Judgment — ECLI:EU:F:2016:169
Date: 2016-07-21
Language of the case: French
Court formation: First Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Staff cases - inadmissible

Summary 1. Actions brought by officials — Prior administrative complaint — Correspondence between the complaint and the application — Grounds not set out in the complaint — Inadmissibility (Staff Regulations, Art. 91(2)) 2. Officials — Recovery of undue payments — Conditions — Patent overpayment — Criteria (Staff Regulations, Art. 85) 1. The rule of correspondence between a complaint under Article 91(2) of the Staff Regulations and the subsequent action requires that, for a plea before the EU judicature to be admissible, it must have already been raised in the pre-litigation procedure, enabling the authority empowered to conclude contracts of employment to know the criticisms made by the person concerned of the contested decision. (see para. 39) See: Judgment of 7 July 2004 in Schmitt v EAR, T‑175/03, EU:T:2004:214, para. 42 Judgment of 25 October 2013 in Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, para. 71 2. It is clear from Article 85 of the Staff Regulations that, for a sum paid without justification to be recovered, evidence must be produced to show that the recipient was actually aware that there was no due reason for the payment or that the fact of the overpayment was patently such that he could not have been unaware of it. The words ‘patently such’, used of the irregularity of the payment, in Article 85 of the Staff Regulations do not mean that an official in receipt of an undue payment does not need to make any effort to reflect or check, but mean 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. Article 85 of the Staff Regulations must be interpreted as meaning that it is not a question of whether or not the error was patent to the administration, but of whether it was patent to the person concerned. The situation of the administration, which is responsible for the payment of thousands of salaries and allowances of all kinds to its officials and other staff, cannot be compared to that of the official, who has a personal interest in checking the payments made to him every month. Accordingly, the fact that the administration did not cease to pay the education allowance does not affect the conclusion that the official concerned knew or could have known of that failure, and the official cannot, on the basis of good faith, escape the obligation to repay an allowance paid without justification. (see paras 50, 56-58) See: Judgments of 10 February 1994 in White v Commission, T‑107/92, EU:T:1994:17, paras 32, 33, 38 and 50; 27 February 1996 in Galtieri v Parliament, T‑235/94, EU:T:1996:22, para. 49; of 17 January 2001 in Kraus v Commission, T‑14/99, EU:T:2001:10, paras 36-38, and 5 November 2002 in Ronsse v Commission, T‑205/01, EU:T:2002:269, paras 45 and 46 Judgment of 27 January 2016 in DF v Commission, T‑782/14 P, EU:T:2016:29, paras 25 and 26 Judgment of 9 September 2008 in Ritto v Commission, F‑18/08, EU:F:2008:110, para. 40