JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)
12 March 2014 (*)
(Civil service — Remuneration — Family allowances — Dependent child allowance — Recovery of overpayments — Intention to mislead the administration — Proof — Inapplicability as against the administration of the five-year limitation period for making a request for recovery — Plea of illegality — Pre-litigation procedure — Rule requiring correspondence between the complaint and the action — Plea of illegality raised for the first time in the action — Admissibility)
In Case F‑128/12,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
CR, an official of the European Parliament, residing in M. (France), represented by A. Salerno and B. Cortese, lawyers,
applicant,
v
European Parliament, represented by V. Montebello-Demogeot and E. Taneva, acting as Agents,
defendant,
supported by
Council of the European Union, represented by M. Bauer and A. Bisch, acting as Agents,
intervener,
THE CIVIL SERVICE TRIBUNAL (Third Chamber)
composed of S. Van Raepenbusch, President, R. Barents and K. Bradley (Rapporteur), Judges,
Registrar: J. Tomac, Administrator,
having regard to the written procedure and further to the hearing on 12 December 2013,
gives the following
Judgment
1 By application lodged at the Registry of the Tribunal on 29 October 2012, CR brought the present action for annulment of the decision of the European Parliament to recover, outside the five-year limitation period, sums unduly received by way of dependent child allowance.
Legal context
2 Article 67 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides:
‘1. The family allowances shall comprise:
…
(b) dependent child allowance;
…
2. Officials in receipt of family allowances specified in this Article shall declare allowances of like nature paid from other sources; such latter allowances shall be deducted from those paid under Articles 1, 2 and 3 of Annex VII [to the Staff Regulations].
…’
3 Under 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.’
The request for recovery must be made no later than five years from the date on which the sum was paid. Where the [a]ppointing [a]uthority is able to establish that the recipient deliberately misled the administration with a view to obtaining the sum concerned, the request for recovery shall not be invalidated even if this period has elapsed.’
Facts giving rise to the dispute
4 The applicant, an official in grade AD 12, entered the service of the Parliament on 1 July 1983 and has held various administrative posts since that date. In particular, from 1 January 2004 until May 2008 he was assigned to the legal service, where, between 1 February 2005 and 30 April 2008, he was part of a unit working on rights under the Staff Regulations.
5 The applicant is the father of four children and since October 1991 he has received the dependent child allowance provided for in Article 67(1)(b) of the Staff Regulations.
6 By note of 13 October 2011, the Head of the ‘Individual Rights and Remuneration’ Unit within the ‘Management of administrative matters’ Directorate of the Parliament’s Directorate-General for Personnel informed the applicant that according to the information at the Parliament’s disposal the applicant was entitled to receive dependent child allowances paid by the French authorities and asked him to submit a document from the Caisse d’allocations familiales (family allowances office; ‘the CAF’) of his place of residence relating to his situation, namely either a certificate of payment or a refusal of payment. It was then stated that, if that document were not provided by 31 October 2011, first, the dependent child allowance hitherto paid would be reduced by the amount which the applicant was entitled to receive from the CAF and, second, the administration would undertake a detailed review of his file and, if necessary, recover any sum overpaid.
7 On receiving the note of 13 October 2011, the applicant contacted the CAF to request the document required by the Parliament and informed the administration of the Parliament that he thought that he would not be able to obtain it before the stated deadline.
8 By letter of 11 November 2011, the Head of the ‘Individual Rights and Remuneration’ Unit informed the applicant that since he had not provided the necessary document before the deadline, the dependent child allowance paid by the Parliament would be automatically reduced, from December 2011, by the amount representing the sum which the applicant was entitled to receive from the CAF. The note further stated that that reduction would be applied retroactively from the date of birth of the applicant’s second child, in January 1996, which had triggered the applicant’s entitlement to the allowance paid by the CAF.
9 By note of 9 December 2011, the Director of the ‘Management of administrative matters’ Directorate (‘the Director’) informed the applicant that examination of his file had revealed that he had been in receipt of family allowances paid by the CAF ‘since September 1999, following the birth of [his] second child’. The Director stated that the applicant had ‘deliberately misled the administration in order to receive payment of the family allowances without deduction of the amounts of like nature paid from other sources’, since he had omitted to inform the administration of the national allowances which he received and to bring up to date his data in the annual information slip for the last two years. Then, taking the view that the conditions of the second sentence of the second paragraph of Article 85 of the Staff Regulations were satisfied, the Director informed the applicant that in his capacity as appointing authority he had decided to recover the sums unduly paid not only during the last five years but from September 1999, by withholding sums from the applicant’s salary from January 2012 until January 2014 (‘the decision at issue’).
