ANNEX IXSupplementary provisions
ANNEX IX DISCIPLINARY PROCEEDINGS (Referred to in Articles 2, 27 and 31 of the Staff Regulations) Section 1 General provisions Article 1 1. Whenever an Administrative investigation reveals the possibility of the personal involvement of a staff member, or a former staff member, that person shall rapidly be informed, provided doing so is not harmful to the investigation. 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 staff member to comment may, in agreement with the Director, be deferred. In cases of absolute secrecy, no disciplinary proceedings may be opened before the staff member has been given a chance to comment. 3. If, following an Administrative investigation, no case can be made against a staff member about whom allegations have been made, the investigation in question shall be closed, with no further action taken, by decision of the Director, who shall inform the staff member in writing. The staff member may request that this decision be inserted in his personal file. 4. In any event, conclusions referring by name to a staff member may not be drawn once the investigation has been completed without that staff member having been given the opportunity to comment on facts concerning him. The conclusions shall make reference to these comments. Article 2 The Director shall inform the person concerned when the investigation ends, and shall communicate to him the conclusions of the Administrative investigation report. On the basis of the investigation report, after having notified the staff member concerned of all evidence in the files and after hearing the staff member concerned, the Director may: (a) decide that no case can be made against the staff member, in which case he 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 staff member; or (c) in the case of failure to comply with obligations within the meaning of Article 27 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 3 A staff member 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 4 1. When a Disciplinary Board is established in accordance with Article 2 of this Annex, members may be chosen from the staff members of the SATCEN or from European Institutions or Bodies. 2. The Disciplinary Board shall consist of a chairman and two full members, who may be replaced by alternates. 3. Before beginning its duties, the Disciplinary Board shall appoint a Secretary among the SATCEN's staff members and shall establish its own internal rules, subject to the provisions of this Annex. 4. The Secretary of the Disciplinary Board shall be subject only to the authority of the Disciplinary Board. The Secretary of the Disciplinary Board shall in particular be responsible for matters of current administration of the Disciplinary Board and for all communications. Article 5 1. The Director and the Staff Committee referred to in Article 34 of the Staff Regulations shall each appoint one member and one alternate at the same time. If, for any reason, no member and no alternate has been appointed by Staff Committee, the Director may appoint provisional members to replace them until they are appointed. 2. The chairman and alternate for the chairman shall be appointed by the Director. 3. The chairman, the members and the alternates shall be appointed for a period of three years. However, the SATCEN may provide for a shorter period for members and alternates, subject to a minimum of one year. 4. The staff member concerned shall be entitled to reject one of the Disciplinary Board members within five working days from the notification of the Disciplinary Board's establishment. The Director shall also be entitled to reject one of the Disciplinary Board's members. Within the same time limit, Disciplinary Board members may ask to be excused from duty for legitimate reasons and shall withdraw if there is a conflict of interests. Article 6 1. The chairman and members of the Disciplinary Board shall be completely independent in the performance of their duties. 2. The deliberations and proceedings of the Disciplinary Board shall not be disclosed. Section 3 Disciplinary measures Article 7 1. The Director 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; (g) removal from post, involving termination of contract, accompanied by total forfeiture of the loss of employment indemnity or fixed-term contract allowance. 2. Where the staff member is in receipt of a retirement pension or an invalidity allowance, the Director 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 staff member's dependants. The staff member's income may not, however, be less than the minimum subsistence figure corresponding to the basic salary of a staff member at post C1/1, with the addition of any family allowances payable. 3. A single instance of misconduct shall not give rise to more than one disciplinary penalty. Article 8 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 SATCEN; (c) the extent to which the misconduct involves intentional actions or negligence; (d) the motives for the staff member's misconduct; (e) the staff member's grade and seniority; (f) the degree of the staff member's personal responsibility; (g) the level of the staff member's duties and responsibilities; (h) whether the misconduct involves repeated action or behaviour; (i) the conduct of the staff member throughout the course of his career. Section 4 Disciplinary proceedings not involving the Disciplinary Board Article 9 The Director may, without consulting the Disciplinary Board, decide to close disciplinary proceedings by issuing a written warning or reprimand. In such case the staff member concerned shall be heard before such action is taken by the Director. Section 5 Disciplinary proceedings before the Disciplinary Board Article 10 1. The Director shall submit a report to the Disciplinary 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 staff member concerned and to the chairman of the Disciplinary Board, who shall bring it to the attention of the members of the Disciplinary Board. Article 11 1. Upon receipt of the report, the staff member concerned shall have the right to request and obtain from the SATCEN's Administration, within a reasonable timescale, his complete personal file and to obtain copies of all documents relevant to the proceedings, including exonerating evidence. 