JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
10 April 2024 (*)
(Civil service – Officials – Remuneration – Dependent child allowances – Article 2(4) of Annex VII to the Staff Regulations – Person treated as a dependent child – Conditions for granting – Article 2(2) of Annex VII to the Staff Regulations – Actual maintenance – Recovery of overpayments – Article 85 of the Staff Regulations – Error of assessment – Legitimate expectations)
In Case T‑50/22,
AL, represented by R. Rata, lawyer,
applicant,
v
European Commission, represented by T. Bohr and L. Hohenecker, acting as Agents,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos, President, N. Półtorak (Rapporteur) and T. Pynnä, Judges,
Registrar: A. Marghelis, Administrator,
having regard to the written part of the procedure, in particular, the order of 17 January 2023, AL v Council and Commission (T‑50/22, not published, EU:T:2023:11), dismissing the action as being inadmissible in so far as it has also been brought against the Council of the European Union,
further to the hearing on 14 September 2023, at which the applicant’s request that the proceedings be stayed was rejected,
gives the following
Judgment
1 By his action under Article 270 TFEU, the applicant, AL, seeks the annulment of the decision of the European Commission of 22 March 2021, in so far as it orders the recovery of certain sums paid in connection with allowances for his mother and three dependent children.
Background to the dispute
2 The applicant has been an official in the General Secretariat of the Council of the European Union since 1 December 2007.
3 Following a request made by the applicant, various allowances were granted to him between 2009 and 2019 in so far as his mother and three other persons were treated as dependent children within the meaning of Article 2(4) of Annex VII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).
4 On 13 May 2019, pursuant to Article 2(2) of the Staff Regulations, the Council adopted Decision (EU) 2019/792 entrusting to the European Commission – the Office for the Administration and Payment of Individual Entitlements (PMO) –the exercise of certain powers conferred on the appointing authority and the authority empowered to conclude contracts of employment (OJ 2019 L 129, p. 3).
5 On 22 July 2020, the applicant was informed by the European Anti-Fraud Office (OLAF) that he was the subject of an investigation opened at the end of 2016, concerning possible fraud relating to his declaration concerning the composition of his family and to the conditions under which he had obtained the corresponding family allowances and the eligibility requirements for the corresponding family allowances.
6 In December 2020, the applicant was informed by OLAF that the investigation referred to in paragraph 5 above had been closed. In addition, OLAF sent the applicant and the General Secretariat of the Council the final report of the investigation concerning the applicant as well as two recommendations. The first concerned the recovery of sums which OLAF considered had been unduly paid to the applicant through those allowances, and the second concerned the opening of disciplinary proceedings.
7 On 10 February 2021, the appointing authority of the Council (‘the AA’) decided, in accordance with the provisions of Article 3 of Annex IX to the Staff Regulations, to initiate disciplinary proceedings against the applicant.
8 By a note of 3 March 2021, the Office for the Administration and Payment of Individual Entitlements (PMO) of the Commission informed the applicant that, following the OLAF recommendations, the unduly received amounts, corresponding to a total amount, excluding interest, of EUR 142 824.71, would be recovered and that he had the opportunity to submit his observations on that decision within 15 days of its notification. On 19 March 2021, the applicant sent observations to the PMO.
9 By the decision of 22 March 2021, the PMO informed the applicant that, having regard to OLAF’s final report and after an analysis of his observations, it had been decided to implement the note of 3 March 2021 and to issue the corresponding recovery order pursuant to Article 85 of the Staff Regulations, concerning the recovery of overpayments. In particular, recovery of the amount of allowances paid was ordered:
– in respect of the applicant’s mother, as regards the period from 1 October 2009 to 30 September 2015, as had been decided in the decision of 22 March 2021, in so far as the mother could not be treated as a dependent child within the meaning of Article 2(4) of Annex VII to the Staff Regulations and the applicant had deliberately misled the administration within the meaning of the second paragraph of Article 85 of the Staff Regulations by failing to declare his military pension when applying for the allowance at issue;
– in respect of the applicant’s two dependent children (‘A and B’), to whom he was uncle-by-marriage and who had been placed in foster family care with him for the period from 1 August 2010 to 31 July 2013, for one, and from 1 August 2010 to 31 March 2013, for the other, as had been decided in the decision of 22 March 2021, since the foster placement relationship no longer legally existed, given the decision of the Romanian child protection authorities of 30 January 2013, which had put an end to the applicant’s foster family placement measures. Moreover, the applicant deliberately misled the administration, within the meaning of the second paragraph of Article 85 of the Staff Regulations, concerning the end of the foster placement period of the two children;
– in respect of the applicant’s adoptive daughter (‘C’), for whom he had secured an adoption decision on 16 April 2019 by a Romanian court, as regards the period from 1 March 2019 to 31 January 2021 and the cessation of payment of allowances from 1 February 2021, as had been decided in the decision of 22 March 2021, on account of the fact that the applicant had not adduced any evidence of C’s actual maintenance.
10 On 22 June 2021, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the decision of 22 March 2021.
11 On 27 September 2021, at the end of the disciplinary proceedings, the AA of the Council adopted the penalty of removal from post in respect of the applicant, in accordance with Article 9(1)(h) of Annex IX to the Staff Regulations.
12 On 22 October 2021, the Director-General for Human Resources and Security of the Commission adopted a decision ruling on the complaint of 22 June 2021.
13 By that decision, the Director-General for Human Resources and Security of the Commission rejected in part the applicant’s complaint against the decision of 22 March 2021, maintaining that it was necessary to cease payment of the family allowances which he received in respect of C and to order recovery of a number of family allowances received by him. That complaint was nevertheless upheld as regards the allowances received by the applicant in respect of A and B for the period from 1 August 2010 to 29 January 2013.
