ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

20 March 2014

Case F‑44/13

Françoise Michel

v

European Commission

(Civil service — Official — Action for damages — Remuneration — Assignment to a third country — Allowance for living conditions — Calculation of allowance — Tax on survivor’s pension wrongly taken into account — Appointing authority’s mistake — Claim for compensation for the harm suffered — Definitive nature of salary slips — Limitation period effective against the official — Article 85 of the Staff Regulations — Not applicable — Article 76 of the Rules of Procedure — Action manifestly inadmissible)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Michel essentially seeks annulment of the decision of 25 January 2013 by which the appointing authority of the European Commission accepted her complaint only in part by refusing, on the ground that the application was out of time, to pay her full compensation for damage linked to the miscalculation, over a period of almost ten years, of the amount to which she was entitled in respect of the allowance for living conditions.

Held:      The action is dismissed as being in part manifestly inadmissible and in part manifestly unfounded. Ms Michel is to bear her own costs and is ordered to pay the costs incurred by the European Commission.

Summary

1.      Actions brought by officials — Actions for damages — Pleas in law — Unlawfulness of a decision of the appointing authority not challenged in good time — Inadmissibility

(Staff Regulations, Arts 90 and 91)

2.      Actions brought by officials — Prior administrative complaint — Time-limits — Mandatory

(Staff Regulations, Arts 90 and 91)

3.      Actions brought by officials — Claim for compensation addressed to an institution — Reference to difficulties in understanding the rules governing salary to justify the lateness of the claim — Not permissible — Administration’s voluntary payment of allowance calculated as requested by the applicant — Applicability of the time-limit for claims for recovery of sums unduly paid — Excluded

(Staff Regulations, Art. 85, second para., and Art. 90(1))

4.      Officials — Remuneration — Entitlement to default interest — Conditions

1.      An official or other staff member who has failed to challenge acts adversely affecting him by lodging a complaint and, subsequently, bringing an action for annulment in good time cannot remedy that omission and thus obtain further time for bringing proceedings by subsequently lodging a claim for compensation the purpose of which is clearly to obtain the same financial outcome as would have resulted from an action, in good time, for annulment of those acts.

(see para. 45)

See:

13 July 1993, T‑20/92 Moat v Commission, para. 46

28 September 2011, F‑12/11 Hecq v Commission, para. 50 and the case-law cited therein

2.      The time-limits for lodging a complaint and bringing an action, which are mandatory and not at the discretion of the parties or the court, are intended to safeguard, within the EU institutions, the legal certainty which is essential for their successful operation, by preventing Union measures which involve legal effects from being called in question indefinitely, and to prevent any discrimination or arbitrary treatment in the administration of justice. Consequently, the possibility of submitting a request as provided for in Article 90(1) of the Staff Regulations does not allow an official to set aside the time-limits laid down in Articles 90 and 91 of the Staff Regulations for the lodging of a complaint and the bringing of an action by indirectly calling in question, by means of that later request, a previous decision which had not been challenged within the time-limits.

In that regard, because of the mandatory nature of those time-limits, the fact that an institution agrees to consider the merits of a complaint which is partly out of time and therefore inadmissible cannot have the effect of derogating from the system of mandatory time-limits.

(see paras 46, 68)

See:

13 November 1986, 232/85 Becker v Commission, para. 8

29 January 1997, T‑7/94 Adriaenssens and Others v Commission, paras 7 and 33 and the case-law cited therein; 24 March 1998, T‑181/97 Meyer and Others v Court of Justice, para. 31; 5 March 2008, T‑414/06 P Combescot v Commission, para. 43 and the case-law cited therein

3.      An official cannot justify the lateness of a claim for compensation regarding the basic amount of his taxable salary by relying on difficulties he has experienced in identifying and understanding the calculation method. Any normally diligent official is deemed to be familiar with the Staff Regulations and more particularly the rules governing his salary.

Furthermore, the fact that the appointing authority decided, purely voluntarily, to apply retroactively the correct calculation of an allowance for which the official concerned satisfied the conditions for granting and which had previously been calculated taking account of the contested taxable amount, does not enable the official to rely, mutatis mutandis, on the time-limit of five years laid down in the second sentence of the second paragraph of Article 85 of the Staff Regulations. In any case, an institution does not commit any breach of its administrative duty in not drawing an official’s attention to the method for calculating a benefit. The situation of the institution, which is responsible for the payment of thousands of salaries and allowances of all kinds to its officials and other staff, cannot be compared to that of the official, who has a personal interest in checking the payments made to him every month.

(see paras 52-54, 69-73)

See:

18 March 1975, 44/74, 46/74 and 49/74 Acton and Others v Commission, para. 29; 27 October 1987, 176/86 and 177/86 Houyoux and Guery v Commission, paras 9 and 14 to 16

10 February 1994, T‑107/92 White v Commission, para. 47; 5 November 2002, T‑205/01 Ronsse v Commission, para. 52; 16 May 2007, T‑324/04 F v Commission, para. 144 and the case-law cited therein

12 March 2014, F‑128/12 CR v Parliament, para. 45 and the case-law cited therein

4.      Where an error committed by the administration in applying a provision of the Staff Regulations does not go beyond the routine errors and corrections likely to arise in the calculation of monthly salaries, whether to the advantage or disadvantage of the official concerned, it is usual that, where those errors are corrected as soon as they are discovered, default interest is not charged either to the official or to the administration, given that, save in exceptional cases of serious error on the part of the appointing authority, the corrections made following a complaint or an action are no different from the routine corrections.

Furthermore, and in any event, the award of default interest on a sum which the institution intends to repay voluntarily may only be considered, first, where the amount of the principal debt is certain or at least may be determined on the basis of objective evidence, and, second, where the payment in question was then unreasonably delayed by the administration.

(see paras 80, 82)

See:

13 October 1977, 106/76 Gelders-Deboeck v Commission, paras 26 to 29

12 March 1996, T‑361/94 Weir v Commission, para. 52 and the case-law cited therein