2. The staff member concerned shall have not less than one month from the date of receipt of the report initiating the disciplinary proceedings to prepare a defence. 3. The staff member may be assisted by a person of his choice. Article 12 If, in the presence of the Chairman of the Disciplinary Board, the staff member concerned acknowledges misconduct on his part and accepts unreservedly the report referred to in Article 10 of this Annex, the Director may, in accordance with the principle of proportionality between the nature of the misconduct and the penalty being considered, withdraw the case from the Disciplinary Board. Where a case is withdrawn from the Disciplinary Board the Chairman shall deliver an opinion on the penalty considered. Under this procedure the Director may, by derogation from Article 9 of this Annex, impose one of the penalties provided for in Article 7(1)(a) to (d) of this Annex. The staff member concerned shall be informed before acknowledging his misconduct of the possible consequences of such acknowledgement. Article 13 Before the first meeting of the Disciplinary Board, the chairman may give to one of its members the task of preparing a general report on the matter and shall inform the other members of the Disciplinary Board accordingly. The Disciplinary Board may ask to clarify some elements of the Director's Report. Both parties shall be notified regarding the outcome. Article 14 1. The staff member concerned shall be heard by the Disciplinary Board; at the hearing, he may submit observations in writing or orally, whether in person or through a representative. 2. The staff member concerned and the Director may propose to the Disciplinary Board to call witnesses. 3. The SATCEN shall be represented before the Disciplinary Board by a staff member mandated by the Director to this effect. Article 15 After consideration of documents submitted and having regard to any statement made orally or in writing, the Disciplinary 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. The Disciplinary Board shall transmit the opinion to the Director and to the staff member concerned within two months of the date of receipt of the report of the Director, provided that this time limit is commensurate with the degree of complexity of the case. Article 16 1. Expenses incurred on the initiative of a staff member concerned in the course of disciplinary proceedings, and in particular fees paid to a person chosen to assist the staff member or for his defence, shall be borne by the staff member where the disciplinary proceedings result in the imposition of one of the penalties provided for in Article 7 of this Annex. 2. However, the Director may decide otherwise in exceptional cases where the burden on the staff member concerned would be unfair. Article 17 1. After hearing the staff member, the Director shall take his decision as provided for in Articles 8 and 9 of this Annex within two months of receipt of the opinion of the Disciplinary Board. Reasons must be given for the decision. 2. If the Director decides to close the case without imposing any disciplinary penalty, he shall so inform the staff member concerned in writing without delay. The staff member concerned may request that the decision be inserted in his personal file. Section 6 Suspension Article 18 1. If the Director accuses a staff member of serious misconduct, whether through a failure to honour his professional obligations or through an infringement of the law, he may immediately suspend the person accused of that misconduct for a specified or indefinite period. 2. The Director shall take this decision after hearing the staff member concerned, save in exceptional circumstances. Article 19 1. The decision suspending a staff member shall state whether the staff member 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 staff member shall not under any circumstances be less than the minimum subsistence figure corresponding to the basic salary of a staff member at grade C 1, step 1 with the addition of any family allowances payable. 2. The situation of a suspended staff member 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 staff member 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 staff member 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 staff member shall not receive full remuneration until the competent court has ordered his release. 4. Sums withheld under paragraph 1 shall be repaid to the staff member 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 of 3,5 % per year. Section 7 Parallel criminal prosecution Article 20 Where the staff member is prosecuted in respect of acts also giving rise to disciplinary proceedings under this Annex, a final decision in the disciplinary proceedings shall be taken only after a final judgment has been handed down by the court hearing the case. Section 8 Final provisions Article 21 A staff member 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 Director shall decide whether to grant this request. Article 22 Where new facts supported by relevant evidence come to light, disciplinary proceedings may be reopened by the Director on its own initiative or on application by the staff member concerned. Article 23 If no case has been made against the staff member pursuant to Article 15 of this Annex, the staff member shall be entitled to request that the damage suffered should be made good through suitable publicity for the decision of the Director. Article 24 The Director may adopt implementing rules for these procedures.