Judgment — ECLI:EU:T:2018:347
Date: 2018-06-14
Language of the case: Italian
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Action for damages - unfounded;Staff cases - successful;Action for damages - inadmissible

Summary — Judgment of the General Court (Ninth Chamber), 14 June 2018 1. Actions brought by officials — Acts adversely affecting an official — Decision taken after reconsideration of an earlier decision and on the basis of new facts — Decision without confirmatory effect — Admissibility (Staff Regulations of Officials, Arts 90(2) and 91) 2. Officials — Decision adversely affecting an official — Obligation to state reasons — Scope — Inadequate statement of reasons — Regularisation during the proceedings — Conditions (Staff Regulations of Officials, Art. 25, second para.) 3. Officials — Pensions — Method of calculation of the survior’s pension — Inclusion of the orphan’s pensions in the income subject to the ceiling of Article 81a of the Staff Regulations (Staff Regulations of Officials, Arts 80, 81a and 84, and Annex VIII, Art. 21) 4. Officials — Recovery of undue payments — Conditions — Patent overpayment — Knowledge of the person concerned — Criteria — No obvious irregularity (Staff Regulations of Officials, Art. 85) 5. Actions brought by officials — Actions for damages — Pre-litigation procedure — Different process according to whether there is or is not an act adversely affecting the person concerned (Staff Regulations of Officials, Arts 90 and 91) 6. Officials — Non-contractual liability of the institutions — Causal link — Harm resulting from the free choice of the applicant — No causal link between the damage and the conduct of the institution (Arts 270 and 340, second para., TFEU) 1. A notice fixing pension rights was adopted following reconsideration of the applicants’ legal situation and on the basis of new facts cannot be regarded as being a purely confirmatory act of a previous notice of fixing of pension rights. On the contrary, that notice constitutes an act which, in acting as a substitute for the preceding acts, brings about a distinct change in the applicants’ legal situation, affects their interests directly and immediately and therefore affects them adversely within the meaning of Article 90(2) and Article 91 of the Staff Regulations. (see paras 51, 57) 2. See the text of the decision. (see paras 69, 70, 76, 77, 80-82) 3. Article 81a of the Staff Regulations covers both the survivor’s pension and the orphan’s pension. Thus, the method of calculation of pension entitlements applied by the institution, by which the orphan’s pensions in the actual income subject to the cap provided for in Article 81a are included, complies with that provision. Principally, the orphan’s pensions are provided for in Article 80 of the Staff Regulations, which is part of Title V, Chapter 3, of the Staff Regulations, entitled ‘Pensions and invalidity allowance’. Those pensions are genuine pensions and are subject as such to the pension scheme referred to in the Staff Regulations. Furthermore, the detailed rules for the calculation of orphan’s pensions are laid down in Chapter 4, Article 21, of Annex VIII to the Staff Regulations, under the reference in Article 84 of the Staff Regulations, and that that chapter is entitled ‘Survivor’s pension’. Such an observation shows that the expression ‘survivor’s pension’ is used by the legislature to identify not only the pension of the surviving spouse of the deceased official, in other words the survivor’s pension in the strict sense of the term, but also provisions concerning the orphan’s pensions. Thus, although certain provisions refer explicitly to orphan’s pensions, that does not mean that other provisions that do not refer to them explicitly may not be applied to them, as they are genuine pensions which are, by virtue of that fact, subject to the provisions of the Staff Regulations that are applicable generally to pensions. Moreover, since Article 81a of the Staff Regulations is one of the final provisions of Title V, Chapter 3, of the Staff Regulations and is among the provisions applicable to pensions, of which the pensions provided for in Article 80 form a part, Article 81a cannot be interpreted as excluding orphan’s pensions. That provision’s use of the expression ‘survivor’s pensions’ in the plural must be construed as referring to any type of ‘pensions’, the triggering factor for which is the death of an official, which is the case not only for the survivor’s pension, but also for the orphan’s pension. Moreover, under the first to third paragraphs of Article 80 of the Staff Regulations and Article 21 of Annex VIII to the Staff Regulations, the survivor’s pension and the orphan’s pension are linked, as the amount of the latter is contingent on the amount of the former. In any event, the underlying purpose of the orphan’s pension, which is to compensate for the costs incurred by the surviving official for the maintenance of dependent children, contributes towards achieving the objective of fostering financial autonomy for those children. To the extent that the orphan’s pension enables the costs of maintaining the children to be offset, it is part of the family income and does not escape the rule proscribing enrichment as a result of the death of a parent who is also an official, compliance with which rule is ensured by the application of the cap provided for in Article 81a of the Staff Regulations. (see paras 94-96, 103, 104) 4. Article 85 of the Staff Regulations provides for the administration to be able to recover any amount unduly received in two situations: where the recipient was aware that there was no due reason for the payment and where the irregularity of the payment was patently such that he could not have been unaware of it. As regards the first of those scenarios, it is for the administration to prove that the recipient actually was aware that there was no due reason for the payment. As regards the second scenario, account must be taken in each case of the ability of the official concerned in each case to make the necessary checks. The factors taken into account by the EU judicature in determining whether the error by the administration was patently such include the level of responsibility of the official linked to his grade and seniority, and also the degree of clarity of the applicable Staff Regulations provisions setting out the conditions for granting the emoluments owing to the party concerned and the significance of the changes in his personal or family circumstances where payment of the sum at issue is linked to an assessment of such circumstances by the administration. It is not necessary for the official concerned, in the exercise of his duty of diligence, to be able to determine the precise extent of the error made by the administration. The fact that he has doubts about the validity of the payments in question is sufficient, in that regard, for him to be obliged to contact the administration so that it can carry out the necessary checks. It cannot be argued that the skills and knowledge associated with the grade of an official could enable him, on the basis of a mere reading of a notice amending the rights to a survivor’s and orphan’s pension, to overcome the difficulties of legal interpretation of the provisions of the Staff Regulations, to identify the calculations done by the administration and to understand that a notice fixing pension rights was vitiated by an error that gave rise to an irregular payment. (see paras 146-148, 153, 155, 169) 5. See the text of the decision. (see paras 185, 186) 6. Inasmuch as the loss alleged by the applicants results directly from their life choices and not from any unlawful conduct on the part of the administration, the existence of a causal link between that conduct and the loss is not sufficiently direct for the institution to incur non-contractual liability. (see para. 200)