OPINION OF MR ADVOCATE-GENERAL CAPOTORTI

DELIVERED ON 1 MARCH 1977 (*1)

Mr President

Members of the Court,

1.Mr Raphael De Dapper, Mr Cornells Volger and Mr Leon Bodson, all employees of the European Parliament, on 16 June 1975 instituted proceedings before the Court of Justice in which they complained that the Parliament had failed adequately to supervise the conduct of the elections for the Staff Committee which were held on 18 March 1975, that it had not investigated a series of irregularities and that it had not cancelled the results of those elections.

The Court of Justice, in a first, interlocutory judgment of 29 September 1976 found that the application was admissible and stated inter alia (in Ground of Judgment No 24) that ‘… the Court has jurisdiction in electoral disputes concerning the appointment of Staff Committees on the basis of the provisions relating to applications by officials which are laid down by the Staff Regulations in pursuance of Article 179 of the EEC Treaty’. In the same judgment the Court held (Ground of Judgment No 27) that ‘it cannot be doubted that the applicants, who were at the same time voters and candidates in the contested elections, are qualified to bring their action and have a legal interest in doing so’.

The Second Chamber must now proceed to consider the substance of the application on the basis of ‘the rules relating to freedom and democracy common to all the Member States in matters of electoral law’ (Ground of Judgment No 25).

2.In support of their application the three abovementioned employees put forward twenty complaints relating to events before the elections, during the election proceedings or in counting the votes, calling in question both the regularity and secrecy of the voting and the accuracy of the count.

Without prejudice to subsequent inquiries the Second Chamber considered the problems inherent in counting the votes and, by an order of 20 October 1976, summoned the applicants, the agent of the European Parliament, the parties' lawyers and the Chairman of the Committee of Tellers for examination in the Deliberation Room for the specific purpose of providing the Court with information on the methods of counting the votes and supplying all necessary explanations with regard to a recount and a fresh calculation of the votes to be supervised by the Court.

The abovementioned inquiry was conducted on 11 November 1976. The package containing the ballot-papers, which had been deposited at the Court Registry pursuant to an order issued on 2 July 1975 by the President of the Second Chamber at the request of the applicants, was opened in the presence of the parties. On this occasion it was found that all except one of the postal ballot-papers were missing. It is clear from the minutes of the meeting of the Committee of Tellers which took place on 18 March 1975 that twenty postal ballot-papers were counted.

Since the Second Chamber considered it futile to carry out a recount without having all the ballot-papers deposited and counted in the disputed election, on 25 November 1976 it requested the agent of the European Parliament to have a search made for the missing papers emphasizing how difficult it would be to appraise the justification for a complaint forming an essential part of the substance of the application if the ballot-papers in question still could not be found.

Despite an extension of the time allowed him for the recovery of the papers and ‘despite intensive investigations’ the Secretary of the European Parliament reported to the Second Chamber on 9 December 1976 that the papers had not been found.

The Second Chamber then decided, as the agent of the European Parliament had requested, to carry out a recount of the ballot-papers deposited at the Court Registry. A commission of seven persons was accordingly appointed under the chairmanship of one of the legal secretaries, Mr Rasquin, and on 6 January 1977, the commission carried out a manual recount in the presence of the representatives of the parties, and set out the results in a report of 7 January.

At this point the Second Chamber set down the case for the oral procedure. In the course of this hearing, which took place on 10 February 1977, the Court put to the parties further questions which made it possible to complete the reconstruction of the facts.

3.I think I should first of all provide a brief description of how the votes were counted on 18 March 1975. The General Meeting of Staff of the Secretariat of the European Parliament, which was held on 27 February 1975, on the proposal of the Chairman of the Staff Committee then holding office approved the principle of mechanical counting of votes in future elections. Until then the votes had in fact been counted manually. The circumstances in which this change was introduced form the subject-matter of a specific complaint by the applicants who contended that there had never been a formal decision of the meeting and that at the most the meeting had merely been notified of the proposal to alter the system. However, the Parliament has replied that the decision to introduce the system of mechanical counting is clear from the minutes of the meeting.