10 By letter of 5 January 2012, the CAF replied to the applicant’s request for information and issued a statement for the period 1 April 1998 to 31 December 2011 of the payments which he had received from the CAF, which included a payment called ‘family allowance’ paid from September 1999. In addition, the CAF informed the applicant that it was not possible to draw up a certificate with effect from January 1996.
11 On 7 March 2012, the applicant lodged a complaint on the basis of Article 90(2) of the Staff Regulations against the decision at issue solely in so far as it applied the recovery of the sums overpaid beyond the five-year period. The applicant did not dispute the recovery of the sums overpaid during the last five years.
12 By decision of 2 July 2012, the Secretary-General of the Parliament, acting as appointing authority, rejected the complaint and informed the applicant that the competent service had re-calculated the amount to be recovered on the basis of the information communicated by the CAF’s letter of 5 January 2012.
Procedure and forms of order sought
13 By a pleading received at the Registry of the Tribunal on 1 March 2013, the Council of the European Union requested leave to intervene in support of the form of order sought by the Parliament. By order of 8 May 2013, the President of the Third Chamber of the Tribunal granted that request and also the requests for confidentiality submitted by the applicant and the Parliament, respectively, concerning the annexes to the application and the defence.
14 The applicant claims that the Tribunal should:
– annul the decision at issue in so far as it decided, pursuant to the second sentence of the second paragraph of Article 85 of the Staff Regulations, to recover all the amounts overpaid from September 1999 and not just those overpaid during the last five years;
– in so far as necessary, annul the decision of 2 July 2012 rejecting the complaint;
– order the defendant to pay all the costs.
15 The Parliament contends that the Tribunal should:
– dismiss the action;
– order the applicant to pay the costs.
16 The Council claims that the Tribunal should:
– declare the plea of illegality raised against the second sentence of the second paragraph of Article 85 of the Staff Regulations unfounded;
– dismiss the application as unfounded.
Law
The claim for annulment of the decision rejecting the complaint
17 According to settled case-law, claims for annulment formally directed against the decision rejecting a complaint have the effect, where that decision lacks any independent content, of bringing before the Tribunal the act against which the complaint was submitted (see, to that effect, the judgment of 17 January 1989 in Case 293/87 Vainker v Parliament, paragraph 8).
18 In the present case, it is apparent from the documents in the file that the decision of 2 July rejecting the applicant’s complaint confirms the decision at issue, by stating the grounds on which it was based. In such a situation, it is indeed the legality of the initial act adversely affecting the applicant that must be examined, taking into consideration the reasons set out in the decision rejecting the complaint, as that reasoning is deemed to coincide with that act (judgment of 18 April 2012 in Case F‑50/11 Buxton v Parliament, paragraph 21 and the case-law cited). Consequently, the claim for annulment of the decision rejecting the complaint lacks any independent content and must therefore be regarded as being formally directed against the decision at issue, as clarified by the decision rejecting the complaint (see, to that effect, judgment of 10 June 2004 in Case T‑258/01 Eveillard v Commission, paragraph 32).
The claim for annulment of the decision at issue
19 The application must be interpreted as raising, in support of the claim for annulment of the decision at issue, in essence, two pleas in law, alleging, first, infringement of the second sentence of the second paragraph of Article 85 of the Staff Regulations and second, raised as a preliminary issue, the illegality of the second sentence of the second paragraph of Article 85 of the Staff Regulations.
20 The Tribunal will examine first of all the plea, raised as a preliminary issue, alleging the illegality of the second sentence of the second paragraph of Article 85 of the Staff Regulations, since if that plea of illegality should be upheld it would no longer be necessary to examine the first plea.
The plea, raised as a preliminary issue, alleging the illegality of the second sentence of the second paragraph of Article 85 of the Staff Regulations
21 The applicant maintains that the decision at issue must be annulled since it is based on the second sentence of the second paragraph of Article 85 of the Staff Regulations, a provision which is itself illegal. In the applicant’s submission, that provision breaches the principle of legal certainty and the principle of proportionality in that it does not provide for a limitation period for the action taken by the administration where an official has deliberately misled it.
