JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
16 July 2025 (*)
( Civil service – EIB staff – Individual award – OLAF investigation – Recovery of sums unduly paid – Article 16.3 of the EIB Staff Rules – Principle of good administration – Principle of transparency – Duty to have regard for the welfare of officials )
In Case T‑417/24,
ET, represented by L. Levi and A. Champetier, lawyers,
applicant,
v
European Investment Bank (EIB), represented by T. Gilliams, C. Pierre and I. Zanin, acting as Agents, and by K. Veranneman, lawyer,
defendant,
THE GENERAL COURT (Fifth Chamber),
composed of J. Svenningsen, President, J. Laitenberger (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure,
further to the hearing on 8 April 2025,
gives the following
Judgment
1 By his action under Article 270 TFEU, the applicant, ET, seeks, first, the annulment of the decision of the European Investment Bank (EIB) of 11 January 2024 to recover an amount of EUR 37 817.23 paid in respect of individual awards for the years 2019 to 2021 (‘the contested decision’) and, secondly, compensation for the damage he claims to have suffered as a result of the recovery of that amount.
Background to the dispute
2 On 1 July 2019, the applicant was recruited under a fixed-term employment contract for four years at level 7 as Head of the [confidential] (1) Division within the Secretariat General of the EIB in Luxembourg (Luxembourg), subject to a six-month probationary period that ended on 31 December 2019.
3 In November and December 2019, the EIB’s senior management and the applicant entered into discussions regarding a possible temporary assignment to the [confidential] in Brussels (Belgium).
4 On 10 December 2019, the applicant sent an email to the President of the EIB seeking to ‘inform [the President] of the latest developments concerning [the applicant’s] possible secondment’ and to ‘seek [the President’s] feedback before taking a … decision’. That email contained, inter alia, the following passage:
‘There is an issue with the financial conditions of my secondment. EIB services have been trying hard to find solutions over the past two weeks, but at this stage it seems very uncertain whether an acceptable solution can be found.
As I told you, I am very happy to be assigned to the position of [confidential], provided you consider the strengthening of inter-institutional cooperation between the EIB and the [confidential] of interest to the Bank. However, I am not in a position to take on this assignment, if it entails a net financial loss, hence jeopardising my family’s finances. Such a loss would result from the lack of a geographical mobility allowance.’
5 On 13 December 2019, during a telephone conversation, a director from the EIB’s Human Resources Directorate informed the applicant that a solution had been found to the financial conditions of his temporary assignment.
6 On 15 December 2019, that same director sent an email to the Secretary-General of the EIB, also stating that ‘a solution regarding [the applicant had been found]’. The email contained, inter alia, the following passage:
‘Regarding the financial conditions [of the applicant’s temporary assignment] we will stay within our legal framework. The President would … consider [the applicant’s] extraordinary engagement within the context of the annual appraisal exercises for the years during secondment. When [the applicant] will go on secondment he will have completed his six months at EIB Luxembourg, which makes him eligible for the appraisal exercise. This additional financial recognition, which should cover his additional financial costs and equal the amount of a geographic mobility allowance, is independent of any decision on his individual award, which will be assessed by his hierarchy based on his performance.
I have discussed the matter with [the applicant] again on Friday evening and he is fine with such a solution.
…
I would like to take the opportunity to thank all colleagues … for having worked together to find this solution …’
7 The applicant’s temporary assignment to the [confidential] took effect on 1 January 2020.
8 For each of the years 2019, 2020 and 2021, the applicant received an individual award of EUR 38 625 gross, corresponding to EUR 23 018 net.
9 On 9 November 2020, the European Anti-Fraud Office (OLAF) opened an investigation into the existence of potential irregularities or misconduct related to the calculation and payment of performance awards to the applicant.
10 On 10 June 2022, the EIB agreed to the extension of the applicant’s temporary assignment until 30 November 2024.
11 The applicant’s employment contract was converted into a contract of indefinite duration as of 1 October 2022.
12 On 19 December 2022, OLAF delivered its final report. It concluded, in particular, that, although the applicant did meet the eligibility criteria to be granted individual awards for the years 2019, 2020 and 2021, the amounts he received did not comply with the EIB’s Performance Management Guidelines (‘the Performance Management Guidelines’) and systematically exceeded the maximum amounts recommended by the EIB’s Human Resources Directorate. More specifically, OLAF considered, first, that the amount received by the applicant for 2019 was not consistent with his performance assessment, secondly, that the amount of the individual awards granted for 2020 and 2021 was based on an agreement concluded in 2019 and was therefore not connected to the appraisal exercises for those years and, thirdly, that a comparison with the applicant’s peers showed that the amounts received were contrary to the principle of equal treatment. It thus considered that the classification of payments made as individual awards was contrary to the provisions of the Performance Management Guidelines and, therefore, unlawful.
