JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

10 March 2009

Case F-106/07

Stavros Giaprakis

v

Committee of the Regions of the European Union

(Civil service – Officials – Remuneration – Transfer of part of the emoluments outside the country of employment – Article 17(2)(b) of Annex VII to the old Staff Regulations – Building savings account – Recovery of amounts wrongly paid – Conditions – Irregularity of the transfers – Obvious nature of the irregularity)

Application: brought under Articles 236 EC and 152 EA, in which Mr Giaprakis seeks, first, annulment of the decision of the Committee of the Regions of 21 November 2006 to recover, pursuant to Article 85 of the Staff Regulations, the amounts paid to him in respect of the correction coefficient on part of his emolument transferred to France from April 2004 to June 2005, totalling EUR 1 246.06, second, an order for the Committee of the Regions to reimburse him the sum of EUR 1 246.06 withheld from his remuneration, and finally, to pay him compensation of EUR 1 000 for the non-material damage resulting from the aforementioned decision of 21 November 2006.

Held: The decision of the Committee of the Regions of 21 November 2006 ordering the recovery of sums resulting from the application of the correction coefficient to part of the applicant’s emoluments transferred to France from April 2004 to June 2005, amounting to EUR 1 246.06, is annulled. The Committee of the Regions is ordered to reimburse the applicant EUR 1 246.06, together with default interest from the date of the recovery until the date of the actual payment, at the rate fixed by the European Central Bank for its main refinancing operations and applicable during the period concerned, increased by 2 points. The remainder of the action is dismissed. The Committee of the Regions is ordered to pay all the costs.

Summary

1.      Officials – Actions – Act adversely affecting an official – Definition – Note from the administration informing the official of its intention to recover amounts wrongly paid in view of his failure to provide a satisfactory explanation or additional supporting documentation

(Staff Regulations, Arts 90 and 91)

2.      Officials – Recovery of undue payments – Conditions – Patent overpayment – Known by the official concerned – Transfer of part of the official’s emoluments into a building savings account outside his country of employment

(Staff Regulations, Art. 85; Annex VII, Art. 17(2))

3.      Officials – Actions – Unlimited jurisdiction – Compensation for material harm suffered by an official as a result of the unlawful recovery of an amount

(Staff Regulations, Art. 91(1))

1.      A note from the administration informing an official that it intended, in view of his failure to provide a satisfactory explanation or additional supporting documentation, to recover certain sums wrongly paid, and stating neither the amount of the sum to be recovered or how the recovery was to be effected, cannot be regarded as an act adversely affecting the official, since it does not directly and immediately affect his interests by bringing about a distinct change in his legal situation, nor does it constitute the adoption of a definitive position by the administration. Furthermore, such a note does not allow the official concerned to assess whether it is appropriate for him to contest the note by lodging a complaint under Article 90(2) of the Staff Regulations.

(see paras 45-46)

2.      It is apparent from Article 85 of the Staff Regulations that the recovery of amounts wrongly paid is subject to two cumulative conditions: first, that the payment which the administration seeks to recover must have been irregular, and second, that the official must have known of that irregularity or that the irregularity must have been so obvious that the official could not fail to be aware of it.

Even assuming that Article 17(2) of Annex VII to the Staff Regulations in the version prior to the entry into force of Regulation No 723/2004 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants, which allows an official to transfer part of his emoluments outside his country of employment in order to cover expenditure arising in particular out of commitments proved to have been regularly undertaken by him outside the country where his institution has its seat or outside the country where he carries out his duties, does not apply where the transfer is to a building savings account recognised as such by the legislation of a Member State, the irregular nature of such a payment is not so obvious that the official concerned could not fail to be aware of it, particularly where it is not unequivocally clear from the wording of the applicable provisions whether that rule applies to such a transfer, and where the conduct of the competent departments might reasonably have led the official to believe that they were inclined to deem it applicable.

(see paras 58, 68, 69, 72, 74)

3.      The Community civil service judicature, which has unlimited jurisdiction in financial matters, has the power to order, by way of compensation for material harm, repayment to the applicant of an amount wrongly recovered by the administration, with default interest from the date of the recovery until the date of the actual payment.

(see paras 81-82)

See:

T-29/01 Puente Martín v Commission [2002] ECR-SC I‑A‑157 and II‑833, para. 88; T-22/01 Efthymiou v Commission [2003] ECR-SC I‑A‑177 and II‑891, para. 45

F-126/05 Borbély v Commission [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 73