– Admissibility of the plea of illegality
22 As a preliminary point, it should be observed that the plea alleging the illegality of the second sentence of the second paragraph of Article 85 of the Staff Regulations was not raised in any way whatsoever in the context of the pre-litigation procedure.
23 Admittedly, the defendant and the intervener have not claimed that the plea is inadmissible. On the contrary, when questioned by the Tribunal at the hearing about the admissibility of the plea of illegality in the light of the rule requiring correspondence between the administrative complaint and the subsequent legal action, they both agreed that a distinction must be drawn between pleas of illegality, for which the correspondence rule should not be applied, and other pleas, for which the correspondence rule, as referred to by the General Court of the European Union in its judgment of 25 October 2013 in Case T‑476/11 P Commission v Moschonaki, paragraphs 70 to 80 and 82, should be applied and, accordingly, they did not ask the Tribunal to declare the plea of illegality inadmissible.
24 However, correspondence between the administrative complaint and the legal action, on which the admissibility of that action depends, constitutes an issue of public policy which may be raised by the court of its own motion (judgment of 17 July 2012 in Case F‑54/11 BG v European Ombudsman, paragraph 57 and the case-law cited, under appeal before the General Court of the European Union in Case T‑406/12 P).
25 In that regard, it should be borne in mind that Article 91(2) of the Staff Regulations provides that an action before the Courts of the European Union is admissible only if the appointing authority has previously had a complaint submitted to it.
26 According to the case-law, Article 91(2) of the Staff Regulations establishes a rule of correspondence between the complaint, within the meaning of that provision, and the ensuing application. Under that rule, a plea raised before the Courts of the European Union must, if it is not to be declared inadmissible, have already been raised in the context of the pre-litigation procedure, in order that the appointing authority be in a position to know the criticisms which the official concerned makes against the contested decision. The correspondence rule is justified by the very purpose of the pre-litigation procedure, which is designed to enable an amicable settlement of the differences that have arisen between the officials and the administration (Commission v Moschonaki, paragraphs 71 and 72 and the case-law cited).
27 Furthermore, the case-law stipulates that the implementation of the rule of correspondence between the application and the complaint, and its review by the Courts of the European Union, must ensure compliance with both the principle of effective judicial protection, which is a general principle of EU law, expressed in Article 47 of the Charter of Fundamental Rights of the European Union, so that the person concerned may be in a position properly to challenge a decision of the appointing authority that adversely affects him and the principle of legal certainty, so that the appointing authority may be aware, at the complaint stage, the criticisms levelled by the person concerned against the contested decision (Commission v Moschonaki, paragraph 82).
28 Last, the case-law has applied the correspondence rule to an action in which a plea of illegality was raised, asserting that in order to be admissible such a plea should have been raised in the complaint (judgment of 11 December 2008 in Case F‑136/06 Reali v Commission, paragraphs 44 to 51, upheld by judgment of 27 October 2010 in Case T‑65/09 P Reali v Commission, paragraphs 46 to 49).
29 The Tribunal none the less considers that, since the judgment of 27 October 2010 in Reali v Commission, the case-law relating to the principle of effective judicial protection in the light of Article 47 of the Charter (see, for example, judgments of 6 November 2012 in Case C‑199/11 Otis and Others, paragraphs 54 and 63; 26 November 2013 in Case C‑40/12 P Gascogne Sack Deutschland (formerly Sachsa Verpackung) v Commission, paragraphs 75 and 76; and 15 September 2011 in Case T‑234/07 Koninklijke Grolsch v Commission, paragraphs 39 and 40) has evolved in such a way that the appropriateness of applying the correspondence rule where a plea of illegality has been raised for the first time in the legal action must be reconsidered.
30 In particular, in Koninklijke Grolsch v Commission, the General Court of the European Union, after observing that no provision of EU law requires that during the administrative procedure the addressee of a statement of objections for infringement of the competition rules must contest the individual matters of fact or of law set out in the statement of objections, failing which it will no longer be able to do so during the judicial proceedings, rejected the European Commission’s argument that a plea was inadmissible because it had not been raised clearly and precisely during the administrative phase (paragraphs 37 and 39). The General Court held that, in the circumstances described, such an argument effectively limited the applicant’s access to justice and, more particularly, its right for its case to be heard before a court or tribunal. As the General Court observed, the right to an effective remedy and the right of access to an impartial tribunal are guaranteed by Article 47 of the Charter (paragraph 40).
