Brussels, 28.4.2004
C(2004) 1588

COMMISSION DECISION

General implementing provisions on the conduct of administrative inquiries and disciplinary procedures

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of those Communities, as laid down by Council Regulation (EEC, Euratom, ECSC) No 259/68⁽¹⁾ , and in particular Article 2(3) of those Staff Regulations and Article 30 of Annex IX thereto,

After consulting the Staff Regulations Committee,

After consulting the Staff Committee,

Whereas:

1. Commission Decision C(2002)540 of 19 February 2002 on the conduct of administrative inquiries and disciplinary procedures should be replaced by these provisions to adjust it to the requirements of the new Staff Regulations.
    
2. The general implementing provisions to govern the conduct of administrative inquiries should be adopted.
    
3. The implementing provisions for disciplinary procedures should be adopted.
    
4. The new functions of IDOC, which represents the appointing authority before the Disciplinary Board should be taken into consideration and the Director of IDOC or his or her deputy should be designated for that purpose.
    
5. The term of office of the Chairman, the members of the Disciplinary Board and their alternates should be extended to a maximum period of three years.
    
6. The independence of the Disciplinary Board should be increased by selecting its Chair from former officials or Members of the European institutions.
    
7. A preventative approach to and transparency in disciplinary matters should be ensured.
    
8. In IDOC’s administrative inquiries, account should be taken of Commission decision C(2003) 2247 of 9 July 2003 setting up the Specialised Financial Irregularities Panel (‘the Panel’), laying down that this body must, in accordance with Article 66(4) of Regulation (EC, Euratom) No 1605/2002, issue an opinion on the existence of a financial irregularity and its possible consequences.
    
9. Under Article 22 of the Staff Regulations, the formalities laid down for disciplinary matters must also be observed in the case of a procedure concerning the pecuniary responsibility of an official,

HAS ADOPTED THE FOLLOWING PROVISIONS:

• Chapter I - Investigation and disciplinary office (IDOC)
  • Article 1 - IDOC
  • Article 2 - Tasks and functions of IDOC
     
• Chapter II - administrative inquiries
  • Article 3 - The exercise of powers as regards administrative inquiries
  • Article 4 - Opening and conduct of administrative inquiries
     
• Chapter III - Disciplinary procedures
  • Article 5 - The hearing referred to in Article 3 of Annex IX to the Staff Regulations
  • Article 6 - Representation of the appointing authority before the Disciplinary Board
     
• Chapter IV - Chairman and members of the Disciplinary Board
  • Article 7 - Appointment and term of office of the Chairman and Members
  • Article 8 - Training
     
• Chapter V - Prevention and publicity
  • Article 9 - Guide
  • Article 10 - Publication of the results of disciplinary procedures
     
• Chapter VI - Final provisions
  • Article 11 - Repeal of Decision C(2002)540 of 19 February 2002
  • Article 12 - Date of entry into force and applicability
    
     

Chapter I
Investigation and disciplinary office (IDOC)

Article 1
IDOC

1. An investigation and disciplinary office (IDOC) is hereby established.
    
2. IDOC shall be directly attached to the Directorate-General for Personnel and Administration. It shall be headed by a Director.
    
3. Members of IDOC may not sit on a Disciplinary Board.

Article 2
Tasks and functions of IDOC

1. IDOC shall carry out administrative inquiries. For the purposes of these implementing provisions, ‘administrative inquiries’ shall mean all actions taken by the authorised official to establish the facts and, where necessary, determine whether there has been a failure to comply with the obligations incumbent on Commission officials.
   
   For the purposes of these provisions, the term ‘official’ shall include former officials, servants or former servants within the meaning of the Conditions of Employment of other servants of the Communities.
    
2. IDOC may be asked to carry out other inquiries to ascertain certain facts, in particular under Articles 24, 73 and 90 of the Staff Regulations.
    
3. IDOC shall carry out disciplinary procedures for the appointing authority.
    
4. IDOC shall coordinate preventative measures as regards discipline.

Chapter II
administrative inquiries

Article 3
The exercise of powers as regards administrative inquiries

1. The Director and other members of IDOC shall exercise their powers of administrative inquiry independently. In the exercise of those powers, they shall neither seek nor receive instructions. They shall have the power to obtain documents, summon any person subject to the Staff Regulations to provide information and carry out on-the-spot investigations.
    
2. Administrative inquiries shall be carried out thoroughly and include all aggravating and extenuating circumstances; they shall last for a period appropriate to the circumstances and complexity of the case.
    
3. IDOC may receive assistance from other officials or specialist departments.

Article 4
Opening and conduct of administrative inquiries

1. An administrative inquiry shall be opened at the request of a Director-General or Head of Department, or on its own initiative, by the Director-General for Personnel and Administration in agreement with the Secretary-General.
    
2. Before opening the inquiry, the Director-General for Personnel and Administration shall consult the European Anti-Fraud Office (hereinafter OLAF) to ascertain that that Office is not undertaking an investigation for its own purposes and does not intend to do so. As long as OLAF is conducting an investigation within the meaning of Regulation 1073/99⁽²⁾ , no administrative inquiry under the preceding paragraph shall be opened regarding the same facts.
    
