ORDER OF THE COURT (Seventh Chamber)
6 February 2024 (*)
(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Civil service – Official – Remuneration – Investigation of the European Anti-Fraud Office (OLAF) – Family allowances – Dependent child allowances – Article 2(4) of Annex VII to the Staff Regulations of Officials of the European Union – Person treated as a dependent child – Person whom the official has a legal responsibility to maintain and whose maintenance involves heavy expenditure – Conditions for granting – Withdrawal of entitlement to the allowance – Recovery of overpaid sums under Article 85 of the Staff Regulations – Action for annulment – Appeal in part manifestly inadmissible and in part manifestly unfounded)
In Case C‑498/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 July 2023,
AL, represented by R. Rata, avocate,
appellant,
the other party to the proceedings being:
European Commission,
defendant at first instance,
THE COURT (Seventh Chamber),
composed of F. Biltgen, President of the Chamber, N. Wahl and M.L. Arastey Sahún (Rapporteur), Judges,
Advocate General: N. Emiliou,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1        By his appeal, AL seeks to have set aside the judgment of the General Court of the European Union of 24 May 2023, AL v Commission (T‑714/21, EU:T:2023:282; ‘the judgment under appeal’), by which the General Court dismissed his action for annulment of the decision of the Office for the Administration and Payment of Individual Entitlements (PMO) of the European Commission of 11 January 2021 (‘the decision at issue’), which sought, in essence, (i) to reject his application for an allowance for his mother as a person treated as a dependent child on the basis of Article 2(4) of Annex VII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) for the period from 1 November 2020 to 31 October 2021 and (ii) to order the recovery of the sums which he had received by way of that allowance for the period from 1 November 2019 to 31 October 2020.
The appeal
2        Under Article 181 of its Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court of Justice may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.
3        It is appropriate to apply that provision in the present case.
4        On 22 November 2023, the Advocate General took the following position:
‘1.      In support of his appeal, the appellant puts forward three grounds of appeal, each alleging several errors of law and of assessment.
The first ground of appeal
2.      By his first ground of appeal, which primarily relates to paragraphs 19 and 34 of the judgment under appeal, the appellant complains that the General Court rejected his first two pleas in law raised at first instance alleging, first, infringement of the rights of the defence, and second, infringement of the principle of the protection of legitimate expectations.
3.      Thus, the appellant criticises the General Court, in the first place, for having failed to observe that the PMO had not informed him that he was expected to adduce proof that his mother had spent at least 180 days in Belgium. In the absence of such crucial information, the PMO adopted the decision at issue 18 days before the expiry of the time limit normally granted, during which the appellant could submit documentary evidence to substantiate his application. In that regard, the appellant asserts, in paragraph 19 of the judgment under appeal, that the General Court referred to the “numerous exchanges” during which the appellant had sent the PMO information and documents, without the General Court, however, acknowledging that those exchanges might have continued if the PMO had not abruptly adopted the decision at issue. Furthermore, the appellant asserts that parallel criminal proceedings in respect of the same facts are currently ongoing and that, therefore, the findings from those proceedings will allow him fully to exercise his rights of defence.
4.      Moreover, the appellant submits that, in failing to inform him that he was expected to adduce proof that his mother had spent at least 180 days a year in Belgium, the PMO required him to provide probatio diabolica by asking him to demonstrate compliance with a rule of which he was not aware.
5.      In the second place, the appellant claims that the judgment under appeal does not address the fact that the PMO was unable to refer in the decision at issue to any legal provision whatsoever imposing the criterion of 180 days per year so as to establish his mother’s place of residence. There is no reference to that criterion of 180 days per year, stated in the decision at issue, in either the Staff Regulations or Commission Decision C(2004) 1364 final/2 of 15 April 2014 on general implementing provisions concerning persons to be treated as dependent children (Article 2(4) of Annex VII to the Staff Regulations) (“the GIP”), which shows, according to the appellant, that the legislature did not intend to adopt a quantitative criterion. In those circumstances, the appellant primarily criticises the General Court for having validated that criterion, which is not set out in either of those decisions.
6.      In the third place, the appellant complains that the General Court failed to address the fact that the PMO had not provided him with the necessary information on the nature of the documents that he could produce in order to prove that his mother had spent at least 180 days in Belgium. By failing to provide him with that information, the PMO, according to the appellant, infringed Article 4 of the GIP under which “the appropriate departments shall provide the official with any guidance needed on this Section, particularly with regard to the nature of the supporting documents required”.