31 While it is true that the case-law referred to at paragraphs 27 and 28 above was developed in areas other than that of the civil service, Koninklijke Grolsch v Commission concerns the compatibility with Article 47 of the Charter of a restriction of access to justice that was not expressly provided for by the legislature. That situation is therefore in certain respects analogous to the application of the correspondence rule in the case of a plea of illegality, a rule which, although having its basis in Article 91(1) of the Staff Regulations, originated in case-law.
32 The Tribunal is of the view that considerations relating to, respectively, the purpose of the pre-litigation procedure, the nature of the plea of illegality and the principle of effective judicial protection preclude a plea of illegality raised for the first time in an action being declared inadmissible on the sole ground that it was not raised in the complaint that preceded the action.
33 In the first place, as regards the purpose of the pre-litigation procedure, it has consistently been held that that procedure is devoid of purpose where the complaints are directed against a decision which the appointing authority cannot review (judgments of 16 March 1978 in Case 7/77 Ritter von Wüllerstorff und Urbair v Commission, paragraph 7; of 14 July 1983 in Case 144/82 Detti v Court of Justice, paragraph 16; and of 23 January 2002 in Case T‑386/00 Gonçalves v Parliament, paragraph 34). The case-law has also established that there is no need to lodge a complaint against the decisions adopted by competition selection boards (judgment of 20 June 2012 in Case F‑66/11 Cristina v Commission, paragraph 34) or a staff report (judgment of 3 July 1980 in Joined Cases 6/79 and 97/79 Grassi v Council, paragraph 15).
34 Likewise, the obligation to raise a plea of illegality in the complaint, failing which it will be declared inadmissible does not satisfy the purpose of the pre-litigation procedure as described at paragraph 24 of the present judgment.
35 In the light of the principle that acts adopted by the institutions of the European Union are presumed lawful, according to which EU rules remain fully effective as long as they have not been found to be unlawful by a competent court (judgments of 13 February 1979 in Case 101/78 Granaria, paragraph 4; of 7 June 1988 in Case 63/87 Commission v Greece, paragraph 10; of 5 October 2004 in Case C‑475/01 Commission v Greece, paragraph 18; of 30 September 1998 in Case T‑13/97 Losch v Court of Justice, paragraph 112; of 12 July 2001 in Case T‑120/99 Kik v OHIM (Kik), paragraph 55; and of 17 September 2008 in Case T‑218/06 Neurim Pharmaceuticals (1991) v OHIM — Eurim-Pharm Arzneimittel (Neurim PHARMACEUTICALS), paragraph 52), the appointing authority cannot chose to disapply a general measure in force which in its view would infringe a higher-ranking rule of law with the sole aim of permitting a non-judicial resolution of the dispute (see, to that effect, judgment of 7 June 2011 in Case F‑64/10 Mantzouratos v Parliament, paragraph 22).
36 Such a choice must a fortiori be excluded where the appointing authority concerned acts in a situation of circumscribed powers, as is the case where the conditions for the application of Article 85 of the Staff Regulations are satisfied and the administration is required to recover the sums overpaid to one of its staff. In the exercise of powers where it has no discretion, the appointing authority is unable to withdraw or amend the decision challenged by the staff member, even where it considers that a plea of illegality directed against the provision on the basis of which the contested decision was adopted is well founded.
37 Furthermore, the fact that a plea of illegality is raised for the first time in the action cannot affect the principle of legal certainty, since even if the appointing authority had been aware of a plea of illegality at the complaint stage, it would not have been able to take advantage of that fact in order to resolve the dispute with its staff member by means of an amicable settlement.