13 By letter of 19 December 2022, the Director-General of OLAF informed the EIB of the action he recommended be taken following the investigation carried out by OLAF, namely the recovery of an amount estimated at EUR 58 410 from the applicant corresponding to the difference between the amount received in respect of individual awards for the years 2019, 2020 and 2021 and the maximum amounts recommended by the Human Resources Directorate for those years. It was stated in that letter that ‘it [was], however, the prerogative of the competent services of the [EIB] to proceed to a more detailed calculation, taking into account any additional financial information OLAF [was] not aware of’.
14 By letter of 20 December 2022, OLAF informed the applicant that the investigation had been closed. OLAF informed him, inter alia, that ‘no evidence ha[d] been found against [him]’, but that it was ‘making a Recommendation [nevertheless] to the [EIB] to undertake appropriate measures to ensure the recovery of [EUR 58 410], … that [he had been] unduly granted as Individual Award[s] in 2020, 2021 and 2022’.
15 By letter of 17 October 2023, the EIB informed the applicant that it intended to recover the amount of EUR 37 785.67 and invited him to submit his observations.
16 The applicant submitted his observations on 13 November 2023.
17 On 11 January 2024, the EIB adopted the contested decision, seeking to recover the sum of EUR 37 817.23, corresponding to part of the individual awards received by the applicant for the years 2019, 2020 and 2021.
18 On 18 January 2024, the EIB sent the applicant a recovery schedule.
19 On 6 February 2024, the applicant submitted a request for review of the contested decision under Article 41 of the EIB Staff Regulations.
20 By decision of 16 July 2024, the EIB rejected the applicant’s request for review (‘the decision rejecting the request for review’).
Forms of order sought
21 The applicant claims that the Court should:
– annul the contested decision;
– annul, in so far as necessary, the decision rejecting the request for review;
– order the EIB to compensate him in the amount of EUR 15 000 for the non-material damage he claims to have suffered;
– order the repayment of the sum deducted from his salary, increased by default interest at the rate fixed by the European Central Bank (ECB) plus two points;
– order the EIB to pay the costs.
22 The EIB contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
Subject matter of the action
23 By his second head of claim, the applicant seeks the annulment, in so far as necessary, of the decision rejecting the request for review.
24 According to settled case-law, in particular concerning the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), a claim for annulment formally directed against the decision rejecting a complaint has the effect of bringing before the Court the act against which the complaint was submitted, where that claim, as such, lacks any independent content (see judgment of 16 January 2018, SE v Council, T‑231/17, not published, EU:T:2018:3, paragraph 21 and the case-law cited). That may, in particular, be the case where the Court finds that the decision rejecting the complaint is purely confirmatory of the decision which is the subject of the complaint and that, therefore, the annulment of the former would have no effect on the legal position of the person concerned distinct from that which follows from the annulment of the latter (see judgment of 6 February 2019, TN v ENISA, T‑461/17, not published, EU:T:2019:63, paragraph 31 and the case-law cited).
25 The request for review before the President of the EIB, governed by Article 41 of the EIB Staff Regulations, pursues the same objective as the mandatory pre-litigation procedure established by Article 90 of the Staff Regulations, in that it gives the EIB the possibility of reversing the contested measure, and the staff member concerned the option of accepting the reasons on which the contested measure is based and, where appropriate, not initiating proceedings (see judgment of 7 September 2022, KL v EIB, T‑751/20, not published, EU:T:2022:514, paragraph 35 and the case-law cited; see also, to that effect, judgment of 7 September 2022, LR v EIB, T‑529/20, EU:T:2022:523, paragraph 11 and the case-law cited).
26 In the present case, the decision rejecting the request for review altered neither the meaning nor the scope of the contested decision. In the decision rejecting the request for review, the EIB did not re-examine the applicant’s situation in the light of new elements of law and of fact, but merely confirmed the contested decision, stating the grounds on which it was based.
27 In those circumstances, it must be held, by analogy with the case-law cited in paragraph 24 above, that the claim for annulment formally directed against the decision rejecting the request for review must be regarded as being directed solely against the contested decision, the legality of which must, however, be examined by taking into account the statement of reasons contained in the decision rejecting the request for review, which is deemed to be the same as that of the contested decision (see, to that effect, judgment of 7 September 2022, LR v EIB, T‑529/20, EU:T:2022:523, paragraph 14 and the case-law cited).
Claim for annulment of the contested decision
28 In support of his claim for annulment of the contested decision, the applicant raises two pleas in law alleging, first, infringement of Article 16.3 of the EIB Staff Rules in the version of 18 October 2023 (‘the Staff Rules’) and, secondly, a breach of the ‘dut[ies] of good administration, transparency and care’.
