Judgment — ECLI:EU:T:2002:272
Date: 2002-11-12
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Prior administrative complaint;Family allowances;Recovery of undue payment
Procedure: Action for damages - successful;Staff cases - successful

SUMMARY — CASE T-271/01 
abatement and the expatriation allowance, as amended by 
the Commission's decision of 16 July 2001, is annulled in 
so far as the latter decision recognises shared entitlement 
to the allowances at issue and the advantages resulting 
from that entitlement only for the future. The Commission 
is ordered to pay to the applicant: default interest, as from 
November 2000, on the sum of EUR 1 193.85 and, as 
from each month from December 2000 to September 2001, 
on each monthly instalment of EUR 1 200 until such time 
as those sums have been repaid to him; default interest on 
the applicant's share of the proceeds of the allowances at 
issue, as from each month from October 2000 until the 
date on which the decision of 16 July 2001 took effects 
until the sums owed are paid in full. The rate of default 
interest to be applied is to be calculated on the basis of the 
rate set by the European Central Bank for capital 
refinancing operations in force during the period 
concerned, increased by two percentage points 
Summary 
1. Officials - Remuneration - Family allowances - Child of two divorced officials 
actually maintained by both - Simultaneous entitlement of two officials to the 
allowances and to the advantages resulting from entitlement - Sharing between the 
ex-spouses 
(Staff Regulations, Art. 67(1); Annex VII, Arts 1(2)(b), 2(1), (2) and (6), and 3, 
first para.; Council Regulation No 260/68, Arts 3(3) and 4) 
2. Officials - Actions - Prior complaint through official channels - Claim for 
default interest made for the first time before the Court of First Instance in the event 
that the contested decision is annulled - Admissibility 
(Staff Regulations, Arts 90 and 91) 
I-A - 222 
LOPEZ CEJUDO v COMMISSION 
3. Officials - Recovery of undue payments - Unlawful recovety - Repayment -
Entitlement to default interest - Point from which time starts to run 
1. For the purposes of recognition of entitlement to the family allowances provided 
for in Article 67(1) of the Staff Regulations, a child who is actually being 
maintained by an official is regarded as a dependent child (Article 2(2) of 
Annex VII to the Staff Regulations). In this connection, there is nothing to prevent 
a child from being regarded as being actually maintained by a number of persons 
at the same time and therefore as being a dependent of two officials at the same 
time. 
Consequently, if two divorced Community officials actually provide jointly for the 
basic needs of the children of their marriage dissolved by divorce, those officials are 
both entitled to the family allowances listed in Article 67(1) of the Staff Regulations. 
They are also entitled, by reason of the maintenance of the children concerned, to 
the advantages resulting from entitlement to those allowances, which are provided 
for, as regards the calculation of the expatriation allowance, in Article 4(1) of 
Annex VII to the Staff Regulations and, as regards tax, in Article 3(3) and (4) of 
Regulation No 260/68. Under the principle that only one allowance is payable per 
child, laid down in Article 2(6) of Annex VII to the Staff Regulations, those 
proceeds must be shared between the ex-spouses. However, an institution may not 
deny one of its officials the share of those proceeds to which he is entitled on the 
ground that another institution has, wrongly, granted the whole of those proceeds 
to his ex-spouse. 
(see paras 33-39) 
See: C-132/90 P Schwedler v Parliament [1991] ECR I-5745. para. 17: T-69/91 
Peroulakis v Commission [1993] ECR II-185. paras 32 to 34 
I-A - 223 
SUMMARY - CASE T-271/01 
2. In staff cases, in order to be admissible before the Court of First Instance, a 
claim for default interest, made in the event that the contested decision is annulled, 
need not have been expressly mentioned in the prior complaint through official 
channels. 
(see para. 52) 
See: T-4/92 Vardakas v Commission [1993] ECR II-357, para. 50; T-15/93 Vienne v 
Parliament [1993] ECR II-1327, para. 42; T-171/99 Corns UK v Commission [2001] 
ECR II-2967, paras 50 to 54 
3. Where Article 85 of the Staff Regulations, relating to the recovery of undue 
payments, has been unlawfully applied to an official, the official concerned is 
entitled not only to repayment of the sums deducted on that basis from his 
remuneration, but also to default interest as from the date of deduction until the date 
of repayment. 
(see paras 55-56) 
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