Judgment — ECLI:EU:F:2014:228
Date: 2014-10-01
Language of the case: English
Court formation: Third Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Staff cases - inadmissible;Action for damages - successful;Action for damages - unfounded

Summary 1. Officials — Remuneration — Expatriation allowance — Conditions for granting — Habitual residence outside the Member State of employment during the reference period — Reference period — Determination of expiry date where official is on secondment — Date of the initial entry into service (Staff Regulations, Annex VII, Art. 4(1)(b)) 2. Officials — Recovery of undue payments — Conditions — Patent overpayment — Criteria (Staff Regulations, Art. 85) 3. Officials — Principles — Rights of defence — Obligation to hear the person concerned before adopting an act adversely affecting him — Scope — Infringement — Consequences (Charter of Fundamental Rights of the European Union, Art. 41(2)(a)) 1. As regards the conditions for granting the expatriation allowance where an official is on secondment, the 10-year period referred to in Article 4(1)(b) of Annex VII to the Staff Regulations always expires on the date of initial entry into service. (see para. 17) See: judgment in Magdalena Fernández v Commission, T‑90/92, EU:T:1993:78, para. 32 judgments in B v Commission, F‑7/06, EU:F:2007:129, para. 39; Cavallaro v Commission, F‑108/05, EU:F:2007:164, para. 71; and Blais v ECB, F‑6/08, EU:F:2008:160, para. 67 2. As regards the conditions for recovering undue payments, the words ‘patently such’, used of the irregularity of the payment, in Article 85 of the Staff Regulations do not mean that the official in receipt of an undue payment does not need to make any effort to reflect or check, but means 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. Thus, an experienced official, of a high grade and exercising ordinary care, cannot be unaware that payment of the expatriation allowance depends on expatriation within the meaning of Article 4 of Annex VII to the Staff Regulations, and there is no expatriation where an official is seconded in order to carry out duties in the country of which he is a national. Also, faced with the administration’s refusal to confirm in writing what was said orally, an experienced official, of a high grade and exercising ordinary care is required to verify the accuracy of such verbal assurances by sending, for example, an application in writing to the administration pursuant to Article 90(1) of the Staff Regulations. (see paras 35, 37, 38) See: judgment in Stempels v Commission, 310/87, EU:C:1989:9, para. 10; and order in Gouvras v Commission, C‑420/04 P, EU:C:2005:482, para. 59 judgments in Maslias v Parliament, T‑92/94, EU:T:1996:70, para. 60; Jensen v Commission, T‑156/96, EU:T:1998:174, para. 63; Barth v Commission, T‑348/00, EU:T:2001:144, para. 29; and Gussetti v Commission, T‑312/02, EU:T:2004:102, para. 82 3. Under Article 41(2)(a) of the Charter of Fundamental Rights of the European Union every person has the right to be heard before any individual measure which would affect him or her adversely is taken. However, for an infringement of the right to be heard to result in the annulment of a decision, it is also necessary to consider whether, in the absence of that irregularity, the procedure might have led to a different result. Consequently, where the fact that the person concerned was not afforded the opportunity to present his observations and provide explanations before the adoption of a decision to recover sums unduly paid was not such as to influence the content of that decision, infringement of the person’s right to a hearing cannot, of itself, justify annulment of that decision. It nevertheless remains the case that the administration, for that very reason, committed an unlawful act that constituted maladministration on its part capable of giving rise to compensation. (see paras 41-47) See: judgment in CH v Parliament, F‑129/12, EU:F:2013:203, paras 33 and 38