38 In the second place, as regards the nature of the plea of illegality, it has been consistently held that Article 277 TFEU gives expression to the general principle conferring upon any party to proceedings the right to challenge indirectly, for the purpose of obtaining the annulment of a measure against which it can bring proceedings, the validity of a previous act of an EU institution which constitutes the legal basis of the contested measure, if that party was not entitled to bring a direct action challenging the act which thus affected him without his having been in a position to seek its annulment (judgments of 6 March 1979 in Case 92/78 Simmenthal v Commission, paragraph 39, and of 19 January 1984 in Case 262/80 Andersen and Others v Parliament, paragraph 6). Article 277 TFEU is thus intended to protect litigants against the application of an illegal measure, it being understood that the effects of a judgment finding that the measure is inapplicable are limited solely to the parties to the dispute and that the judgment does not call into question the measure itself, which is no longer amenable to challenge (judgment of 25 October 2006 in Case T‑173/04 Carius v Commission, paragraph 45 and the case-law cited).
39 Even on the assumption that the obligation to raise a plea of illegality in the complaint, failing which it will be declared inadmissible, can fulfil the purpose of the pre-litigation procedure, the Tribunal considers that the very nature of a plea of illegality is to reconcile the principle of legality and the principle of legal certainty.
40 It follows therefore from the wording of Article 277 TFEU that the possibility of challenging a measure of general application after the expiry of the period for bringing an action is open to a party only in proceedings before the Courts of the European Union. Such a plea cannot therefore be fully effective in an administrative appeal procedure.
41 In the third, and last place, the Tribunal recalls that the principle of effective judicial protection is a general principle of EU law to which expression is now given in the second paragraph of Article 47 of the Charter, which provides that ‘[e]veryone is entitled to a … hearing by an independent and impartial tribunal … established by law …’. That paragraph corresponds to Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’) (judgment of 28 February 2013 in Case C‑334/12 RX-II Review Arango Jaramillo and Others v EIB, paragraphs 40 and 42).
42 It is apparent from the case-law of the European Court of Human Rights on the interpretation of Article 6(1) of the ECHR, to which reference must be made in accordance with Article 52(3) of the Charter, that the right to a tribunal is not absolute. The exercise of that right is subject to limitations, in particular as to the conditions for the admissibility of an action. While the persons concerned should expect that the rules laying down conditions for admissibility will be applied, the application of such rules should nevertheless not prevent litigants from availing themselves of an available legal remedy (see, to that effect judgment of the European Court of Human Rights in Anastasakis v. Greece, no 41959/08, § 24, 6 December 2011; Review Arango Jaramillo and Others v EIB, paragraph 43; and order of 16 November 2010 in Case C‑73/10 P Internationale Fruchtimport Gesellschaft Weichert v Commission, paragraph 53).
43 In particular, the European Court of Human Rights has stated that the limitations on the right to a tribunal relating to the conditions of admissibility of an action must not restrict a litigant’s access in such a way or to such an extent that the very essence of his right to a tribunal is impaired. Such limitations can be reconciled with Article 6(1) of the ECHR only if they pursue a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim pursued (see Eur. Court HR, Liakopoulou v. Greece, no. 20627/04, § 17, 24 May 2006; Kemp and Others v. Luxembourg, no. 17140/05, § 47, 24 April 2008; and Viard v. France, no. 71658/10, § 29, 19 January 2014). In fact, the right of access to a tribunal is impaired when its rules cease to pursue the aims of legal certainty and the proper administration of justice and become a sort of barrier preventing a litigant from having his dispute settled on the merits by the competent court (see view of Advocate General Mengozzi in Review Arango Jaramillo and Others v EIB, points 58 to 60; Eur. Court HR, L’Erablière v. Belgium, no. 49230/07, § 35, 24 February 2009).
44 The sanction of inadmissibility of a plea of illegality raised for the first time in the application constitutes a limitation of the right to effective judicial protection that is not proportionate to the aim pursued by the correspondence rule, namely to permit an amicable settlement of the disputes between the official concerned and the administration (see, to that effect, Eur. Court HR, Liakopoulou v. Greece, § 20).