Forms of order sought
14 The applicant claims that the Court should:
– annul the decision of 22 October 2021 ruling on the complaint in so far as it upholds the decision of 22 March 2021;
– order the Commission to pay the costs.
15 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
Subject matter of the dispute
16 By his action, the applicant asks the Court to annul the decision of 22 October 2021 ruling on the complaint in so far as it upholds the decision of 22 March 2021.
17 According to settled case-law, an administrative complaint, as referred to in Article 90(2) of the Staff Regulations, and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Consequently, the action before the judicature, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint would differ from that of the measure against which that complaint was made (see judgment of 27 October 2016, CW v Parliament, T‑309/15 P, not published, EU:T:2016:632, paragraph 27 and the case-law cited).
18 Furthermore, in view of the evolving nature of the pre-litigation procedure, an express decision rejecting a complaint which contains only further particulars and thus merely reveals, in a detailed manner, the grounds for confirming the earlier decision does not constitute an act adversely affecting the person concerned. Nevertheless, that evolving nature of the pre-litigation procedure means that those further particulars must be taken into consideration in assessing the legality of the contested act (see judgment of 14 July 2021, IN v Eismea, T‑119/20, not published, EU:T:2021:427, paragraph 39 and the case-law cited).
19 It has also been held that an express decision rejecting a complaint could, in the light of its content, not be confirmatory of the measure contested by the applicant. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the judicature, which will take it into consideration when assessing the legality of the contested measure or will even regard it as an act adversely affecting the applicant replacing the contested measure (see judgment of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraph 34 and the case-law cited).
20 In the present case, the decision ruling on the complaint changed in part the decision of 22 March 2021, maintaining allowances in respect of A and B for the period from 1 August 2010 to 29 January 2013. It has therefore changed in part the original decision, within the meaning of the case-law cited in paragraph 19 above.
21 However, the decision ruling on the complaint has upheld the decision of 22 March 2021 concerning the parties who form part of the present action. Therefore, the annulment of the decision ruling on the complaint would have no effect on the legal position of the applicant distinct from that which follows from the annulment of the decision of 22 March 2021 (see, to that effect, judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 33 and the case-law cited).
22 It follows that the action must be understood as being directed against the decision of 22 March 2021 in so far as it concerns certain allowances paid to the applicant for his mother and for three dependent children (‘the contested decision’), the legality of which will be examined taking into consideration the reasoning of the decision ruling on the complaint.
23 At the stage of the reply, the applicant also requested the Court, referring to the arguments submitted in the case which gave rise to the order of 22 December 2022, AL v Commission (T‑692/21, not published, EU:T:2022:862), to annul the OLAF acts and decisions related to investigation OF/2016/0928/A1 in which the applicant was designated as the person concerned, including the final report, recommendations and their preparatory and follow-up acts and decisions signed by the Director-General of OLAF and his representatives.
24 The Court finds that, under Article 76(d) of the Rules of Procedure of the General Court, only the forms of order set out in the application initiating proceedings may be taken into consideration and that, consequently, as a matter of principle, a party may not submit fresh claims or extend the subject matter of existing claims in the course of the proceedings. Accordingly, the claim for annulment raised for the first time in the reply must be rejected as inadmissible. No new factor capable of affecting the subject matter of the action had arisen to justify the belated formulation of those claims in the course of the proceedings (see, to that effect, judgments of 18 May 2017, Makhlouf v Council, T‑410/16, not published, EU:T:2017:349, paragraph 28, and of 16 September 2013, Glantenay and Others v Commission, F‑23/12 and F‑30/12, EU:F:2013:127, paragraph 36 and the case-law cited).
Substance
25 In support of his action, the applicant relies on five pleas in law, alleging, first, infringement of Articles 4, 5, 9 and 10 of the Council Decision of 29 April 2004 adopting the general implementing provisions concerning a person treated as a dependent child (‘the GIP’); secondly, infringement of Article 85 of the Staff Regulations and an error of assessment concerning the allowance for his mother treated as a dependent child; thirdly, failure to have regard to the principle of protection of legitimate expectations and to the principle of sound administration; fourthly, infringement of Article 85 of the Staff Regulations and an error of assessment concerning the dependent child allowance in respect of A and B; and, fifthly, infringement of Article 85 of the Staff Regulations and an error of assessment concerning the dependent child allowance in respect of C.
First plea in law, alleging infringement of Articles 4, 5, 9 and 10 of the GIP
26 By his first plea, the applicant disputes, in essence, the calculations made by the Commission pursuant to Articles 4, 5, 9 and 10 of the GIP.
27 According to the applicant, the AA misapplied the GIP in its assessment concerning the allowances paid in respect of his mother. First, the AA made an error in the calculations of his mother’s maintenance costs by deducting the ‘official’s other income’ and the ‘contribution to maintenance of mother by another person’ under Article 5 of the GIP, instead of deducting the costs under Article 9 of the GIP, as required by the latter provision. That error distorted the entire calculation and notably the comparison, under Article 4 of the GIP, between the maintenance costs and the amount of the allowance.
28 In the applicant’s view, in accordance with Article 5(1) of the GIP, the AA should only deduct the net income of his mother from 40% of the basic monthly salary of an official in the first step of grade AST 1. The AA also deducted the applicant’s other net income and the contribution to the maintenance of his mother by another person considerably and falsely reduced the maintenance costs to approximately EUR 200 per month, whereas the maintenance costs were in fact approximately EUR 500 per month. According to the applicant, that error was further replicated at stage 3 of the calculation, in the comparison of the incorrectly calculated maintenance costs and the amount of the allowance granted.