7.      It is true that, in paragraph 34 of the judgment under appeal, the General Court held “that it [was] apparent from the documents before the Court that the PMO [had] referred to certain types of documents which could be sent to it in order to demonstrate the [appellant’s] mother’s actual place of residence, such as, for example, medical receipts …, while indicating that documents of any other nature would also be welcomed”. As regards, first, the medical receipts, the appellant claims that the General Court required him to provide evidence which is impossible to produce in so far as he had already explained that his mother was treating herself with natural remedies, which are not reimbursable. Second, as regards “documents of any other nature”, the appellant submits that such a reference is, on account of its vagueness, contrary to the obligation imposed on the PMO by Article 4 of the GIP.
8.      As regards, first of all, the appellant’s first argument, alleging, in essence, that the General Court failed to take into consideration the fact that the decision at issue is based on a criterion of which he had never been informed before, it must be noted that that argument is based on an incorrect reading of the judgment under appeal. The General Court held, in paragraph 27 of that judgment, that the period of the appellant’s mother’s presence in Belgium was not the sole justification for the decision at issue. In that respect, the General Court stated, in paragraph 25 of that judgment, that the PMO’s findings, as set out in the decision at issue, were based on the fact that the appellant’s mother owned an apartment in Bucharest (Romania) and on her residence in two Member States, namely the Kingdom of Belgium and Romania.
9.      In that regard, it must be borne in mind that Article 2(4) of Annex VII to the Staff Regulations leaves the administration a margin of discretion in dealing with each individual case. The actual words used in that provision make it clear that those who drafted the Staff Regulations intended to leave the administration some discretion in appraising the facts and circumstances adduced, in each case, in support of an application for an allowance in respect of a person treated as a dependent child. Such a margin of discretion is justified by the considerations of natural justice to which the administration must have regard in exercising the special power provided for under the provision in question and by the resultant need to judge each case on its merits (see, to that effect, judgment of 7 June 1972, Brandau v Council, 46/71, EU:C:1972:50, paragraphs 7 to 9).
10.      Moreover, the appellant cannot validly claim that the PMO failed to inform him that he was expected to adduce proof that his mother had spent at least 180 days in Belgium. As the General Court pointed out, in paragraph 28 of the judgment under appeal, the exchanges between the appellant and the PMO concerned specifically the determination of his mother’s place of residence.
11.      In that regard, it must be recalled that, where an institution is competent to grant an allowance, such as that provided for in Article 2(4) of Annex VII to the Staff Regulations, it is required to ascertain whether the conditions to which the entitlement to that allowance is subject are met (see, to that effect, judgment of 28 November 1991, Schwedler v Parliament, C‑132/90 P, EU:C:1991:452, paragraphs 19 to 24). In accordance with the settled case-law of the General Court, it is for the official to prove that the conditions to be satisfied in order to obtain payment of an allowance are met, in particular the condition relating to the actual maintenance of the dependent child or the person treated as such (see, to that effect, order of 17 June 2019, BS v Parliament, T‑593/18, EU:T:2019:425, paragraph 39).
12.      Next, as regards the appellant’s second argument, alleging that the decision at issue was based on a criterion devoid of legal basis, the General Court explained, in paragraph 26 of the judgment under appeal, that it was apparent from the decision rejecting the complaint that the reference to his mother’s presence in Belgium for a period of 180 days was merely indicative in nature. Thus, in the same paragraph, the General Court pointed out that the PMO had merely stated that such a criterion was capable, despite the fact that his mother owned an apartment in Bucharest and had dual residence in two Member States, of demonstrating her predominant presence in Belgium. That approach appears to be within the limits of the discretion of the administration to appraise the facts and circumstances.
13.      Lastly, as regards the appellant’s last argument alleging that there was no indication as to the nature of the documents that he could produce in order to prove that his mother had spent at least 180 days in Belgium, it must be noted that, in paragraph 34 of the judgment under appeal, the General Court found that the PMO had identified certain types of documents which could “demonstrate the [appellant’s] mother’s actual place of residence, such as, for example, medical receipts” or any other document “of any other nature”. Under Article 4 of the GIP, the PMO was solely required to provide the appellant with any guidance needed with regard to the nature of the supporting documents required. However, the expression “any guidance needed” does not necessarily mean that the PMO had to provide the appellant with an exhaustive list of all the documents capable of demonstrating that his mother’s place of residence was in Belgium.