In order to acquaint all the electors with the new system of voting the Committee of Tellers notified the staff on 3 March 1975 that the ballot-paper would take the form of a computer-card having a box for every candidate, that the ballot-paper had to be handled with great care and not be folded, crumpled or stained and that the crosses signifying the votes must not go outside the border of the boxes. Nevertheless as the parties explained when they appeared before the Second Chamber on 11 November 1976 there was a further and very important condition for the mechanical counting to be a success: for the votes to be recorded by the machine they had to be entered with a black felt-tipped pen the marks of which, being of a special chemical composition, interrupt the rays emitted by the machine. Papers completed with an ordinary ball-point pen would be rejected by the machine or at any rate the marks made in ball-point would not interrupt the rays and consequently would not be recorded. Nevertheless the electors were not given any written directions notifying them of this technical peculiarity. It is clear from the statements of the parties at the hearing that the electors learned of this crucial fact only at the point when the votes were cast; indeed the directions were given and the electors provided with felt-tipped pens after some ten of them had already cast their votes. The fact that the electors were unaware of this important detail until the last moment constitutes the subject-matter of a specific complaint by the applicants (ninth ground of complaint).

On 18 March after the polls had been closed the count began. It was found that eight hundred and eighty electors had voted; twenty-four ballot-papers were blank or spoiled (including one postal vote) and eight hundred and fifty-six were valid (including nineteen postal votes). When the valid ballot-papers were inserted into the machine it rejected two hundred and fifty-four of the eight hundred and fifty-six papers since they had not been completed with the felt-tipped pen.

In view of this the Committee of Tellers decided to conduct a manual count for the rejected papers alone. Finally, the Committee added the results of the mechanical count to those of the manual count and drew up the table of votes obtained by each candidate together with a list of those elected.

4.Let us now compare these results with those obtained in the count which the Second Chamber ordered as a check and which was carried out on 6 January 1977. First the package lodged at the Court contained eight hundred and fifty-one ballot-papers instead of eight hundred and eighty. Secondly, forty out of forty-two candidates obtained more votes (with an average discrepancy of 11.5 votes) than those recorded by the tellers. Thirdly the recount affects the list of persons elected inasmuch as at least two candidates, Mr Millar and Mr Bodson, should have been elected instead of two of the persons whose election was announced, Miss Briand and Mr Dewar (on the assumption, naturally, that the twenty-nine missing papers would not have produced a different list of candidates).

Those three circumstances require comment. I have already recalled that when the parties were present and the package containing the ballot-papers was opened at the hearing on 11 November 1976 it was found that nineteen postal ballot-papers were missing. However, adding the eight hundred and fifty-one ballot-papers contained in the package to the nineteen postal ballot-papers gives a figure of eight hundred and seventy. According to the minutes of the meeting of the Committee of Tellers on 18 March 1975 eight hundred and eighty ballot-papers were opened and counted. Unless the tellers have made a mistake it accordingly follows that ten other papers are missing. Ultimately it has been impossible to find nineteen postal ballot-papers and ten ordinary ballot-papers: in all twenty-nine papers.

Then there is the apparent paradox that, when the commission appointed by the Second Chamber checked a lesser number of ballot-papers than the total cast a very appreciable increase in the number of votes was found. The reason for this is that many papers were actually accepted by the machine since they were completed partly with the felt-tipped pen and partly with a ball-point pen but the machine did not read the marks made with a ball-point pen. With regard to this point too the applicants have submitted a criticism (fifteenth head of complaint). The statement which the European Parliament has made in its defence in reply to this criticism, according to which ‘the use of a ball-point pen does not prevent counting the votes mechanically’ is contradicted by the facts: the machine was technically incapable of counting the marks made with a ball-point pen. It was only possible for these votes to be recorded in the purely manual count which was carried out by the commission set up on the instructions of the Second Chamber.

Finally with regard to the discrepancy between the list of candidates declared elected and the list of those elected on the basis of the recount this does not directly affect two of the three applicants since in any case Mr De Dapper is included amongst those elected and Mr Volger is excluded. Mr Bodson's case differs: in both the counts he appears in third position in the category to which he belongs but in the recount he is shown to have obtained more votes than Mr Millar, Mr Dewar and Miss Briand so that he would have been entitled to be included amongst the successful candidates.

Apart from this it was properly emphasized in the interlocutory judgment of 29 September 1976, as I recalled at the beginning of my opinion, that the title and interest of the applicants are also related to their status as electors. As such they were indeed entitled to lodge complaints against all irregularities concerning the voting procedure and the results of the count.