29 Secondly, according to the applicant, the calculation of the maintenance costs, with or without the error allegedly made by the AA, makes those costs always more than 20% of the taxable amount of his remuneration. The only exception concerns the period from 1 October 2009 to 30 June 2010 during which the applicant had no dependent child. Even a negative result, following the comparison set out in Article 9 of the GIP, does not automatically disqualify the request for allowances if the conditions of Article 10 of the GIP are satisfied, as is the case here. The applicant states that, as regards the period in question, he had exceptional and particularly high costs on account of the maintenance of his mother. Therefore, the AA infringed Articles 9 and 10 of the GIP.
30 In the reply, the applicant reiterates that the maintenance costs should be calculated in accordance with Article 5 of the GIP and not in accordance with Article 9 of the GIP, which refers explicitly to Article 5 of the GIP, as the Commission contends. The applicant also submits that the cost of maintenance becomes ‘high’ when the amount of that maintenance, as calculated in accordance with Article 5 of the GIP, less the amount of contributions by other persons to such maintenance in accordance with the provisions of Article 6 of the GIP and ‘all the official’s other net income’, including gifts or payments for military service, is more than 20% of the taxable amount of the official’s remuneration.
31 Thirdly, the applicant claims that the allowance is lower than the maintenance costs and that, consequently, he is entitled to that allowance. Accordingly, the AA infringed Article 4 of the GIP.
32 The Commission disputes the applicant’s arguments.
33 Under Article 2(4) of Annex VII to the Staff Regulations, an adult or a member of the official’s family, other than his or her legitimate, natural or adoptive children or those of his or her spouse may be regarded as a ‘dependent child’, exceptionally, and by reasoned decision of the AA of the institution, body or agency of the European Union concerned. It is necessary in that regard that two conditions be satisfied, namely the official must have, first, a ‘legal responsibility to maintain’ in respect of that person and, secondly, ‘maintenance [of that person] involves heavy expenditure’ on the part of that official (judgment of 16 January 2018, SE v Council, T‑231/17, not published, EU:T:2018:3, paragraph 38).
34 Moreover, it is for the official to prove that the conditions to be satisfied in order to obtain payment of an allowance are met (see order of 17 June 2019, BS v Parliament, T‑593/18, not published, EU:T:2019:425, paragraph 39 and the case-law cited).
35 According to recital 2 of the GIP, those conditions have been adopted for the purpose of ensuring a uniform application of Article 2(4) of Annex VII to the Staff Regulations.
36 Articles 4 and 9 of the GIP lay down two cumulative conditions which must be satisfied in order for a person to be treated as a dependent child and, more specifically, in order to determine whether the financial burden arising from the maintenance of the person in respect of whom the request to that effect confers eligibility for an allowance.
37 In particular, first, under Article 4 of the GIP, the maintenance costs must be at least equal to the amount to which such treatment gives rise. Secondly, Article 9 of the GIP provides that maintenance of the person whose treatment as a dependent child is requested by the official is to be considered as imposing high costs on him or her when the amount of the maintenance cost is more than 20% of the taxable amount of the official’s remuneration. The percentage figure is to be increased by 10 for each of the other persons whose treatment as a dependent child is requested by the official.
38 Article 5(1) of the GIP provides that the cost of maintaining the person to the official requesting treatment of the person as a dependent child is to be taken into consideration only up to an amount equivalent to 40% of the basic monthly salary of a grade 1 official at the first incremental step where that person lives permanently with the official, and 50% of that basic monthly salary, where that person does not live permanently with the official. From those amounts the net income of that person is to be deducted.
39 The point on which the Commission and the applicant disagree concerns the determination of the amount which must be taken into account in order to compare the maintenance costs in the light of the two conditions set out in Articles 4 and 9 of the GIP.
40 According to the Commission, the maintenance costs must be calculated taking into account all of the provisions of Section 3 of the GIP, namely Articles 5 to 9, and the amount thus obtained must be compared with the conditions set out in Articles 4 and 9. However, on the one hand, the applicant argues that the maintenance costs must be calculated only in relation to Article 5 and by deducting only his mother’s income in order to ascertain whether those costs are at least equal to the amount resulting from the acknowledgment of such treatment, within the meaning of Article 4 of the GIP. On the other hand, compliance with the condition of ‘high costs’, within the meaning of Article 9 of the GIP, is ascertained by deducting the contribution by another person to the maintenance and the official’s other income, such as, in the present case, his military pension, and by comparing that income with 20% of the taxable amount of the official’s remuneration.
41 In that regard, it must be observed that, as follows from paragraph 38 above, Article 5(1) of the GIP establishes a cap for calculating maintenance costs, but does not determine the calculation of all maintenance costs.
42 It follows from Section 3 of the GIP, entitled ‘High costs criterion’, that, in order to assess the maintenance costs, it is necessary to take into account any actual income and any property-related financial advantage concerning the person to be treated as a dependent child and the actual income of any kind of the person requesting the allowance at issue, in accordance with Article 7 of the GIP. Moreover, it is also necessary to assess the proportion in which other persons who have a legal responsibility to maintain must participate in the maintenance, in accordance with Article 6 of the GIP, and to make any possible deduction, in accordance with Article 9 of the GIP. In that connection, the provisions contained in that section seek other sources of income in order to reduce maintenance costs as much as possible and setting a minimum threshold of the costs to be taken into consideration as a result of the maintenance of the person treated as a dependent child (see, by analogy, judgment of 19 December 2019, Zotkov v Commission, T‑457/18, not published, EU:T:2019:875, paragraph 40).