The first plea, alleging infringement of Article 16.3 of the Staff Rules
29 The applicant maintains that the EIB wrongly asserts that he was aware that the payment of the individual awards to be recovered was not only linked to his performance, but it was also compensation for his acceptance of the temporary assignment, due to the impossibility of paying him a geographical mobility allowance.
30 In that regard, the applicant submits that OLAF concluded, in its final report, that ‘no evidence [had] been found against [him]’. According to the applicant, although OLAF acknowledged that the sums paid did not appear to correspond to his performance, it did not, however, state that he was aware of that lack of correspondence. Thus, in the decision rejecting the request for review, the EIB wrongly deduced from OLAF’s findings on the irregularity of the payment of individual awards that the applicant was aware of that irregularity.
31 Furthermore, in the contested decision, the EIB wrongly relied on several elements in order to conclude that the applicant was aware or should have been aware that the payments at issue were irregular.
32 First, as regards the EIB’s argument that the amount of the individual awards was the same for the three years concerned, which demonstrates that it had been fixed prior to the appraisal exercise for the respective years, there is nothing in the internal email between the Secretary-General and the Human Resources Directorate relied on by the EIB – of which, moreover, the applicant was not aware – to show that the applicant was aware of the existence of an agreement between the two services in that regard. The applicant also submits that the identical nature of the amounts paid did not enable him to infer from them that they were irregular. Given that the payment of a performance award falls within the discretion of the administration, it is free to set the amount, in accordance with Section 4.2 of the Performance Management Guidelines. Thus, in view of the interest that his temporary assignment represented for the EIB, the applicant considered that the payments were intended to reward his merits.
33 Secondly, as regards the email of 10 December 2019 referred to in paragraph 4 above, in which the applicant informed the President of the EIB, inter alia, of his concerns regarding the financial conditions of his temporary assignment, the applicant submits that he merely stated that he would not accept the temporary assignment under the conditions previously offered, taking into account his ineligibility for the geographical mobility allowance. Thus, that email does not make it possible to establish a link between the conditions set by the applicant and the awards subsequently received. The argument, put forward in the decision rejecting the request for review, that it could be inferred from the applicant’s acceptance of his temporary assignment that he was aware that he would receive financial compensation for the lack of geographical mobility allowance is ineffective, in so far as he accepted his temporary assignment due to his being informed that the EIB’s senior management had discretion to address his extraordinary situation.
34 Thirdly, as regards the assertion that the applicant had been informed, during the discussion with the director from the Human Resources Directorate referred to in paragraph 5 above, that he would receive individual awards to compensate for the lack of geographical mobility allowance, which is borne out by the email from the director from the Human Resources Directorate to the Secretary-General of the EIB referred to in paragraph 6 above, the applicant submits that that is incorrect. He was given no explanation of the solution actually put in place nor was he aware of the artificial nature of the individual awards, but was merely assured that he would not be financially impacted by the temporary assignment.
35 Fourthly, the EIB’s argument put forward in the decision rejecting the request for review that the applicant was aware that the individual awards paid did not correspond to genuine performance-related awards, since the net amount of those awards was almost identical to the amount he would have received if he had been eligible for the geographical mobility allowance, is also incorrect. The fact that those amounts are very similar does not prove that the applicant was aware of any irregularity.
36 Fifthly and lastly, the applicant submits that the assertion, contained in the decision rejecting the request for review, that he is an experienced EU official with a high level of responsibility and significant seniority, and that he was responsible for assessing the performance of the members of his team, is irrelevant in the present case. He had in fact never taken any decisions relating to awards granted to the members of his team. Furthermore, his seniority did not call into question the fact that he was in no position to deduce from any elements that the payments received corresponded to the geographical mobility allowance.
37 The EIB disputes those arguments. At the hearing, it stated that the irregularity was or should have been known to all the persons involved. It stressed that the decision of the EIB’s senior management to grant the individual awards in question paid to the applicant had been taken in flagrant breach of the rules applicable at the material time.
38 Article 16.3 of the Staff Rules, infringement of which is alleged in the context of the present plea, provides, in a manner similar to that laid down in Article 85 of the Staff Regulations, that ‘amounts unduly paid to a member of staff … under these Rules 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’.
39 Thus, Article 16.3 of the Staff Rules lays down two cumulative conditions, namely, first, that the amount that the EIB wishes to recover has been unduly paid and, secondly, that the recipient was aware that there was no due reason for the payment or that the overpayment was patently such that he or she could not have been unaware of it.