45 In that regard, the Tribunal observes that, according to the case-law, any normally diligent official is deemed to be familiar with the Staff Regulations (judgment of 19 May 1999 in Joined Cases T‑34/96 and T‑163/96 Connolly v Commission, paragraph 168 and the case-law cited) and, more particularly, the rules governing his remuneration (see judgment of 21 November 2013 in Joined Cases F‑72/12 and F‑10/13 Roulet v Commission, paragraph 48 and the case-law cited). On the other hand, a plea of illegality may lead the Tribunal to assess the legality of rules which officials are deemed to know in the light of general principles or higher rules of law which may go beyond the framework of the rules of the Staff Regulations. Owing to the nature of a plea of illegality and to the reasoning which leads the person concerned to search for and invoke such illegality, the official or member of staff who submits a complaint and does not necessarily have the appropriate legal expertise cannot be required to raise such a plea at the pre-litigation stage, failing which a plea of that kind raised at a later stage will be declared inadmissible. Accordingly, a declaration of inadmissibility in those circumstances is a disproportionate penalty for the member of staff concerned and is unjustified
46 In the light of all of the foregoing, the plea of illegality raised by the applicant must be declared admissible.
– First part of the plea of illegality, alleging breach of the principle of legal certainty
47 The applicant maintains, in essence, that the lack of a limitation period for the action of the administration in the context of the second sentence of the second paragraph of Article 85 of the Staff Regulations enables the appointing authority to delay indefinitely the exercise of its powers in relation to repayment of amounts wrongly paid. That provision is thus contrary to the principle of legal certainty and its application should be excluded in the present case in favour of the five-year limitation period.
48 The Tribunal observes, in the first place, that the limitation period, by preventing situations which arose a long time previously from being indefinitely brought into question, tends to strengthen legal certainty but can also allow the acceptance of situations which at least in the beginning were unlawful. The extent to which provision is made for it is thus the result of a choice between the requirements of legal certainty and those of legality, on the basis of the historical and social circumstances prevailing in a society at a given time. It is accordingly a matter for the legislature alone to decide. It is not therefore open to the Courts of the European Union to criticise the EU legislature for the choices it makes concerning the introduction of rules on limitation and the setting of the corresponding time-limits (judgment of 6 October 2005 in Joined Cases T‑22/02 and T‑23/02 Sumitomo Chemical and Sumika Fine Chemicals v Commission, paragraphs 82 and 83).
49 The fact that the legislature chose to preclude the possibility of relying as against the administration on the five-year limitation period for operating a recovery procedure where the administration is able to prove that the member of staff concerned deliberately misled it is not therefore in itself unlawful from the point of view of compliance with the principle of legal certainty (see, to that effect, Sumitomo Chemical and Sumika Fine Chemicals v Commission, paragraph 83).
50 Furthermore, the applicant’s argument that, in the absence of a limitation period, the administration could delay its action indefinitely is wholly unfounded in law. It has consistently been held that, where the EU legislature has not laid down any limitation period, the fundamental requirement of legal certainty precludes the administration from indefinitely delaying the exercise of its powers (see, as regards the restitution of State aid, judgment of 22 April 2008 in Case C‑408/04 P Commission v Salzgitter, paragraph 100). In such a situation, the administration concerned is required to act within a reasonable time after it became aware of the facts (see, as regards the restitution of an unjustified household allowance, judgment of 5 November 2002 in Case T‑205/01 Ronsse v Commission, paragraph 52; see also, concerning the initiation of disciplinary proceedings, judgment of 10 June 2004 in Case T‑307/01 François v Commission, paragraphs 48 and 49; and judgment of 8 March 2012 in Case F‑12/10 Kerstens v Commission, paragraphs 124 and 125).
51 It follows that the first part of the plea of illegality must be rejected as unfounded, without there being any need for the Tribunal to address the question whether, in the present case, the administration acted within a reasonable time, since the applicant did not take issue with the administration on that point.
– Second part of the plea of illegality, alleging breach of the principle of proportionality
52 The applicant maintains that the fact that he is precluded from relying on the five-year limitation period provided for in the second sentence of the second paragraph of Article 85 of the Staff Regulations constitutes a breach of the principle of proportionality.
53 In particular, the applicant submits that the case-law on competition law matters has accepted limitation periods of between three and five years. On the other hand, the Court of Justice has decided that the principle of proportionality precludes the application of a 30-year limitation period in proceedings for recovery of overpaid export refunds in the context of the protection of the financial interests of the Union.
54 Furthermore, the applicant observes that Article 73a of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1), in the version as amended by Council Regulation (EC, Euratom) No 1995/2006 of 13 December 2006 (OJ 2006 L 390, p. 1), provides for a limitation period of five years for ‘entitlements of the [Union] in respect of third parties and entitlements of third parties in respect of the [Union]’.
