ORDER OF THE CIVIL SERVICE TRIBUNAL
(Second Chamber)

13 April 2011

Case F‑32/10

Christian Wilk

v

European Commission

(Civil service — Members of the temporary staff — Reimbursement of expenses — Installation allowance — Installation with family at the place of employment — Recovery of undue payments — Action manifestly inadmissible or manifestly lacking any legal basis)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a, whereby Mr Wilk, having received the installation allowance provided for in Article 5 of Annex VII to the Staff Regulations of Officials of the European Union at the double rate, in respect of the installation of his wife at his place of employment, seeks, in substance, annulment of the Commission’s decision to recover the amount resulting from the application of that double rate, and also an order that the Commission pay damages for the harm allegedly sustained.

Held:      The applicant’s action is dismissed as manifestly inadmissible in part and manifestly unfounded in part. The applicant is ordered to pay all the costs.

Summary

1.      Officials — Reimbursement of expenses — Installation allowance — Conditions for granting — Officials with family responsibilities

(Staff Regulations, Annex VII, Art. 5)

2.      Officials — Recovery of undue payments — Conditions — Patent overpayment — Concept

(Staff Regulations, Art. 85; Annex VII, Art. 5)

3.      Officials — Decision adversely affecting an official — Obligation to state the reasons on which the decision is based — Scope

(Staff Regulations, Art. 25)

4.      Officials — Actions — Action for damages brought without a pre-litigation procedure in accordance with the Staff Regulations — Inadmissibility

(Staff Regulations, Arts 90 and 91)

1.      The relevant time for the purpose of determining the residence of the spouse of an official for the grant of the installation allowance at the double rate, and in particular where the spouse has been installed with the official at the latter’s place of employment, as required by Article 5 of Annex VII to the Staff Regulations, is the day following the end of the official’s probationary period, which corresponds to the date on which he is established for the purposes of that provision.

Furthermore, the place where an official’s spouse has fixed the centre of his interests is the result of his personal choice and cannot depend exclusively and automatically on the official’s place of employment. The fact that the official has taken steps to enable his spouse to obtain a residence permit proves only his intention to obtain such a permit for his spouse.

(see paras 26-28)

See:

29 September 2005, T‑195/03 Thommes v Commission, para. 73

2.      According to Article 85 of the Staff Regulations, any sum overpaid is to be recovered, in particular if the fact of the overpayment was patently such that the recipient could not have been unaware of it.

The payment of the installation allowance at the double rate, pursuant to Article 5 of Annex VII of the Staff Regulations, to an official whose spouse was not actually installed with him at his place of employment or near that place at the time of the end of his probationary period constitutes such an irregularity. That irregularity is so manifest that it cannot have escaped any normally diligent official deemed to know the rules governing his remuneration.

(see para. 29)

See:

17 January 1989, 310/87 Stempels v Commission, para. 10

3.      As the dispute in question related to the actual application of a provision of the Staff Regulations in a context well known by an applicant, the decision rejecting his complaint satisfies the requirement to state reasons laid down in Article 25 of the Staff Regulations in so far as it is of such a kind as to enable the official concerned to understand fully the grounds of the decision in question and also to assess whether it is appropriate to bring an action and for the Tribunal to evaluate the lawfulness of the contested decision.

(see paras 36, 37)

See:

18 September 2003, T‑221/02 Lebedef and Others v Commission, para. 61

7 November 2007, F‑57/06 Hinderyckx v Council, para. 27; 8 April 2008, F‑134/06 Bordini v Commission, para. 62

4.      Where an official alleges that an institution is responsible for an illegality having its source not in a decision adversely affecting him but in its conduct, his action must be preceded by a request that the administration make good the harm resulting from the conduct in question and a complaint challenging the merits of the explicit or implicit rejection of that request, failing which his claim for compensation in respect of the conduct must be rejected as manifestly inadmissible.

(see para. 44)

See:

15 July 1993, T‑17/90, T‑28/91 and T‑17/92 Camara Alloisio and Others v Commission, para. 47