JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

26 June 2013

Case F‑21/12

Mohammed Achab

v

European Economic and Social Committee (EESC)

(Civil service — Officials — Remuneration — Expatriation allowance — Condition laid down in Article 4(1)(a) and (b) of Annex VII to the Staff Regulations — Recovery of sums unduly paid)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Achab seeks annulment of the decision of the European Economic and Social Committee (EESC) of 9 June 2011 withdrawing the award of expatriation allowance from 1 July 2010 and seeking recovery of the expatriation allowance paid to him since that date.

Held:      The decision of the European Economic and Social Committee of 9 June 2011 is annulled in so far as it orders the recovery of the expatriation allowance paid to Mr Achab from 1 July 2010. The remainder of the action is dismissed. The European Economic and Social Committee is to bear its own costs and to pay half of the costs incurred by Mr Achab. Mr Achab is to bear half of his own costs.

Summary

1.      Officials — Remuneration — Expatriation allowance — Event warranting administration’s review of the recipient’s situation — Scope — Change of nationality

(Staff Regulations, Annex VII, Art. 4(1))

2.      Officials — Recovery of sums unduly paid — Conditions — Patent overpayment — Known by the official concerned

(Staff Regulations, Art. 85)

1.      In the case of an allowance paid monthly to officials satisfying the relevant conditions and designed to compensate a person for being subject to a particular burden or need, where that particular burden or need ceases to exist, the administration may not continue to pay that person the allowance concerned. Consequently, where an event occurs which is capable of substantially changing in law or in fact the situation of a person receiving an allowance, the administration may, or indeed must, review that person’s situation.

In that respect, since the nationality of the person concerned constitutes one of the parameters to be taken into account for the grant of the expatriation allowance under Article 4(1) of Annex VII to the Staff Regulations, an official’s change of nationality may be regarded as an event capable of substantially changing his situation and, accordingly, constitute a fact warranting review of his situation.

Moreover, the fact that an official covered by Article 4(1)(b) of Annex VII to the Staff Regulations, unlike an official covered by Article 4(1)(a), established his habitual residence — a term to be understood as meaning his centre of interests — in the country where he is employed, albeit for a very short time in the reference period, automatically denies him the expatriation allowance. In that regard, the conditions for the application of Article 4(1)(b) are different from those for Article 4(1)(a). Whereas officials who are not nationals of the country where they are employed will lose or be refused the grant of the expatriation allowance only if they were habitually resident in their future country of employment throughout the five-year reference period, for officials with the nationality of their country of employment, on the other hand, the fact that they kept or established their habitual residence there, albeit for a very short time in the ten-year reference period, is sufficient to result in the loss or refusal of the grant of that allowance.

(see paras 26, 27, 34-35)

See:

11 July 2007 F‑7/06 B v Commission, para. 38; 25 February 2008, F‑85/07 Anselmo and Others v Council, para. 25

2.      Article 85 of the Staff Regulations provides that any sum overpaid may be recovered by the administration in two cases: where the recipient was aware that there was no due reason for the payment or where the fact of the overpayment was patently such that he could not have been unaware of it.

In the first of those two cases, it is for the administration to prove that the recipient was actually aware that the payment was undue.

In the second case, the undue nature of the payment would not escape the notice of an official exercising ordinary care. On that point, account must be taken, in each case, of the ability of the official concerned to carry out the necessary checks.

(see paras 43-45)

See:

17 January 1989, 310/87 Stempels v Commission, paras 10 and 11