43 In particular, Articles 5 and 9 of the GIP form part of Section 3 of the GIP, entitled ‘High costs criterion’. In that respect, all of those provisions which make it possible to determine the way of calculating the amount of the maintenance costs, depending on the number of persons in respect of whom treatment as a dependent child is requested, according to whether the person or persons live or do not live with the person making the request and depending on the marital status or state of health of the person or persons to be treated as a dependent child. Article 6 of the GIP states that persons other than the person making the request to be treated as a dependent child, who also have a legal responsibility to maintain the persons to be treated as a dependent child, must share the costs in proportion to their income. Article 7 of the GIP takes into account the actual income of any kind, both of the person making the request and of the person concerned by that request, including, inter alia, rental value, family allowances and other allowances and pensions, as well as any potential savings or property-related financial advantage concerning that person. Article 8 of the GIP provides for the application of a correction coefficient and, if necessary, the conversion into euro of the sums set out in Articles 5 to 7, 9 and 12 of the GIP and referred to at the same time in the Staff Regulations (see, by analogy, judgment of 19 December 2019, Zotkov v Commission, T‑457/18, not published, EU:T:2019:875, paragraph 37).
44 Article 9 of the GIP, in addition to setting out the condition for costs to be regarded as being ‘high’, determines the calculation to be carried out to establish the amount of the maintenance costs, stating that from the basic amount, prescribed in accordance with Article 5 of the GIP, the other income of the official concerned and the proportion from other persons who have a legal responsibility to maintain, provided for in Article 6 of the GIP, must be deducted.
45 Accordingly, Article 9 of the GIP states that the amount of the maintenance costs is calculated on the basis of the ceiling laid down in Article 5 of the GIP, less the amount of contributions by other persons to such maintenance, in accordance with the provisions of Article 6 of the GIP, and all the official’s other net income.
46 Therefore, the maintenance costs which the official must support are taken into account, under Article 5 of the GIP, up to an amount equivalent to 40% of the basic monthly salary of a grade 1 official at the first incremental step where that person in respect of whom treatment as a dependent child is requested lives permanently with the official, less the income of that person. Although that calculation constitutes the starting point for determining the amount of the maintenance costs, any contribution to the maintenance of that person by a third party (Article 6 of the GIP) must be deducted, the coefficient corrector of the place of residence must be applied (Article 8 of the GIP) and any other income of the official from other sources must be deducted (Article 9 of the GIP).
47 Once the amount of the maintenance costs is calculated, first, it must be ascertained whether those costs may be classified as ‘high’, pursuant to Article 9 of the GIP, namely where the amount is more than 20% of the taxable amount of the remuneration of the official concerned, increased by 10% for each of the persons whose treatment as a dependent child is requested by the official.
48 Secondly, it must be established whether those costs are at least equal to the amount to which such treatment gives rise, as set out in Article 4 of the GIP.
49 Therefore, the GIP establish objective criteria and a minimum twofold threshold by listing any income and any advantage.
50 In the present case, the PMO deducted from the amount equivalent to 40% of the basic monthly salary of a grade 1 official at the first incremental step, taking account of the correction coefficient applied for Belgium, within the meaning of Article 8 of the GIP, first, the income of the applicant’s mother, in accordance with Article 5 of the GIP; secondly, the rental value of the property owned by the mother pursuant to Articles 5 and 7 of the GIP; thirdly, the contribution by another person to the maintenance of the mother, according to Article 6 of the GIP; and, fourthly, the applicant’s other net income corresponding to his military pension under Article 9 of the GIP.
51 That calculation has made it possible to determine the amount of the costs assumed by the applicant for his mother’s maintenance.
52 Moreover, the PMO has ascertained whether the condition for classifying those costs as ‘high’ within the meaning of Article 9 of the GIP and the condition set out in Article 4 of the GIP were satisfied, by comparing the amount of the maintenance cost obtained with, first, 20% of the taxable amount of the remuneration (Article 9) and, secondly, the amount to which such treatment gave rise (Article 4).
53 Consequently, the Commission correctly applied Articles 4, 5 and 9 of the GIP, since the calculations were made by the PMO in accordance with the procedure described in paragraphs 46 to 48 above.
54 In that regard, it must be observed that, if it were allowed to exclude, when assessing the maintenance costs of the person to be treated as a dependent child, the official’s net income from other sources and the contribution by another person to the maintenance of the mother, the final result would not represent the actual situation which the administration could rectify by exceptionally attributing, in accordance with Article 2(4) of Annex VII to the Staff Regulations, the allowance at issue, because it does not correspond to the official’s actual financial burden, on account of the maintenance of a person other than a dependent child. Furthermore, those costs correspond to two different amounts, depending on the calculation made.
55 Lastly, the applicant submits that, for the period from 1 October 2009 to 30 June 2010, even if the conditions set out in Article 9 of the GIP were not satisfied, he had particularly high costs on account of his mother’s maintenance, with the result that the AA should have granted him the benefit of treatment as a dependent child within the meaning of Article 10 of the GIP. In that regard, it must be recalled that that provision leaves open the possibility for the administration to attribute the allowance, even if the limit of 20% laid down in Article 9 of the GIP has not been reached, in the event that the costs are nonetheless particularly high. First, Article 10 of the GIP applies by way of exception and constitutes an option for the AA, which may grant that benefit without having any obligation to do so. Secondly, it should be noted that the applicant adduces no evidence to substantiate his claim.
56 It follows that the first plea must be rejected as unfounded.
Second plea in law, alleging infringement of Article 85 of the Staff Regulations and an error of assessment concerning the allowance for the applicant’s mother treated as a dependent child
57 By his second plea, the applicant claims, in essence, that the Commission made an error of assessment by taking the view that he had deliberately misled the administration in order to obtain payment of the allowance at issue, in so far as he had not disclosed the amounts received in respect of his past military service and that the Commission infringed Article 85 of the Staff Regulations.
58 The applicant submits that it was possible to treat his military pension as gifts and payments received in respect of his past military service within the meaning of the second paragraph of Article 11 of the Staff Regulations, with the result that that pension did not need to be declared in the requests to treat his mother as a dependent child. The applicant states that he was convinced that he could receive that kind of gift or payment without requesting from the AA any permission whatsoever in that regard and without being required to disclose such information. He claims that, in the absence of any irregularity, the recovery of overpayments pursuant to Article 85 of the Staff Regulations is not applicable.