40 In the contested decision, the EIB noted, in essence, that the first condition laid down in Article 16.3 of the Staff Rules was satisfied since the OLAF report had established the irregularity of the payments made to the applicant by way of individual awards for the years 2019, 2020 and 2021. As regards the second condition, the EIB considered that, in view of the circumstances of the present case, the applicant should have been aware that the amount of the individual awards received for the years 2019, 2020 and 2021 was disconnected from his performance and was therefore not in line with the Performance Management Guidelines.
41 In the present case, the applicant does not call into question the irregular nature of the payment of the individual awards that he received for the years 2019, 2020 and 2021, as was found in the OLAF report and in the contested decision, which he confirmed at the hearing. He therefore merely challenged the second condition laid down in Article 16.3 of the Staff Rules.
42 That second condition has two distinct elements.
43 As regards the first element, it is for the administration to prove that the recipient actually was aware of the irregularity of the payment (see, by analogy, judgment of 18 June 2019, Quadri di Cardano v Commission, T‑828/17, not published, EU:T:2019:422, paragraph 45 and the case-law cited).
44 As regards the second element, two factors must be taken into account when examining whether the irregularity of the payment was patently such that the official could not have been unaware of it, that is, the clarity of the applicable provisions, on the one hand, and the grade and experience of the official, on the other (see, by analogy, judgments of 27 January 2016, DF v Commission, T‑782/14 P, EU:T:2016:29, paragraph 25, and of 18 June 2019, Quadri di Cardano v Commission, T‑828/17, not published, EU:T:2019:422, paragraph 46 and the case-law cited).
45 More specifically, it is clear from the case-law that the words ‘patently such’, used of the irregularity of the payment within the meaning of Article 16.3 of the Staff Rules, do not mean that the recipient of an undue payment does not need to make any effort to reflect or check. On the contrary, repayment is required where the error is one which would not escape the notice of an official exercising ordinary care. The official is deemed to know the rules governing his or her salary (see, by analogy, judgments of 27 January 2016, DF v Commission, T‑782/14 P, EU:T:2016:29, paragraph 26 and the case-law cited, and of 18 June 2019, Quadri di Cardano v Commission, T‑828/17, not published, EU:T:2019:422, paragraph 47 and the case-law cited).
46 The factors taken into consideration by the Courts of the European Union in assessing the ability of the official or agent concerned to make the necessary checks concern his or her level of responsibility, grade and seniority, the degree of clarity of the provisions of the Staff Regulations setting out the conditions for grant of the benefit at issue and the significance of the changes in his or her personal or family circumstances where payment of the sum at issue is linked to an assessment of such circumstances by the administration (see judgments of 27 January 2016, DF v Commission, T‑782/14 P, EU:T:2016:29, paragraph 27 and the case-law cited, and of 18 June 2019, Quadri di Cardano v Commission, T‑828/17, not published, EU:T:2019:422, paragraph 48 and the case-law cited).
47 Moreover, as is clear from the settled case-law, it is not necessary for the official or agent concerned, in the exercise of his or her duty of diligence, to be able to determine the precise extent of the error made by the administration. It is sufficient, in that regard, that he or she has doubts about the validity of the payments in question. Such doubts give rise to an obligation to contact the administration so that it can carry out the necessary checks (see judgments of 27 January 2016, DF v Commission, T‑782/14 P, EU:T:2016:29, paragraph 28 and the case-law cited, and of 18 June 2019, Quadri di Cardano v Commission, T‑828/17, not published, EU:T:2019:422, paragraph 49 and the case-law cited).
48 Recovery of amounts unduly paid under Article 16.3 of the Staff Rules does not therefore presuppose fraudulent fault or intent on the part of the person concerned, which in any event is lacking in the present case, but depends on whether, after examining the relevant facts, the observations of the person concerned and the applicable legal framework, it appears objectively that the person concerned was aware or should have been aware of the irregularity of the payments in question (see, to that effect and by analogy, judgment of 15 December 2021, HG v Commission, T‑693/16 P RENV‑RX, EU:T:2021:895, paragraph 112).
49 In the present case, it is sufficient to consider whether the irregularity of the payments at issue was patently such that the applicant could not have been unaware of it.
50 To that end, first of all, it should be noted that it is undisputed that the payments at issue were made as individual awards within the meaning of the Performance Management Guidelines.
51 Next, Section 4.2 of the Performance Management Guidelines, headed ‘The Performance Award’, provides that the individual award is ‘discretionary’ and intended to ‘reward higher performance and/or specific contribution to the [EIB’s] priorities or objectives’. It is stated in that section that the amount of the individual award is based on individual performance and comparison with peers. It also states that the individual award is a one-off annual payment, paid after the performance evaluation is completed. It is also apparent from Section 3.4 of the Performance Management Guidelines, headed ‘Evaluating performance at year-end’, that the performance evaluation is carried out in two steps and is finalised in March following the year concerned by the appraisal. Lastly, at the hearing, the EIB stated that the budget allocated to individual awards was initially proposed by the Human Resources Directorate and that it was very similar, but not identical year to year.
