Language of document : ECLI:EU:F:2016:169

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)

21 July 2016

Case F‑136/15

HD

v

European Parliament

(Civil service — Officials — Remuneration — Family allowances — Education allowance — Conditions for granting — Article 67(2) of the Staff Regulations — Deduction of an allowance of like nature received from another source — Article 85 of the Staff Regulations — Recovery of undue payments)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which HD seeks annulment of the decisions of the European Parliament of 11 November 2014, regularising her situation with regard to payment of the education allowance, and 8 December 2014, recovering the amounts alleged to have been unduly received by her in that respect, together with, in so far as necessary, annulment of the decision of 30 June 2015 rejecting her complaints.

Held:      The action is dismissed. The parties are each to bear their own costs.

Summary

1.      Actions brought by officials — Prior administrative complaint — Correspondence between the complaint and the application — Grounds not set out in the complaint — Inadmissibility

(Staff Regulations, Art. 91(2))

2.      Officials — Recovery of undue payments — Conditions — Patent overpayment — Criteria

(Staff Regulations, Art. 85)

1.      The rule of correspondence between a complaint under Article 91(2) of the Staff Regulations and the subsequent action requires that, for a plea before the EU judicature to be admissible, it must have already been raised in the pre-litigation procedure, enabling the authority empowered to conclude contracts of employment to know the criticisms made by the person concerned of the contested decision.

(see para. 39)

See:

Judgment of 7 July 2004 in Schmitt v EAR, T‑175/03, EU:T:2004:214, para. 42

Judgment of 25 October 2013 in Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, para. 71

2.      It is clear from Article 85 of the Staff Regulations that, 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 could not have been unaware of it.

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 salary.

Article 85 of the Staff Regulations must be interpreted as meaning that it is not a question of whether or not the error was patent to the administration, but of whether it was patent to the person concerned. The situation of the administration, which is responsible for the payment of thousands of salaries and allowances of all kinds to its officials and other staff, cannot be compared to that of the official, who has a personal interest in checking the payments made to him every month. Accordingly, the fact that the administration did not cease to pay the education allowance does not affect the conclusion that the official concerned knew or could have known of that failure, and the official cannot, on the basis of good faith, escape the obligation to repay an allowance paid without justification.

(see paras 50, 56-58)

See:

Judgments of 10 February 1994 in White v Commission, T‑107/92, EU:T:1994:17, paras 32, 33, 38 and 50; 27 February 1996 in Galtieri v Parliament, T‑235/94, EU:T:1996:22, para. 49; of 17 January 2001 in Kraus v Commission, T‑14/99, EU:T:2001:10, paras 36-38, and 5 November 2002 in Ronsse v Commission, T‑205/01, EU:T:2002:269, paras 45 and 46

Judgment of 27 January 2016 in DF v Commission, T‑782/14 P, EU:T:2016:29, paras 25 and 26

Judgment of 9 September 2008 in Ritto v Commission, F‑18/08, EU:F:2008:110, para. 40