In this connexion it is worthy of note that whilst the fourth paragraph of Article 1 of Annex II to the Staff Regulations provides that the electoral system must be organized in such a way as to ensure the representation of all categories of officials it by no means prescribes that individual members of the Committee must be elected only by persons belonging to their own category. Since the Staff Committee is representative of the entire staff it must be concluded that any official or other servant, purely in his capacity as an elector, has an interest in submitting complaints regarding the representative character of the Committee even if the irregularity complained of has not affected the results of candidates in his category.

On top of this there is a final and decisive consideration: since the number of missing ballot-papers exceeds the difference in the number of votes found by the commission to exist between certain successful candidates and their rivals it cannot be ruled out that, if the nineteen postal ballot-papers and the ten ordinary papers of which all trace has been lost had been recovered and checked in the recount, and if the votes marked on those papers turned out in whole or in part to be in favour of certain of the candidates, the discrepancy between the results announced by the Committee of Tellers and those obtained in the check by the commission might have been even more appreciable, perhaps to the extent of constituting a direct infringement of the interest of another of the applicants (Mr Volger) in his capacity as a candidate.

5.The irregularities revealed by the Court's investigation thus amount to three at least: the electors were not notified in good time of all the details of the voting procedure and in particular they did not know until the last minute that if they used anything other than a felt-tipped pen their vote would not be recorded by the machine; in spite of this the results of the count by the machine were not checked and in this matter only the papers rejected by the machine were counted by hand, so that a large number of votes marked with a ball-point pen on ballot-papers which the machine had not rejected were not recorded; the number of voters announced by the tellers does not coincide with the number of ballot-papers retained from which it may be inferred either that the count of voters was inaccurate or that ballot-papers have been lost.

Naturally all these circumstances have had serious effects upon the composition of the list of successful candidates: the list amended in terms of the results of the recount includes the names of two candidates who obtained enough votes for election instead of two other persons who were declared elected; however if all the votes counted in 1975 by the tellers, eight hundred and eighty instead of eight hundred and fifty-one, had been available, the results might possibly have differed further.

What are the principles and rules in terms of which these irregularities must be appraised? In its interlocutory judgment of 29 September 1976 the Court of Justice referred to the few provisions which Article 1 of Annex II to the Staff Regulations devotes to the election of members of the Staff Committee (in particular to the fact that election shall be by secret ballot, the representation of the various categories of officials and what constitutes a quorum for the validity of elections); and observed: ‘Even though these provisions are incomplete, taken as a whole they show that they were intended to ensure that the Staff Committee is representative. Such a representative character can only be ensured by means of elections the legality of which is guaranteed at all stages of the election proceedings.’ The same judgment also laid down a principle on which the judgment in this case turns: the responsibility of the institution (in this case the Parliament) when the election of the Staff Committee is open to dispute, a responsibility which follows from Article 9 (2) of the Staff Regulations ‘and, in general, from the power of organization which each institution exercises within its own sphere of jurisdiction and from its duty to ensure that officials have complete freedom to choose their representatives in accordance with democratic rules’. The reference to the ‘rules relating to freedom and democracy common to all the Member States in matters of electoral law’ is repeated at another point in the grounds of judgment (No 25) of the same judgment.

The second question is, which general electoral principles have been violated? First, the rule that all the electors must know precisely and in good time the procedure for casting their votes in order that those votes may make a valid contribution to the results of the elections; secondly the elementary principle that the count must be reliable and thorough; thirdly the principle according to which the material used for the elections, especially the ballot-papers, must be carefully conserved after the ballot and counting throughout the period during which complaints may be submitted by the electors so that an administrative or judicial review of the results of the elections may be carried out.

Finally, the third question is: what consequence must be drawn from the violations which have been established?

In my view if the irregularity of the voting procedures or of the count falsifies the result of the election the latter must be declared void: it is in fact essential for the result to constitute a faithful reflexion of the wishes of the electorate. In this connexion the legislation and the case-law of many Member States are in agreement: I shall merely recall the judgment of 26 November 1954 of the French Cour de Cassation Civile (Bulletin des Arrets de la Cour de Cassation 1954, p. 254), the decision of 1 April 1971 of the Belgian Conseil d'État in the case of El. Liege (Recueil des Arrets et Avis du Conseil d'État 1971, p. 399) and the judgments cited by J. R. Vervloet, in ‘Le Contrôle Judiciaire des Elections Sociales’ (Journal des Tribunaux du Travail 1973 at p. 103), the Italian Law No 1034 of 6 December 1971 in particular when read in conjunction with Article 85 of the Decreto del Presidente della Repubblica (Decree of the President of the Republic) No 570 of 16 May 1960 and finally, with regard to the United Kingdom, Section 16 (3) of the Representation of the People Act 1949. All this combines to show the general nature of a criterion which in any case has an irrefragable logical basis of its own: where the wishes of the electorate have not been properly ascertained the election cannot be considered valid.