52 It therefore follows from Sections 3.4 and 4.2 of the Performance Management Guidelines referred to in paragraph 51 above that the individual award is necessarily paid to EIB staff after the performance evaluation, which must take place annually, is completed. In the present case, it is apparent from OLAF’s final report that the individual awards paid to the applicant had been determined in 2019 for the years 2019, 2020 and 2021, which the applicant does not dispute. The applicant also confirmed at the hearing that, apart from the appraisal at the end of his probationary period, no appraisal exercise had taken place for the years during which the awards at issue had been paid to him. It is also apparent from the file that the amount of the individual awards was the same for each of those years. Therefore, the payments at issue were clearly disconnected from an annual evaluation of the applicant’s performance. That is all the more obvious when account is taken of the fact that the applicant received the same amount by way of an individual award for 2019, the year in which he worked for the EIB only as from July, as for the full years of 2020 and 2021.
53 In addition, it is apparent from the file that, for 2021, the average amount granted as an individual award for a ‘performing’ profile in grade 7, corresponding to the applicant’s profile at the end of his probationary period and remaining unchanged since then, amounted to EUR 18 094 gross and that the amount awarded to a ‘top performing’ profile in the same grade amounted to EUR 22 710 gross, whereas the applicant was awarded an amount of EUR 38 625 gross. Thus, the amounts paid to the applicant by way of individual awards greatly exceeded the indicative amounts provided by the EIB’s Human Resources Directorate for each appraisal exercise. In addition, they also exceeded the average amounts actually granted to members of staff in grade 7, even though it is apparent from the applicant’s appraisal at the end of his probationary period in 2019 that the EIB considered that his performance was, in terms of achievement of objectives and demonstration of competencies, ‘meeting expectations’ and not ‘above expectations’.
54 Furthermore, while the indicative amounts provided by the EIB’s Human Resources Directorate are not communicated to staff members, the average amounts actually paid are made public at the end of each appraisal exercise. The applicant maintains that he was not aware of those amounts, but acknowledged at the hearing that he could have nevertheless been aware of them.
55 Lastly, first, it is apparent from the file that the applicant was aware of his ineligibility to receive a geographical mobility allowance and that he expressly stated, in his email to the President of the EIB referred to in paragraph 4 above, that he would not be in a position to accept his temporary assignment if it entailed a financial loss due the non-payment of that allowance. Secondly, it should be noted that, if the applicant had been eligible for that allowance, the amount that he would have received on that basis would have amounted to EUR 23 162 net per year, whereas the individual award that he ultimately received corresponded to an amount of EUR 23 018 net per year. The fact that the applicant had addressed the problem relating to the financial loss he would suffer as a result of the non-payment of the geographical mobility allowance and the fact that the net amount received in respect of the awards at issue was almost identical to that of that allowance that was not received also constitute evidence indicating that the individual awards received were in fact disconnected from the applicant’s performance and that he should and could have been aware of that fact and, therefore, the irregularity of the payments at issue.
56 It follows from all the foregoing that, first, the amounts received by the applicant for the years 2019, 2020 and 2021 could not validly be received as amounts regularly paid as performance awards within the meaning of the Performance Management Guidelines and, secondly, having regard in particular to the case-law cited in paragraph 45 above, the applicant could not validly claim that the irregularity was not patently such that he could not have been unaware of it. Indeed, in view of the fact that an official exercising due care is deemed to know the rules governing his or her salary, the applicant should have recognised that the amounts which he had received as individual awards did not satisfy the conditions laid down by the Performance Management Guidelines in order to be classified as such. In that regard, it should be noted that the applicant had understood that it was legally impossible to pay him the geographical mobility allowance, so he subsequently approached the administration in order to request an alternative solution. In such a situation, the applicant should and could have taken greater care to ensure that the solution ultimately found was lawful under the applicable legal framework. The solution ultimately adopted had no basis in the wording of the applicable provisions, so its irregularity was no less patent than that of any payment of the geographical mobility allowance.
57 That is all the more true since it follows from the case-law cited in paragraph 47 above that it is sufficient for the applicant to have doubts about the validity of the payments in question for him to be obliged to contact the administration so that it can carry out the necessary checks. The applicant himself claims to have been confronted with the EIB’s refusal to confirm to him in writing that its President had discretion to recognise his extra efforts. In those circumstances, an experienced official of a high grade and exercising care such as the applicant should have verified the accuracy of any verbal assurances given to him, by sending, for example, an application in writing to the administration (see, to that effect, judgment of 27 January 2016, DF v Commission, T‑782/14 P, EU:T:2016:29, paragraph 38).