59 In support of his argument, the applicant maintains that the second paragraph of Article 11 of the Staff Regulations prevails, as a provision of secondary legislation, over Article 7 of the GIP, which is tertiary legislation and that the AA was perfectly aware that he was a retired member of the military.
60 The Commission disputes the applicant’s argument.
61 Under the first paragraph of Article 85 of the Staff Regulations, ‘any sum overpaid shall be recovered if the recipient was aware that there was no due reason for the payment or if the fact of the overpayment was patently such that he could not have been unaware of it’.
62 Moreover, under the second paragraph of Article 85 of the Staff Regulations, the request for recovery of a sum overpaid must be made no later than five years from the date on which the sum was paid. However, where the AA is able to establish that the recipient deliberately misled the administration with a view to obtaining the sum concerned, the request for recovery is not to be invalidated even if that period of five years has elapsed.
63 Such is the case, in particular, where the official has not consented to provide the administration with all the information concerning his or her personal situation or to bring to its notice changes that have taken place in his or her personal situation, or where he or she took steps to make it more difficult for the AA to detect the undue nature of the payment he or she received, including by supplying incorrect or inaccurate information (see judgment of 11 November 2020, AV and AW v Parliament, T‑173/19, not published, EU:T:2020:535 paragraph 106 and the case-law cited).
64 The objective pursued by Article 85 of the Staff Regulations is to protect the financial interests of the European Union in the specific context of relations between the institutions of the Union and their staff, that is to say, persons who are bound to those institutions by the specific duty of loyalty, as set out in Article 11 of the Staff Regulations, which requires, in particular, that an official is to conduct himself or herself ‘solely with the interests of the Union in mind’ and carry out the duties assigned to him or her ‘in keeping with his [or her] duty of loyalty to the Union’ (see judgment of 30 April 2014, López Cejudo v Commission, F‑28/13, EU:F:2014:55, paragraph 66 and the case-law cited).
65 It is also clear from the wording of the second sentence of the second paragraph of Article 85 of the Staff Regulations, that it is for the administration to prove that the official concerned intended to mislead it (judgment of 12 March 2014, CR v Parliament, F‑128/12, EU:F:2014:38, paragraph 68).
66 In the present case, the Commission took the view that the applicant had deliberately misled the administration, within the meaning of the second paragraph of Article 85 of the Staff Regulations, when he had failed to declare that he was in receipt of a military pension.
67 In particular, it is apparent from the contested decision that the allowance at issue was granted to the applicant by the AA on the basis of his successive requests introduced by submitting a form which contained specific questions on his financial situation and that of the person in respect of whom the application was made. In that form, it was specifically stated that the applicant declared on his honour that the information which was contained in that form was correct and that he would undertake to inform the administration of any changes in that information. In that same form, the applicant replied in the negative to the questions relating to the existence of other income, such as any rents, pensions or savings, and to the question whether the dependent person owned his or her home or had free accommodation.
68 That form was completed by the applicant and sent to the administration on several occasions, with the result that the forms filled in and submitted by the applicant during the period from 2009 to 2014 contained the same information. The allowance for the person treated as a dependent child was granted to the applicant as regards his mother on the basis of that information.
69 However, it is clear from the contested decision and from the OLAF investigation, without it being disputed by the applicant in his written pleadings, that he was in receipt of a military pension when he requested the allowance at issue. Therefore, he failed, on several occasions, to declare that source of income when he filled in and signed those forms.
70 In that respect, the applicant submits that the fact of not declaring to be in receipt of a military pension does not prove his intention to mislead the administration since he was convinced that he was not required to make such a declaration on the ground that it was income within the meaning of the second paragraph of Article 11 of the Staff Regulations and not income within the meaning of Article 7 of the GIP.
71 It should be noted, first, that the second paragraph of Article 11 of the Staff Regulations contained in Title II, entitled ‘Rights and obligations of officials’, prohibits the official from accepting a source of income outside his or her institution without the permission of the AA, namely a favour, gift or payment of any kind whatsoever, except for services rendered either before his or her appointment or during special leave for military or other national service and in respect of such service.
72 It follows from the wording and from the context of the second paragraph of Article 11 of the Staff Regulations, that it lays down an obligation for the official and does not concern the declaration of his or her income in order to receive an allowance for the person treated as a dependent child pursuant to Article 2(4) of Annex VII to the Staff Regulations. Therefore, the second paragraph of Article 11 of the Staff Regulations is not relevant in the present case and could not exempt the applicant from the obligation to declare a part of his income, such as that from his military pension, in a request for allowances. Whether the applicant’s military pension could or could not be treated as gifts or payments within the meaning of Article 11 of the Staff Regulations is not relevant as regards the income declarations which must be made in connection with requests made under Article 2(4) of Annex VII to the Staff Regulations.
73 In other words, although an official may be entitled, under the second paragraph of Article 11 of the Staff Regulations, to receive pension payments for past military service, that does not exempt him or her from the obligation to declare that income in an allowance request under Article 2(4) of Annex VII to the Staff Regulations.
74 Consequently, the applicant explicitly replied in the negative in the application form concerning the allowance at issue to the question whether he received other income, among which the pension was clearly listed as an example, although he was aware of the fact that he was in receipt of a military pension. He also declared on his honour that the information provided was correct and undertook to inform the administration of any changes in that regard. That conduct was repeated on several occasions during the period from 2009 to 2014, in connection with the submission of an application form concerning the allowance at issue pursuant to Article 2(4) of Annex VII to the Staff Regulations.
75 In those circumstances and to the extent that the wording of that form leaves no room for any reasonable doubt concerning the issue of other income received, the applicant’s intention to mislead the administration with a view to obtaining payment of the allowance at issue has been established by the Commission.
