JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(Third Chamber)

13 April 2011

Case F‑73/09

Viktor Sukup

v

European Commission

(Civil service — Remuneration and allowances — Dependent child allowance — Education allowance — Retroactive award)

Application: brought under Articles 236 EC and 152 EA, whereby Mr Sukup seeks, in substance, annulment of the Commission’s decision informing him that the dependent child allowance and education allowance could not be granted to him retroactively.

Held: The application is rejected. The applicant is ordered to pay all the costs.

Summary

1.      Officials — Actions — Acts adversely affecting an official — Act that may be objectively regarded as a final decision

(Staff Regulations Art. 90(1))

2.      Officials — Remuneration — Family allowances — Dependent child allowance and education allowance — Retroactive payment — Lawfulness

(Staff Regulations of Officials, Annex VII, Arts 2 and 3)

3.      Officials — Remuneration — Family allowances — Dependent child allowance and education allowance — Retroactive payment following the determination of an official’s rights for the period in issue by an earlier negative decision — Not included

(Staff Regulations of Officials, Annex VII, Arts 2 and 3)

4.      Officials — Acts of the administration — Retroactivity — Conditions

5.      Officials — Actions — Request within the meaning of Article 90(1) of the Staff Regulations — Claim for retroactive payment of allowances — Duty to act within a reasonable time

(Staff Regulations Art. 90(1))

1.      Although the unfavourable position which the administration adopts following an official’s request concerning the possibility of the retroactive payment of an allowance where he claims that allowance is destined to be implemented only subsequently, it may be regarded as establishing the principle of a refusal to pay the allowance retroactively. It thus appears to adversely affect that official without there being any further need to determine whether his request must be regarded as a request within the meaning of Article 90(1) of the Staff Regulations or as a mere request for information.

(see para. 42)

See:

1 February 1979, 17/78 Deshormes v Commission, paras 9 to 12

2.      Although the possibility of retroactive payment of the dependent child allowance and the education allowance is not expressly provided for in the Staff Regulations, it does not follow from any provision of the Staff Regulations that an official whose situation meets the conditions laid down in the Staff Regulations in order to benefit from the allowances in question cannot request payment thereof for past periods, or that the administration can reject that request on the sole ground that it is retroactive in nature. Such payment would merely draw the consequences from rights which arose at the time when the official’s situation met the requirements laid down in the Staff Regulations, which may have occurred before the date on which the official submitted his request for payment of the allowances in issue. Thus the possibility of retroactive is not in principle excluded by the Staff Regulations.

(see para. 59)

3.      The Staff Regulations do not expressly provide that an official is entitled to retroactive payment of the dependent child allowance or the education allowance when his rights for the period in question were determined by an earlier negative decision.

Thus, where the administration adopts a decision refusing to grant the dependent child allowance or the education allowance to an official, that decision determines his rights while it remains in force. The official cannot then obtain payment of allowances corresponding to past periods for which his rights are determined by that decision.

(see paras 64, 65)

4.      A decision which for practical reasons cannot be adopted on the actual date on which an official enters the service necessarily has retroactive scope so that his administrative situation is determined as from his entry into service.

Such retroactive scope — which does not adversely affect any right previously acquired by the official — does not appear to be unlawful where the decision is adopted and communicated to the official concerned within a sufficiently brief period of his entering the service to appear to be justified by those practical considerations.

(see paras 70, 71)

5.      An official who has not shown that he had faced an exceptional situation resulting from reasons beyond his control which prevented him from submitting within a reasonable time a request within the meaning of Article 90(1) of the Staff Regulations, seeking to rely on or, at least, to preserve his rights with respect to allowances, cannot be regarded as having submitted his request within a reasonable time if the period that elapsed between the time when he was in a position to inform the administration of the difficulties which he encountered and the time when he apprised it of his situation exceeds the time necessary to prepare that request and submit it to the administration.

Since that request was not submitted within a reasonable time, the administration cannot in any event be criticised for having refused to make retroactive payment of the allowances in question, not only from the official’s entry into the service but also from the time when the existence of the abovementioned difficulties was established.

(see paras 83-85)

See:

29 April 2002, T‑70/98 Hilden v Commission, para. 42