58 That finding cannot, moreover, be called into question by the applicant’s argument relating to the existence of discretion on the part of the President of the EIB when implementing Section 4.2 of the Performance Management Guidelines, which would have enabled the President to recognise the applicant’s contribution to the EIB’s priorities and objectives. Although that section provides that the amount of the individual award is to be determined in a discretionary manner, the fact remains that the discretion of the EIB’s senior management in relation to the awards at issue is not unlimited and remains circumscribed, inter alia, by the objective pursued by those awards, by the procedure laid down for granting them and by the substantive criteria that are supposed to guide the granting of those awards, of which an official exercising due care cannot be unaware.
59 In particular, the fact that the determination of the amount is discretionary does not mean that it is possible for the EIB’s senior management to depart, a priori, from the conditions laid down by the Performance Management Guidelines for granting an individual award such as, inter alia, carrying out a performance evaluation for the years concerned. It is true that the margin of discretion could justify exceeding the indicative amounts of an award in the event of a specific and exceptional evaluation and therefore exceeding the award a posteriori. However, in the present case, the lack of a specific and exceptional evaluation fundamentally precludes such a justification.
60 In that regard, it should be noted that the budget allocated to the awards is specific to the performance evaluation provided for in the Performance Management Guidelines and is intended for a variety of potential beneficiaries. The grant of an individual award in breach of the applicable rules is therefore liable to cause harm to other potential beneficiaries, which explains the effort to ensure transparency referred to in paragraph 54 above. Even if the applicant had not been involved in the details of the grant of individual awards, because of his relatively recent arrival at the EIB before the facts at issue, he had nevertheless been recruited as head of a division, with the management responsibilities, including human resources responsibilities, which that entails. A manager must necessarily be alert to the legal problems caused by a distribution of limited resources contrary to the applicable rules.
61 It must also be stated that the question whether other discretionary powers of the President of the EIB, and more particularly those conferred by Article 23 of the Rules of Procedure of the EIB, under which ‘the President [of the EIB] shall have the power to … do everything that is useful and necessary in the [EIB]’s interest’, made it possible to reward the applicant’s extra efforts or, at the very least, to cover the actual costs incurred by him, has no bearing on the finding that the applicant was clearly in a position to know that the payments at issue were irregular. The applicant does not dispute that the payments in question represented individual awards within the meaning of the Performance Management Guidelines, which, moreover, he confirmed at the hearing. Accordingly, whether or not other mechanisms for upholding the applicant’s financial claims exist is not relevant for the purpose of assessing the legality of the contested decision, which relates solely to the recovery of the undue part of the individual awards.
62 Lastly, the finding that the applicant cannot validly maintain that the irregularity of the individual awards as paid to him was not patent is also not called into question by the assertion, in the letter accompanying the OLAF report, that ‘no evidence has been found against [him]’. It is apparent from its wording and context that that assertion relates to findings of fact made by OLAF as regards the EIB’s decision to pay the awards at issue. The question of whether or not the applicant was responsible for the irregularity of the payments is without prejudice to the question of whether or not their irregularity was patent within the meaning of Article 16.3 of the Staff Rules. If OLAF had ruled out the patent nature of the irregularity, it could not have recommended, in its report, the recovery of sums unduly paid under Article 16.3 of the Staff Rules. In fact, the OLAF report states that the application of the provisions relating to the recovery of sums unduly paid does not presuppose that the person concerned is responsible for the irregularity in question, but that it is sufficient to establish the irregularity and that the person concerned was aware of that irregularity or, alternatively, that it was patent. Moreover, the recovery of an unduly paid sum does not, as such, imply that any criticism is made against the person concerned. It merely regularises a situation that is objectively irregular.
63 In the light of the foregoing, it must be held that the irregularity of the payments, in so far as they were made by way of individual awards, was patently such that the applicant could not have been unaware of it.
64 Accordingly, the first plea must be rejected as unfounded.
The second plea, alleging breach of the ‘dut[ies] of good administration, transparency and care’
65 The applicant submits that the right of the EU institutions to seek recovery of sums unduly paid must be weighed against their obligation to ensure the right of individuals to good administration. That right, enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, involves a duty of diligence that requires the competent institution to examine and deal carefully and attentively with files relating to the pecuniary rights of individuals.
66 The applicant submits that the EIB breached its duties of good administration, transparency and care for a number of reasons.
67 First, the applicant considered the temporary assignment to the [confidential] only because that assignment was in the interest of the EIB. He was under pressure to do so. As he had accepted the temporary assignment, he decided to rent a flat in Brussels while keeping his flat in Luxembourg.
68 Secondly, during his telephone conversation with the director from the EIB’s Human Resources Directorate, the applicant was never informed, contrary to what the EIB claims, of the details of the arrangements put in place. However, the director from the Human Resources Directorate assured him that he would not be negatively impacted and that his efforts would be recognised. According to the applicant, the details of the arrangements put in place did not fall within his responsibility and he could legitimately believe that they complied with the rules.