76 That finding cannot be called into question by the applicant’s claim that a former official, working at the Council’s Human Resources Directorate had provided advice on the application of Article 11 of the Staff Regulations during the training for the newcomers’ days in December 2007. First, the applicant has neither claimed nor proved that such an explanation concerned the fact that his military pension was covered by the scope of Article 11 of the Staff Regulations and should not be declared in a request for allowances pursuant to Article 2(4) of Annex VII to the Staff Regulations. Secondly, such explanations were of a general nature and did not concern the applicant’s specific situation relating to the grant of that allowance.
77 Therefore, it must be concluded that the Commission has not made an error of assessment and has not infringed Article 85 of the Staff Regulations.
78 Accordingly, the second plea must be rejected as unfounded.
Third plea in law, alleging failure to have regard to the principle of the protection of legitimate expectations and to the principle of sound administration
79 By his third plea, the applicant claims, in essence, that the AA was aware of the fact that he was in receipt of a military pension and that it had therefore failed to have regard to the principles of the protection of legitimate expectations and of sound administration in so far as the AA did not assist him in respect of issues concerning the allowance pursuant to Article 2(4) of the Staff Regulations.
80 The applicant maintains that he was transparent with the AA from the beginning of the employment relationship and that he informed the AA that he was in early retirement as a military official. The applicant submits that the AA thus failed in its duty of assistance towards him, which is contrary to the principle of the protection of legitimate expectations and to the principle of sound administration. According to the applicant, it was for the AA to provide, actively and on its own initiative, assistance, when he was newly recruited, in order to avoid the suspicion of misconduct which had recently been levelled against him by OLAF.
81 The Commission disputes the applicant’s arguments.
82 It should be noted that the applicant’s North Atlantic Treaty Organization (NATO) identity card, which mentions that he was a member of the military staff, was sent to the AA at the time of his entry into service with the Council and that the applicant had stated that he was an official who had resigned for early retirement. However, those factors were not capable, in themselves, of leading the administration to conclude that, in the procedure concerning the request for allowances, and, therefore, in a procedure that is different from the one that concerned his entry into service in the context of which that information had been provided, the applicant was in receipt of a military pension.
83 In addition, since the applicant had explicitly declared that he was not in receipt of other income and had not sought advice from the AA as regards the nature of his military pension, the Council could not have been expected to doubt the applicant’s declarations or to ask the applicant whether he was in receipt of a military retirement pension.
84 Accordingly, in the light of the foregoing, the applicant’s arguments that the principles of the protection of legitimate expectations and of sound administration were disregarded, in so far as they are based on an alleged failure to comply with the duty of assistance by the AA must be rejected, since the AA did not fail to comply with that duty.
85 In addition, the fact that the applicant obtained clarifications during the training for the newcomers’ days in December 2007 concerning the application of Article 11 of the Staff Regulations cannot give rise to legitimate expectations in that respect. According to settled case-law, three conditions must be satisfied in order to claim entitlement to the protection of legitimate expectations. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the authorities. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (see judgment of 28 September 2022, Grieger v Commission, T‑517/21, not published, EU:T:2022:588, paragraph 81 and the case-law cited).
86 In the present case, the applicant does not establish that the information which he allegedly received during the training for the newcomers’ day in December 2007 were precise, unconditional and consistent assurances originating from authorised and reliable sources, within the meaning of the case-law cited in paragraph 85 above.
87 Accordingly, those arguments and the third plea must be rejected as unfounded.
Fourth plea in law, alleging infringement of Article 85 of the Staff Regulations and an error of assessment concerning the allowance in respect of A and B
88 By his fourth plea, the applicant claims, in essence, that the Commission made an error of assessment in taking the view that he had deliberately misled the administration concerning the end of A and B’s foster placement period with his family for the period between 1 February and 31 July 2013.
89 First, according to the applicant, the AA made an error of assessment by ordering recovery of part of the allowances paid in respect of A and B following the decision terminating their placement, since the decision granting the allowance for A and B was based solely on consular documents which remained valid and not on the placement decision of 28 July 2010.
90 Secondly, the applicant submits that he had not been notified in good time of the decision terminating A and B’s placement and that, for that reason, he had not informed the AA of the end of their foster family placement. In addition, according to the applicant, the annexes to the OLAF report do not contain any proof that the applicant was notified at the beginning of 2013 of the termination of the foster family placement.
91 Consequently, the AA made an error of assessment in finding that the applicant had acted with direct intention to mislead it within the meaning of the second sentence of the second paragraph of Article 85 of the Staff Regulations.
92 The Commission disputes the applicant’s arguments.
93 That plea needs to be examined in the light of the case-law cited in paragraphs 61 to 65 above.
94 In particular, as follows from the case-law cited in paragraph 63 above, an official deliberately misleads the administration where he or she fails to bring to its notice changes that have taken place in his or her personal situation.
95 In the present case, the applicant, together with A and B’s parents, asked the competent Romanian authorities to terminate the foster family placement. The decision which put an end to the foster placement measures was adopted on 30 January 2013. However, the applicant disputes being aware of that decision on the ground that he had not been notified of that decision.
96 Even if the applicant did not receive notification of that decision, it is reasonable to presume that he had been aware of the fact that A and B’s placement had ended, given that he himself had made the request. Therefore, it was for the applicant to inform the Council of the desired change concerning his personal situation and, if he had any doubts concerning his request to the Romanian authorities regarding the end of those placements, he ought to have requested information from those authorities, since receipt of allowances for A and B depended on the processing of his request.
97 It follows from those circumstances that the applicant, having himself submitted the request to have A and B’s foster family placement ended, could not be unaware of that change in his personal situation, which was closely linked to the grant of the allowance sought. Accordingly, the Commission was correct in finding that, by failing to bring that change to the attention of the administration, the applicant had deliberately misled it, as is apparent from the case-law cited in paragraph 94 above.