55 In the present case, recovery of the overpayment was implemented in respect of a period of more than 12 years, which, it is argued, exposed the applicant to a long period of legal uncertainty and to the danger that he would no longer be able to adduce evidence of the lawfulness of his conduct.
56 The Tribunal considers, first of all, that the applicant’s argument that, according to the case-law of the Court of Justice, a limitation period of 30 years is in itself incompatible with the principle of proportionality and that, consequently, the absence of any limitation period cannot but be unlawful, must be rejected.
57 The judgment of 5 May 2011 in Joined Cases C‑201/10 and C‑202/10 Ze Fu Fleischhandel and Vion Trading, on which the applicant relies in support of his argument, concerned the interpretation of Council Regulation (EC, Euratom) No 2988/95 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1), which deals with the controls, measures and administrative penalties applicable to irregularities committed by traders (judgment of 22 November 2006 in Case T‑282/04 Italy v Commission, paragraph 83) and is therefore irrelevant to relations between the EU institutions and their staff.
58 In any event, Ze Fu Fleischhandel and Vion Trading does not assist the applicant’s argument. At paragraphs 41 and 43 of that judgment, the Court of Justice held that ‘it is possible that a 30-year limitation rule arising from a provision of civil law may appear necessary and proportionate … in light of the objective pursued by that rule and defined by the national legislature’, but that, in that instance, that period went further than was necessary ‘in light of the objective of protecting the European Union’s financial interests, an objective for which the EU legislature considered that a limitation period of four, or indeed even three, years was already in itself sufficient’.
59 The provision in the second sentence of the second paragraph of Article 85 of the Staff Regulations precluding reliance as against the administration on the five-year limitation period for recovery of overpayments is therefore not in itself contrary to the principle of proportionality. However, it is necessary to consider whether, in the light of the objective pursued by Article 85 of the Staff Regulations, the legislature breached the principle of proportionality in the present case.
60 The Tribunal observes at the outset that, according to the case-law, by virtue of the principle of proportionality, the legality of EU rules is subject to the condition that the means employed must be appropriate to attainment of the legitimate objective pursued by those rules and must not go further than is necessary to attain it, and, where there is a choice of appropriate measures, it is necessary, in principle, to choose the least onerous (judgment of 28 March 2012 in Case F‑36/10 Rapone v Commission, paragraph 50).
61 The objective pursued by Article 85 of the Staff Regulations is clearly 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 provided for in Article 11 of the Staff Regulations, which requires, in particular, that an official is to conduct himself ‘solely with the interests of the Union in mind’ and carry out the duties assigned to him ‘in keeping with his duty of loyalty to the Union’.
62 It must be stated that the second sentence of the second paragraph of Article 85 of the Staff Regulations requires the administration to recover overpayments in full in the specific situation where it is able to establish that the member of staff concerned deliberately misled it, in breach of the specific duty of loyalty referred to above.
63 In such a context, the Tribunal considers that the provision precluding reliance on the five-year limitation period does not go further than is necessary to attain the objective pursued.
64 Furthermore, the provision in the second sentence of the second paragraph of Article 85 of the Staff Regulations precluding reliance as against the administration on the five-year limitation period for taking action to recover overpayments in the situation is compatible with Article 73a of the Financial Regulation, which lays down a five-year limitation period ‘[w]ithout prejudice to the provisions of specific regulations’. The second sentence of the second paragraph of Article 85 of the Staff Regulations is precisely a ‘specific regulation’ applicable to the particular case in which a member of staff has deliberately misled his administration.
65 The second part of the plea of illegality must therefore be rejected as unfounded and, accordingly, the plea of illegality must be rejected in its entirety.
The plea alleging infringement of the second sentence of the second paragraph of Article 85 of the Staff Regulations
66 The applicant observes that the application of the second sentence of the second paragraph of Article 85 of the Staff Regulations is subject to proof by the administration that the member of staff concerned intended to mislead it and maintains that in this case the appointing authority applied that provision without having adduced such proof. In particular, in the applicant’s submission, the decision at issue is based on ‘mere assertions’ which, in the light of the ‘very restrictive’ interpretation that must be placed on the second sentence of the second paragraph of Article 85 of the Staff Regulations, are not sufficient to demonstrate his intention to mislead the administration.