69 Thirdly, the granting, on a discretionary basis, of certain ‘packages’ to members of staff is common and accepted practice. That is also apparent from the minutes of the hearing of the Secretary-General of the EIB by OLAF. The director from the EIB’s Human Resources Directorate also told the applicant that the EIB’s senior management had discretion to address extraordinary situations and to recognise extra efforts.
70 Fourthly, the applicant submits that, in view of the fact that his temporary assignment was in the EIB’s interest, the EIB was willing to do everything possible to ensure that the applicant accepted the temporary assignment, by assuring him that the management had full leeway to decide on the most attractive solution.
71 Fifthly, the applicant submits that he made himself available for a temporary assignment that was in the interest of the service and that, to that end, he had accepted in good faith the proposal made to him by highly qualified persons at the top of the hierarchy.
72 Sixthly and lastly, the applicant bore the additional costs arising from his stay in Brussels during the three years in question in order to respond to the EIB’s request. In his view, it had been agreed that the temporary assignment had to be financially neutral for him. The EIB’s lack of transparency as regards the technical arrangements implemented, and the EIB’s new interpretation of those arrangements, namely that they are unlawful, cannot, in the applicant’s view, have a detrimental impact on him.
73 The EIB disputes those arguments.
74 In the first place, it should be noted that the applicant’s argument by which he claims, in essence, that he should have benefited from financial recognition of his extra efforts, as the EIB’s senior management assured him, is ineffective in the present case.
75 The subject matter of the present dispute, as defined by the applicant himself, is limited solely to the decision to recover part of the individual awards at issue as paid to him.
76 It has previously been held that the conditions governing the recovery of sums unduly paid are not to be confused with other conditions that may make it possible to uphold a financial claim of the person concerned (see, to that effect, judgment of 19 December 2019, Wehrheim v ECB, T‑100/18, not published, EU:T:2019:882, paragraph 100).
77 In the second place, under Article 41 of the Charter of Fundamental Rights, ‘every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union’.
78 With regard to the duty to have regard for the welfare of officials, the Court of Justice has held that that duty and the principle of good administration mean, in particular, that when the authority takes a decision concerning the situation of an official it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned (see order of 7 June 1991, Weyrich v Commission, T‑14/91, EU:T:1991:28, paragraph 50 and the case-law cited).
79 However, the duty to have regard for the welfare of officials cannot under any circumstances require the administration to act against the applicable provisions. In particular, the duty to have regard for the welfare of officials cannot lead the administration to give a provision of EU law an effect that would go against the clear and precise terms of that provision. Therefore, an applicant cannot rely on the duty to have regard for the welfare of officials in order to obtain advantages that the Staff Regulations or any other relevant legislation do not allow him or her to be granted (see, to that effect, judgment of 16 May 2007, F v Commission, T‑324/04, EU:T:2007:140, paragraph 169 and the case-law cited).
80 In view of the fact that it has been found, in the present case, that the irregularity of the payments was patently such that the applicant should have been aware of it, the failure to inform the administration of the possible undue nature of his financial rights placed the applicant, by his own conduct, in a situation in which he could not rely on his good faith in order to be released from the obligation to repay the undue sum. In such a case, the EIB cannot be criticised for having breached the duty to have regard for the welfare of officials or for having failed to comply with the principle of good administration. The EIB correctly applied Article 16.3 of the Staff Rules (see, to that effect and by analogy, judgment of 16 May 2007, F v Commission, T‑324/04, EU:T:2007:140, paragraphs 159, 164 to 166 and 170).
81 Thus, the EIB cannot be criticised for having breached its duty of good administration and its duty to have regard for the welfare of officials by remedying, pursuant to Article 16.3 of the Staff Rules, an irregular situation, even where its administration was in part responsible for the existence of that situation. Accordingly, the arguments alleging breach of the duty of good administration and of the duty to have regard for the welfare of officials are unfounded.
82 Lastly, as regards the complaint alleging breach of the duty of transparency, it is apparent from paragraph 56 above that it was for the applicant to inquire into the manner in which the EIB intended to grant the financial relief sought by the applicant, so the EIB cannot be accused of a breach of the duty of transparency. In any event, in view of the fact that the individual award for 2019 was paid to the applicant in 2020, it must be held that the applicant became aware of the solution put in place by 2020 at the latest without, however, contacting the administration, with the result that he cannot rely on a breach of the duty of transparency.
83 Accordingly, the present plea in law should be rejected as being in part ineffective and in part unfounded and, consequently, the claim for annulment of the contested decision should be dismissed.