98 It follows that the Commission was entitled to take the view that the applicant had deliberately misled the administration by failing to disclose the termination, sought by the applicant himself, of A and B’s foster placement period with his family as from 1 February 2013.
99 That conclusion is not called into question by the possibility that the applicant allegedly maintained A and B beyond January 2013, inasmuch as, without legal recognition, such maintenance cannot justify the grant of an allowance pursuant to Article 2 of Annex VII to the Staff Regulations.
100 In the light of the application of Article 85 of the Staff Regulations, the fact that an action is pending before the Romanian courts against the decision terminating the foster family placement is also irrelevant, since that decision has in fact produced legal effects as from January 2013.
101 Likewise, the question of on the basis of which documents the allowance at issue had been granted, namely the consular documents or the placement decision of 28 July 2010, does not imply that the AA made an error of assessment by requesting the recovery of those allowances paid on the ground of the adoption of the decision terminating the foster family placement of 30 January 2013. Even though the allowance had been maintained for the period subsequent to 31 July 2011, following the submission of consular documents confirming that A and B were going to reside with the applicant in order to receive medical treatment, without a new placement decision having been requested, the fact remains that it is the applicant’s maintenance costs in respect of A and B which justified the grant of those allowances.
102 Accordingly, it must be concluded that the Commission did not infringe Article 85 of the Staff Regulations and, consequently, the fourth plea must be rejected as unfounded.
Fifth plea in law, alleging infringement of Article 85 of the Staff Regulations and an error of assessment concerning the dependent child allowance in respect of C
103 The applicant claims, in essence, that C, in respect of whom he had requested allowances, was actually maintained by him. First, the applicant submits that he provided the AA with proof of that actual maintenance by submitting, inter alia, his bank account statements as well as C’s bank account statements, which shows that, since 11 April 2019, he had made payments to C’s account. In addition, according to the applicant, the AA’S request to supply all of C’s account statements is clearly disproportionate and abusive, which explains that the applicant did not respond positively to that request. However, the applicant claims that it is apparent from the statements which he annexed to the application that C actually used the allowances herself and that there have been no transfers from her account to the applicant’s account. Those findings, which follow from an analysis of C’s bank account statements, are also confirmed by C’s declaration of 6 December 2021 before the Belgium administration, the witness statement of one of her peers and that of her declared partner.
104 Secondly, according to the applicant, C’s valid Belgian passport and ID card show that she resides in Belgium and not elsewhere.
105 Thirdly, the applicant submits that the AA was wrong to call into question, in the contested decision, his loyalty towards the institution for which he works, as defined in the first paragraph of Article 11 of the Staff Regulations. The request for allowances is not a duty assigned to the official within the meaning of that provision, but a right which he or she may or may not exercise under the Staff Regulations. Accordingly, any misconduct related to the requests for allowances cannot constitute a breach in the performance of duties and therefore a breach of the duty of loyalty towards the European Union.
106 Fourthly, contrary to other cases concerning entitlement to allowances, in the contested decision, the AA does not accuse the applicant of deliberately misleading the administration in order to obtain the allowances in respect of C. Consequently, the recovery of those allowances is contrary to Article 85 of the Staff Regulations.
107 The Commission disputes the applicant’s arguments.
108 By his fifth plea, the applicant claims to have proved that he had actually maintained C within the meaning of Article 2(2) of Annex VII to the Staff Regulations.
109 The right to dependent child allowance is subject to the condition that the child is actually maintained by the official concerned (order of 17 June 2019, BS v Parliament, T‑593/18, not published, EU:T:2019:425, paragraph 33).
110 According to the case-law, that condition is justified by the fact that the dependent child allowance, although forming part of remuneration, is not intended for the official’s upkeep, but exclusively for that of his or her children (judgments of 14 June 1988, Christianos v Court of Justice, 33/87, EU:C:1988:300, paragraph 15, and of 3 March 1993, Peroulakis v Commission, T‑69/91, EU:T:1993:16, paragraph 34).
111 Accordingly, dependent child allowance has no purpose if, where it is paid to the official, it is not used to exclusively and actually ensure maintenance of the child (order of 17 June 2019, BS v Parliament, T‑593/18, not published, EU:T:2019:425, paragraph 35).
112 Concerning proof of C’s actual maintenance, it must be borne in mind that it follows from point 6 of Conclusion 274/15 approved by the Heads of Administration at their 275th meeting on 24 February 2016 on the concept of ‘actual maintenance of a dependent child’ that actual maintenance is assessed on the basis of factual information to be provided by the official or staff member concerned, confirming that he or she is responsible for part of the child’s basic needs. When the administration carries out checks, it may also ask the official or staff member to provide proof of actual maintenance in cases where there had been a presumption of actual maintenance.
113 Moreover, in accordance with the case-law, it is for the official to prove that the conditions to be satisfied in order to obtain payment of an allowance are met, in particular the condition relating to the actual maintenance of the child (see judgment of 17 November 2021, KR v Commission, T‑408/20, not published, EU:T:2021:788 paragraph 31 and the case-law cited).
114 In the present case, it follows from the contested decision that the applicant has provided proof concerning C’s actual maintenance by sending his bank account statements to the AA which showed that, since 11 April 2019, he had made payments to C’s account, and C’s bank account statements confirming receipt of those payments. However, after the AA requested the applicant to fully disclose his bank account statements for the period from 1 March 2019 to 31 January 2021, the applicant refused to send the requested statements, taking the view that such a request is disproportionate and abusive
115 In that respect, first, it must be recalled that, where he or she has not, on his or her own initiative, provided sufficient factual information such as to establish actual maintenance of the child, the official may be required, as follows from paragraphs 112 and 113 above, to provide further information confirming that he or she is responsible for part of the child’s basic needs.