14.      In the light of all the foregoing, the first ground of appeal must be rejected as manifestly unfounded.
The second ground of appeal
15.      By his second ground of appeal, which primarily relates to paragraphs 55 to 58 and 62 of the judgment under appeal, the appellant complains that the General Court rejected his third plea in law raised at first instance alleging an error of assessment as regards his mother’s place of residence.
16.      More specifically, by his second ground of appeal, the appellant primarily criticises the General Court for committing several errors of law and of assessment in so far as it found that his mother’s country of residence is not Belgium but Romania. Thus, according to the appellant, the General Court incorrectly disregarded certain evidence despite the difficulties encountered in obtaining it during the COVID-19 pandemic.
17.      In that regard, it must be borne in mind that, according to settled case-law of the Court of Justice, it is apparent from Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal is to be limited to points of law and that the General Court therefore has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The assessment of the facts and evidence does not, save where the facts or evidence are distorted, constitute a point of law, which is subject, as such, to review by the Court of Justice on appeal. Such a distortion must be apparent from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and evidence. Where an appellant alleges distortion of the evidence by the General Court, he or she must, under those provisions and Article 168(1)(d) of the Rules of Procedure, indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which, in his or her view, led to such distortion (see, to that effect, judgments of 10 July 2019, VG v Commission, C‑19/18 P, EU:C:2019:578, paragraphs 47 and 48, and of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 167 and the case-law cited).
18.      Therefore, the appraisal of the facts by the General Court does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (judgment of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 104). By contrast, when the General Court has established or assessed the facts, the Court of Justice has jurisdiction, under Article 256 TFEU, to review the legal characterisation of those facts by the General Court and the legal conclusions which it has drawn from them (see, to that effect, judgment of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 47).
19.      In the present case, by his line of argument raised in the context of his second ground of appeal, the appellant attempts to call into question the General Court’s appraisal of the evidence and thereby to obtain a re-examination of the facts by the Court of Justice, without alleging that the facts have been distorted by the General Court.
20.      Accordingly, the second ground of appeal must be rejected as manifestly inadmissible.
The third ground of appeal
21.      By his third ground of appeal, which primarily relates to paragraphs 78 and 79 of the judgment under appeal, the appellant complains that the General Court rejected his fourth plea in law at first instance alleging infringement of Article 85 of the Staff Regulations.
22.      First of all, the appellant asserts that, in paragraphs 78 and 79 of the judgment under appeal, the General Court noted that he already had 12 years of experience at the time of the application for the allowance at issue. According to the appellant, it is beyond doubt, irrespective of his grade and experience, that he was in error about the fact that his mother owned property. He maintains that he was always convinced that his mother did not own any property in Romania and that, in all his previous applications for an allowance for her to be treated as a dependent child, he had indicated the same incorrect information.
23.      According to the appellant, the question is if he should have been aware of the irregularity of the payment of the allowance at issue. In the present case, his mother deliberately concealed the fact that she owned a flat in Romania. She explained in detail the situation in a declaration made before the administration of the city of Zaventem (Belgium).
24.      In that regard, it must be noted that, by his line of argument raised in the context of his third ground of appeal, the appellant attempts, in essence, to call into question the General Court’s appraisal of the facts, without alleging that they have been distorted. Since the appellant has not alleged, or, a fortiori, demonstrated, that the General Court has distorted the facts, his arguments are, in the light of the case-law cited in points 17 and 18 of the present position, inadmissible.
25.      In the light of the foregoing, the third ground of appeal must be rejected as manifestly inadmissible and, accordingly, the appeal must also be dismissed in its entirety.’
5        For the same reasons as those given by the Advocate General, the appeal must be dismissed in its entirety as being in part manifestly inadmissible and in part manifestly unfounded.
Costs
6        Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. Since the present order has been adopted before the appeal has been served on the other party to the proceedings and, therefore, before the latter could have incurred costs, it is appropriate to decide that AL is to bear his own costs.
On those grounds, the Court (Seventh Chamber) hereby orders:
1.      The appeal is dismissed as being in part manifestly inadmissible and in part manifestly unfounded.
2.      AL shall bear his own costs.
Luxembourg, 6 February 2024.
A. Calot Escobar
F. Biltgen
Registrar
President of the Chamber
*      Language of the case: English.