The claim for damages and the claim for reimbursement of the sum withheld from the applicant’s salary
84 The applicant submits that the EIB’s ‘illegal behaviour’ caused him high stress, given that he must repay the amounts at issue while paying two rents at the same time. He thus considers that he has suffered non-material damage. He assesses that non-material damage ex aequo et bono at EUR 15 000.
85 The applicant also considers that the amounts recovered must be repaid to him, together with default interest at the rate fixed by the ECB, plus two points.
86 The EIB contends that those claims should be rejected.
87 According to settled case-law, claims for compensation of material or non-material damage must be rejected where they are closely linked with the claims seeking annulment, which themselves have been rejected as inadmissible or unfounded (see judgment of 19 October 2022, MV v Commission, T‑624/20, not published, EU:T:2022:653, paragraph 145 and the case-law cited).
88 In the present case, it is apparent from the application that the claim for damages is closely linked to the claim for annulment, since the non-material damage for which the applicant seeks compensation stems from the alleged illegalities vitiating the contested decision.
89 Since the application for annulment of the contested decision has been rejected as unfounded, the claim for damages must also be rejected.
90 As regards the claim seeking an order for repayment of the sum withheld from the applicant’s salary, it should be recalled that, according to the case-law, the Courts of the European Union cannot, without encroaching upon the prerogatives of the administration, order an EU institution or body to take the specific measures required to comply with a judgment setting aside a decision (see judgment of 7 September 2022, LR v EIB, T‑529/20, EU:T:2022:523, paragraph 65 and the case-law cited).
91 Nevertheless, in disputes of a financial character, the unlimited jurisdiction conferred on the EU Courts by Article 91(1) of the Staff Regulations entrusts those Courts with the task of providing a complete solution to the disputes brought before them, that is to say to rule on all the rights and obligations of the staff member, save for leaving to the institution in question, under the control of those Courts, the implementation of such part of the judgment and under such precise conditions as those Courts are to determine (see judgment of 7 September 2022, LR v EIB, T‑529/20, EU:T:2022:523, paragraph 66 and the case-law cited).
92 Thus, ‘disputes of a financial character’ within the meaning of Article 91(1) of the Staff Regulations include not only actions brought by staff members seeking to have an institution held liable, but also all those seeking payment by an institution to a staff member of a sum which the latter considers to be due to him or her under the Staff Regulations or other measure governing their working relations (see judgment of 7 September 2022, LR v EIB, T‑529/20, EU:T:2022:523, paragraph 67 and the case-law cited).
93 Furthermore, according to the case-law, the rule contained in the second sentence of Article 91(1) of the Staff Regulations should be applied to disputes between the EIB and its staff (see judgment of 7 September 2022, LR v EIB, T‑529/20, EU:T:2022:523, paragraph 69 and the case-law cited).
94 In the present case, the applicant’s request that the EIB reimburse him the sum withheld from his salary, together with default interest, is of a financial character within the meaning of Article 91(1) of the Staff Regulations.
95 However, it is apparent from the considerations set out in paragraphs 38 to 64 above that the EIB correctly concluded that the conditions of Article 16.3 of the Staff Rules, on which it had relied in order to recover the sum at issue, were satisfied in the present case, with the result that no repayment of the sums recovered had to be made.
96 Accordingly, the form of order sought by the applicant seeking an order that the EIB repay to him the entire sum recovered from the date of the first salary deduction, together with default interest fixed at the interest rate applied by the ECB for its main refinancing operations and in force on the first day of the month in which payment fell due, increased by two points, must be rejected and, accordingly, the action must be dismissed in its entirety.
Costs
97 According to Article 135(1) of the Rules of Procedure of the General Court, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his or her own costs, or even that he or she is not to be ordered to pay any costs.
98 In the present case, the Court finds that the EIB itself acknowledged, at the hearing, that the irregularity justifying, in the present case, the recovery of the sums unduly paid was or should have been known to all the persons involved. The EIB’s senior management took the decision to adopt a ‘pragmatic’ solution to the applicant’s situation, in flagrant breach of the rules applicable at the material time. While it is true that, pursuant to Article 16.3 of the Staff Rules, the sums at issue must be recovered, the fact remains that the EIB was, by its conduct, responsible for the situation in which the applicant found himself.
99 Accordingly, the EIB must be ordered to bear its own costs and to pay half of the costs incurred by the applicant. The applicant shall bear half of his own costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Dismisses the action;
2. Declares that the European Investment Bank (EIB) shall bear its own costs and orders the EIB to pay half of the costs incurred by ET, the latter bearing half of his own costs.
Svenningsen | Laitenberger | Martín y Pérez de Nanclares |
Delivered in open court in Luxembourg on 16 July 2025.
V. Di Bucci | | M. van der Woude |