In the present case the disappearance of twenty-nine ballot-papers does not permit the official results of the count to be corrected with certainty. Accordingly, since it is impossible to replace the list of successful candidates drawn up in 1975 by the tellers with a list which is certainly correct the Court must restrict itself to annulling the elections.

6.The considerations which I have advanced up to this point mean that it is unnecessary to consider the grounds of the application other than those relating to the count. Furthermore, since the Second Chamber did not consider the evidence, principally in the form of witnesses, offered by the applicants in connexion with the other grounds it has already tended to the view that the ascertainment and appraisal of the grounds of claim relating to the count are of preponderant importance in this case.

However it seems to me appropriate to offer some observations on a subject to which frequent reference was made during the appearance of the parties, that is, on the subject of the alleged preparation of batches of ballot-papers, or more precisely their completion in advance by one or more persons other than the electors who then deposited them in the ballot-box. In this connexion it should be recalled that under the system in force in 1975 for the election of the Staff Committee of the European Parliament it was permissible to distribute one ballot-paper to each elector before the ballot took place whilst a second ballot-paper, with an envelope in which the completed ballot-paper was to be inserted, was handed to the elector in the actual polling office. Because of this system the papers were in circulation a few days before polling day and it cannot be excluded, even if complete proof has not been furnished, that a certain number of papers could have been completed and distributed to a section of the electors in the interest of a person or a group, thus encouraging the electors in question to deposit in the ballot-box papers completed by other persons. Thus the principle of the freedom of choice of the elector would certainly have been seriously violated if the elector himself had not been in a position to change his mind and to cast his vote differently on entering the booth or if he had been forced by threats or undue influence to eschew any choice other than that fixed in advance. Nevertheless, whilst this last state of affairs was neither alleged nor much less proved, the fact that a second blank ballot-paper was available at the time of voting left every elector free to deposit in the ballot-box a paper he himself had completed, and quite at variance with what had been suggested by the person or group by whom the ballot-papers had been completed in advance. In the circumstances, even if it is true that certain electors deposited in the ballot-box papers completed in advance by other persons, it cannot be maintained that their freedom of choice was either eliminated or restricted.

Undoubtedly the distribution of two ballot-papers to each elector increased the scope for anyone considerating manipulating the results of the elections by forcefully suggesting his own choices to less strong-minded electors or those less conscious of their rights. One has only to reflect that a thoroughgoing system of threats or blackmail could have been based on an undertaking by any elector under the influence of another person to display the blank voting paper after the elections in order that those who had prepared a ballot-paper in advance could be certain that the latter paper had actually been deposited in the ballot-box. That is why the Chairman of the Committee of Tellers in 1975, in a letter sent on 4 August 1975 to the Chairman of the Staff Committee, made an appropriate suggestion to modify the Rules governing Representation of the Staff by stopping the distribution of ballot-papers before voting. It is to be hoped that this suggestion will be adopted and that only the postal ballot-papers will be distributed in advance. It is hardly necessary to add that an amendment of that aspect of the Rules governing Representation of the Staff should be accompanied by careful reconsideration of other points in the light of the unhappy experience of the elections of 1975. Merely introducing a sophisticated machine for counting the votes by no means constitutes a step forward if, as the advocate for the applicants tellingly remarked in the oral procedure, the laxity of those in charge of the apparatus transforms it into a gaming machine.

7.The Court should thus declare the application well founded, with the necessary consequences as to costs. Moreover it appears to me appropriate to remark that, pursuant to Articles 90 and 91 of the Staff Regulations such a decision implies, as the interlocutory judgment of 29 September 1976 appropriately recalled, the annulment of an act of a Community institution: in this case the refusal of the European Parliament to annul the elections in dispute.

The President of the Parliament must then draw the logical consequences from the judgment within the framework of his powers regarding the Staff Committee and in his capacity as guarantor of the lawfulness of the elections to that Committee.

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(*1) Translated from the Italian.