67 The Tribunal observes at the outset that, according to the second paragraph of Article 85 of the Staff Regulations, the request for recovery of any sum overpaid must be made no later than five years from the date on which the sum was paid. However, where the appointing authority 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 has elapsed.
68 It is clear from the wording of the second sentence of the second paragraph of Article 85 of the Staff Regulations, therefore, that it is for the administration to prove that the member of staff concerned intended to mislead it, which, moreover, the parties do not dispute.
69 In the present case, the applicant seeks annulment of the decision at issue only in so far as it relates to the recovery of the overpaid sum for the period before the five-year period referred to above. In the first place, it must therefore be stated that the applicant does not deny that either he was aware that there was no due reason for the payment of the family allowance or the fact of the overpayment was patently such that he could not have been unaware of it.
70 In the second place, it should be pointed out that in the decision at issue the appointing authority observed that the applicant had failed to inform the administration of the allowances paid by the CAF, in spite of the fact that, owing to his various duties within the Parliament, he had been particularly well placed to be aware that he must do so. The appointing authority mentioned, too, that the applicant had also failed to respond to the request to update his data in the annual information slip in 2009 and 2010.
71 In the third place, in the decision rejecting the complaint, the appointing authority stated that the applicant had ‘on a number of occasions made false declarations when completing both the annual information slips for the years 1996 to 2005 and the information slips … submitted upon the birth of [his] children’ and, as regards the annual information slips, that during the period 1996 to 1998 he had always stated that neither he nor his wife had received family allowances in respect of their children ‘other than from the Communities’. Likewise, for the period 1999 to 2005, the applicant had confirmed by his signature that he had not received family allowances from other sources, as he had not ticked the box mentioning those allowances. In addition, contrary to the instructions on the annual information slips, the applicant had never attached certificates from the CAF to his declarations. Furthermore, the appointing authority states that, ‘on the birth of [his] second, third and fourth children, [the applicant] made false declarations by declaring each time on the information slip to be completed in order to obtain the dependent child allowance that [he] did not receive an allowance of like kind from other sources’. Last, the appointing authority observed that the applicant was not challenging the recovery of the sums overpaid over the last five years and also that, owing to his senior grade, his legal training and the fact that his work had related to civil service matters, the applicant was particularly well placed to be aware of the obligation under Article 67(2) of the Staff Regulations to declare allowances of like nature to the dependent child allowance.
72 It must therefore be held that the appointing authority based the decision at issue not on ‘mere assertions’, as the applicant claims, but on the fact that the applicant had made false declarations to the administration on a number of occasions and that those false declarations emanated from an official in a senior grade, with experience as a lawyer dealing with civil service matters who did not deny that either he was aware that there was no due reason for the payment or he ought to have been aware that that was so.
73 The Tribunal considers that the abovementioned factors are capable of proving to the requisite legal standard that the applicant intended to mislead the administration and that the conditions laid down for the application of the second sentence of the second paragraph of Article 85 of the Staff Regulations are therefore satisfied.
74 That conclusion cannot be affected by the applicant’s assertion that, following the birth of his second child, he contacted the Parliament’s administration by telephone and was told that there was no need to declare the allowances paid by the CAF. Not only has the applicant not provided the Tribunal with any evidence capable of proving such an assertion, but, in addition, he does not derive any inference or argument from it.
75 Consequently, the present plea must be rejected as wholly unfounded in law.
76 It follows from all of the foregoing that the action must be dismissed as unfounded.
Costs
77 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 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. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any.
78 It is apparent from the reasons set out in the present judgment that the applicant has been unsuccessful. Furthermore, in its pleadings the Parliament has expressly asked that the applicant be ordered to pay the costs. Since the circumstances of the present case do not warrant the application of Article 87(2) of the Rules of Procedure, the applicant must bear his own costs and be ordered to pay the costs incurred by the Parliament.
79 In accordance with Article 89(4) of the Rules of Procedure, the intervener must bear its own costs.
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Third Chamber)
hereby:
1. Dismisses the action;
2. Declares that CR is to bear his own costs and orders him to pay the costs incurred by the European Parliament;
3. Declares that the Council of the European Union, intervener, is to bear its own costs.
Van Raepenbusch | Barents | Bradley |
Delivered in open court in Luxembourg on 12 March 2014.
W. Hakenberg | | S. Van Raepenbusch |