness of the misconduct and to decide upon the disciplinary penalty to be imposed, account shall be taken in particular of:
(a) the nature of the misconduct and the circumstances in which it occurred, (b) the extent to which the misconduct adversely affects the integrity, reputation or interests of the institutions, (c) the extent to which the misconduct involves intentional actions or negligence, (d) the motives for the official's misconduct, (e) the official's grade and seniority, (f) the degree of the official's personal responsibility, (g) the level of the official's duties and responsibilities, (h) whether the misconduct involves repeated action or behaviour, (i) the conduct of the official throughout the course of his career.



Section 4 - Disciplinary proceedings not involving the disciplinary board

Article 11

The Appointing Authority may decide on the penalty of a written warning or reprimand without consulting the Board. The official concerned shall be heard before such action is taken by the Appointing Authority.

Section 5 - Disciplinary proceedings before the disciplinary board

Article 12

1. The Appointing Authority shall submit a report to the Board, stating clearly the facts complained of and, where appropriate, the circumstances in which they arose, including any aggravating or extenuating circumstances. 2. The report shall be communicated to the official concerned and to the chairman of the Board, who shall bring it to the attention of the members of the Board.

Article 13

1. On receipt of the report, the official concerned shall have the right to obtain his complete personal file and take copies of all documents relevant to the proceedings, including exonerating evidence. 2. The official concerned shall have not less than 15 days from the date of receipt of the report initiating the disciplinary proceedings to prepare a defence. 3. The official concerned may be assisted by a person of his or her choice.

Article 14

If, in the presence of the Chairman of the Board, the official concerned acknowledges misconduct on his part and accepts unreservedly the report referred to in Article 12 of this Annex, the Appointing Authority may, in accordance with the principle of proportionality between the nature of the misconduct and the penalty being considered, withdraw the case from the Board. Where a case is withdrawn from the Board the Chairman shall deliver an opinion on the penalty considered. Under this procedure the Appointing Authority may, by derogation from Article 11 of this Annex, impose one of the penalties provided for in Article 9 (1) (a) to (d) of this Annex. The official concerned shall be informed before acknowledging his misconduct of the possible consequences of such acknowledgement.

Article 15

Before the first meeting of the Board, the chairman shall give one of its members the task of preparing a general report on the matter and shall inform the other members of the Board accordingly.

Article 16

1. The official concerned shall be heard by the Board; at the hearing, he may submit observations in writing or orally, whether in person or through a representative. He may call witnesses. 2. The institution shall be represented before the Board by an official mandated by the Appointing Authority to this effect and having rights equivalent to those of the official concerned. 3. The Board may hear investigating officials from OLAF in cases where an investigation was initiated by the Office.

Article 17

1. If the Board does not consider that it has sufficiently clear information on the facts complained of or the circumstances in which they arose, it shall order an investigation in which each side can submit its case and reply to the case of the other side. 2. The chairman or a member of the Board shall conduct the investigation on behalf of the Board. For the purposes of the investigation, the Board may call for any documents relating to the matter before it. The institution shall comply with any such request within the time limit, if any, set by the Board. Where such a request is addressed to the official, note shall be taken of any refusal to comply.

Article 18

After consideration of documents submitted and having regard to any statement made orally or in writing and to the results of any investigation undertaken, the Board shall, by majority vote, deliver a reasoned opinion as to whether the facts complained of are established and as to any penalty to which those facts should give rise. This opinion shall be signed by all the members of the Board. Each member may attach to the opinion a divergent view. The Board shall transmit the opinion to the Appointing Authority and to the official concerned within two months of the date of receipt of the report of the Appointing Authority, provided that this time limit is commensurate with the degree of complexity of the case. Where an investigation has been held at the Board's initiative, the time limit shall be four months, provided that this period is commensurate with the degree of complexity of the case.

Article 19

1. The chairman of the Board shall not vote on matters before it, except as regards matters of procedure or where votes are tied. 2. The chairman shall ensure that the decisions of the Board are implemented and shall bring all information and documents relating to the case to the attention of each of its members.

Article 20

The secretary shall draw up minutes of meetings of the Disciplinary Board. Witnesses shall sign the minutes recording their evidence.

Article 21

1. Expenses incurred on the initiative of an official concerned in the course of disciplinary proceedings, and in particular fees paid to a person chosen to assist the official or for his defence, shall be borne by the official where the disciplinary proceedings result in the imposition of one of the penalties provided for in Article 9 of this Annex. 2. However, the Appointing Authority may decide otherwise in exceptional cases where the burden on the official concerned would be unfair.

Article 22

1. After hearing the official, the Appointing Authority shall take its decision as provided for in Articles 9 and 10 of this Annex within two months of receipt of the opinion of the Board. Reasons must be given for the decision. 2. If the Appointing Authority decides to close the case without imposing any disciplinary penalty, it shall so inform the official concerned in writing without delay. The official concerned may request that this decision be inserted in his personal file.

Section 6 - Suspension

Article 23

1. If the Appointing Authority accuses an official of serious misconduct, whether through a failure to honour his professional obligations or through an infringement of the law, it may immediately suspend the person accused of that misconduct for a specified or indefinite period. 2. The Appointing Authority shall take this decision after hearing the official concerned, save in exceptional circumstances.

Article 24

1. The decision suspending an official shall state whether the official is to continue to receive his full remuneration during the period of suspension or what part thereof is to be withheld. The amount paid to the official shall not under any circumstances be less than the minimum subsistence figure laid down in Article 6 of Annex VIII to these Staff Regulations, with the addition of any family allowances payable. 2. The situation of a suspended official must be definitively settled within six months of the date on which the suspension takes effect. If no such decision is taken within six months, the official concerned shall be entitled to again receive full remuneration, subject to paragraph 3. 3. Remuneration may continue to be withheld in part after the six-month deadline referred to in paragraph 2 if the official concerned is the subject of criminal proceedings for the same acts and is in custody as a result of those proceedings. In such cases the official shall not receive full remuneration until the competent court has ordered his release. 4. Sums withheld under paragraph 1 shall be repaid to the official if the final decision imposes a disciplinary penalty no more severe than a written warning, reprimand or deferment of advancement to a higher step, or if no disciplinary penalty is imposed; in the latter case, the repayment shall be made with compound interest at the rate defined in Article 12 of Annex XII.

Section 7 - Parallel criminal prosecution

Article 25

Where the official is prosecuted for those same acts, a final decision shall be taken only after a final judgment has been handed down by the court hearing the case.

Section 8 - Final provisions

Article 26

The decisions referred to under Articles 11, 14, 22 and 23 of this Annex shall be sent for information to OLAF in cases where an investigation was initiated by the Office.

Article 27

An official against whom a disciplinary penalty other than removal from post has been ordered may, after three years in the case of a written warning or reprimand or after six years in the case of any other penalty, submit a request for the deletion from his personal file of all reference to such measure. The Appointing Authority shall decide whether to grant this request.

Article 28

Where new facts supported by relevant evidence come to light, disciplinary proceedings may be reopened by the Appointing Authority on its own initiative or on application by the official concerned.

Article 29

If no case has been made against the official pursuant to Articles 1 (3) and 22(2) of this Annex, the official shall be entitled to request that the damage suffered should be made good through suitable publicity for the decision of the Appointing Authority.

Article 30

Without prejudice to Article 2 (3), the appointing authority of each institution shall, if it sees fit, adopt implementing arrangements for this Annex after consulting the Staff Committee.