116 That factual information seeks to establish that the dependent child allowance is intended for the exclusive maintenance of the child and, where necessary, may consist in the complete disclosure of the financial situation of the child in question in order to assess whether the sums transferred were actually used for the essential needs of that child, within the meaning of the case-law cited in paragraph 110 above, where, in accordance with the principle of proportionality, the AA had no other means of assessing whether that was the case.
117 It is important to recall that the principle of proportionality requires that measures adopted by European Union institutions not exceed the limits of what is appropriate and necessary in order to attain the aims pursued, it being understood that, when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgments of 17 October 2013, Schaible, C‑101/12, EU:C:2013:661, paragraph 29 and the case-law cited, and of 13 December 2018, Haeberlen v ENISA, T‑632/16, not published, EU:T:2018:957, paragraph 145).
118 In the circumstances of the present case, it must be held that the AA’s further assessment was justified, given that, even though the Kingdom of Belgium was shown on C’s passport and ID card as being her place of residence, it was apparent from the information in the file that she lived in the Netherlands, where she was pursuing her university studies. Moreover, as the Commission notes, C has been in statutory cohabitation with her partner, in accordance with Belgian law, since 9 September 2019, with the result that, according to Conclusion 274/15, maintenance had to be demonstrated.
119 Secondly, even though the applicant has sent, in annex to the application, C’s bank account statements for the period from April 2019 to December 2020, and statements from his account, seeking to prove maintenance between September 2020 and August 2021, it must be stated that he had been requested to provide the bank account statements during the administrative procedure, which he explicitly refused to do. According to point 6 of Conclusion 274/15, first, the administration had to base itself on factual information available to it in order to assess the actual maintenance and to take a decision on the allowance at issue and, secondly, it could request further information from the applicant, who was required to demonstrate actual maintenance of the person concerned.
120 In any event, the Court finds that, in the light of the doubts raised by the Commission in the contested decision, C’s bank account extracts do not constitute sufficient proof to establish C’s actual maintenance by the applicant.
121 Thirdly, the applicant’s argument disputing the doubts expressed in the contested decision as regards his loyalty to the institution under Article 11 of the Staff Regulations is not capable of calling into question the legality of the contested decision.
122 In that regard, it should be noted that the official must comply with the duty of loyalty set out in that provision not only when performing the functions conferred on him or her, but also in his or her contacts with the EU administration and, in particular, when he or she requests the grant of an allowance. In that connection, it is settled case-law that the objective pursued by Article 85 of the Staff Regulations is to protect the financial interests of the European Union in the specific context of relations between the Union institutions and their staff, that is to say, persons who are bound to those institutions by the specific duty of loyalty, as set out in Article 11 of the Staff Regulations (see judgment of 11 November 2020, AV and AW v Parliament, T‑173/19, not published, EU:T:2020:535, paragraph 107 and the case-law cited).
123 Fourthly, as regards the alleged lack of intention to mislead the administration for the purpose of obtaining a dependent child allowance, under Article 85 of the Staff Regulations, the assessment of that condition is required where the time limit of five years from the date of payment of the overpayment has expired.
124 In the present case, recovery of the allowance at issue was ordered within five years, with the result that it is sufficient, under the first paragraph of Article 85 of the Staff Regulations, that the official was aware that there was no due reason for the payment or if the fact of the overpayment was patently such that he could not have been unaware of it.
125 According to the case-law, as regards Article 85 of the Staff Regulations, for a sum paid without justification to be recovered, evidence must be produced to show that the recipient was actually aware that there was no due reason for the payment or that the fact of the overpayment was patently such that he or she could not have been unaware of it. Where overpayment is disputed by the recipient and in the absence of evidence that he or she was aware that there was no due reason for the payment, the circumstances in which the payment was made must be examined in order to determine whether the overpayment was patently evident. Specifically, the words ‘patently such’, used of the irregularity of the payment, in Article 85 of the Staff Regulations do not mean that an official in receipt of an undue payment does not need to make any effort to reflect or check, but mean that repayment is required where the error is one which would not escape the notice of an official exercising ordinary care, who is deemed to know the rules governing his or her salary (see judgments of 5 November 2002, Ronsse v Commission, T‑205/01, EU:T:2002:269, paragraphs 45 and 46, and of 27 January 2016, DF v Commission, T‑782/14 P, EU:T:2016:29, paragraphs 25 and 26 and the case-law cited).
126 In that regard, it must be borne in mind that the diligence required of members of the EU’s staff on the basis of Article 85 of the Staff Regulations stems from the fact that the situation of the administration, which is responsible for the payment of thousands of salaries and allowances of all kinds, cannot be compared to that of a staff member, who has a personal interest in checking the payments made to him or her every month and that, therefore, it is not a question of whether or not the error was patent to the administration, but of whether it was patent to the applicant (see judgment of 23 March 2022, ON v Commission, T‑730/20, not published, EU:T:2022:155, paragraph 21 and the case-law cited).
127 It follows from the case-law cited in paragraph 125 above that, where overpayment is disputed by the recipient and in the absence of evidence that he or she was aware that there was no due reason for the payment, the circumstances in which the payment was made must be examined in order to determine whether the overpayment was patently evident to an official exercising ordinary care, who is deemed to know the rules governing his or her salary.
128 In the light of the circumstances referred to in paragraphs 118 to 121 above, it must be held that the applicant could not have been unaware of the irregularity of the payment of that dependent child allowance during the period concerned.
129 Consequently, the fifth plea must be rejected as unfounded.
130 In the light of all the foregoing, the action must be dismissed.
Costs
131 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders AL to pay the costs.
da Silva Passos | Półtorak | Pynnä |
Delivered in open court in Luxembourg on 10 April 2024.
V. Di Bucci | | M. van der Woude |