3. The decision to open an administrative inquiry shall designate the Director of IDOC or another official as responsible for the inquiry, define the purpose and scope of the inquiry and require the officials responsible for it to determine responsibilities on the basis of the particular facts and circumstances, and, if appropriate, the individual responsibility of the officials concerned.
    
4. As soon as an administrative inquiry suggests that an official may be personally involved in an affair, that official shall be kept informed provided that information does not hinder the inquiry. In any case, conclusions referring to an official by name may not be drawn at the end of the inquiry unless that official has had the opportunity to express an opinion on all the facts which relate to him or her. The conclusions shall record that opinion.
   
   Where absolute secrecy is required by the aims of the inquiry requiring investigative procedures which are the responsibility of a national judicial authority, the obligation to invite the official to express an opinion may be deferred by the Secretary-General in agreement with the Director-General for Personnel and Administration. In that eventuality, no disciplinary procedure may be opened until the official has been able to express an opinion.
   
   If, following an administrative inquiry, no charge is brought against an official against whom allegations have been made, the administrative inquiry concerning that official shall be closed with no further action by decision of the Director-General for Personnel and Administration, who shall so inform the official in writing. The official may request that that decision be placed in his or her personal file.
   
   The closure of the administrative inquiry shall not prevent its being reopened if new facts come to light.
    
5. IDOC shall submit a report on the inquiry to the Director-General for Personnel and Administration, after consulting, if appropriate, the Specialised Financial Irregularities Panel (‘the Panel’) pursuant to Commission Decision C(2003)2247 of 9 July 2003. That report shall set out the facts and circumstances in question; it shall establish whether the rules and procedures applicable to the situation were respected and shall determine any individual responsibility, having regard to aggravating or mitigating circumstances. Copies of all the relevant documents and records of interviews shall be attached to the report.
    
6. The Director-General for Personnel and Administration shall inform the official concerned of the conclusion of the inquiry together with the conclusions of the inquiry report and, on request, all documents directly linked to the allegations made, subject to the protection of the legitimate interests of third parties.
    
7. After receiving an inquiry report from OLAF, the Director-General for Personnel and Administration may, if appropriate, either ask OLAF to supplement the report or decide to open an administrative inquiry himself or immediately open a disciplinary procedure or indeed close the file without any disciplinary consequences.

Chapter III
Disciplinary procedures

Article 5
The hearing referred to in Article 3 of Annex IX to the Staff Regulations

1. An official heard pursuant to Article 3 of Annex IX to the Staff Regulations shall sign the record of the hearing or make comments and/or remarks within 15 calendar days from receipt of the record. Failure to do so within that period shall, except in cases of force majeure, result in the record being considered approved.
    
2. If the appointing authority or a person authorised to that effect has to conduct interviews with certain persons following the hearing referred to in Article 3 of Annex IX to the Staff Regulations, the official concerned may, on request, receive a copy of the signed records of those interviews provided that the facts mentioned there have a direct bearing on the preliminary allegations made against him or her.

Article 6
Representation of the appointing authority before the Disciplinary Board

1. The representation of the appointing authority before the Disciplinary Board, pursuant to Article 16(2) of Annex IX to the Staff Regulations shall be undertaken by the Director of IDOC or his or her deputy.
    
2. Where an administrative inquiry has already been held into a case before the Disciplinary Board, the officials who conducted that inquiry may not represent the appointing authority before the Disciplinary Board but may, if appropriate, be called by it as witnesses.

Chapter IV
Chairman and members of the Disciplinary Board

Article 7
Appointment and term of office of the Chairman and Members

1. The Chairman of the Disciplinary Board, its members and their deputies shall be appointed for a maximum period of three years, which may be renewed.
    
2. The Chairman of the Disciplinary Board shall be a former official or former member of a European institution. He/she shall be remunerated on a daily basis at a level equivalent to 1/22 of the basic salary of an official in grade AD 16, step 1.
    
3. The Chairman’s deputy shall be a official in grade AD 16 or AD 15 serving as a Director-General or Deputy Director-General.

Article 8
Training

Officials appointed as members of the Disciplinary Board shall receive specific introductory training as soon as possible after their appointment.

Chapter V
Prevention and publicity

Article 9
Guide

The guide setting out the rights and obligations of officials, the rules of conduct they are required to follow and the consequences which violations of those obligations may engender and examples of faults shall be regularly updated and made accessible to all members of staff.

Article 10
Publication of the results of disciplinary procedures

The decisions on disciplinary matters taken by the appointing authority or a summary of those decisions shall be published once a year. The names of the officials and any other information which could identify them shall be omitted.

Chapter VI
Final provisions

Article 11
Repeal of Decision C(2002)540 of 19 February 2002

Commission Decision C (2002)540 of 19 February 2002 on the conduct of administrative inquiries and disciplinary procedures shall be repealed from the date of entry into force of these implementing provisions.

Article 12
Date of entry into force and applicability

These implementing provisions shall enter into force on 1 May 2004; they shall apply to inquiries and disciplinary procedures in progress on that date.

Done at Brussels, 28 April 2004.

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Footnotes

⁽¹⁾ OJ L 56, 4.3.1968. Regulation as last amended by Regulation (EC, Euratom) No 723/2004 (OJ L 124, 27.4.2004, p. 1)

⁽²⁾ Regulation of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office, OJ L 136 of 31/05/1999, pp. 1-7