62023TJ0123
JUDGMENT OF THE GENERAL COURT (Fifth Chamber, Extended Composition)
5 June 2024 (
*1
)
(Civil service – Officials – Remuneration – Family allowances – Dependent child allowance – Education allowance – Decisions to terminate certain allowances – Conditions for granting – Concept of ‘end of education’ – Equal treatment – Principle of sound administration – Recovery of undue payment – First paragraph of Article 85 of the Staff Regulations – Responsibility)
In Case T‑123/23,
VA, represented by N. de Montigny, lawyer,
applicant,
v
European Commission, represented by T. Bohr and M. Brauhoff, acting as Agents,
defendant,
THE GENERAL COURT (Fifth Chamber, Extended Composition),
composed of S. Papasavvas, President, J. Svenningsen, J. Laitenberger, J. Martín y Pérez de Nanclares and M. Stancu (Rapporteur), Judges,
Registrar: L. Ramette, Administrator,
having regard to the written part of the procedure,
further to the hearing on 23 January 2024,
gives the following
Judgment
1
By his action based on Article 270 TFEU, the applicant, VA, seeks, first, annulment of the decisions of the Office for the Administration and Payment of Individual Entitlements (PMO) of the European Commission of 11 May 2022 removing his entitlement to receive, with effect from 1 July 2021, dependent child and education allowances and the tax abatement relating to the dependent child allowance, and of 13 June 2022 announcing the recovery, pursuant to Article 85 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), of those financial entitlements and, second, compensation for the harm which he claims to have suffered as a result.
I. Background to the dispute
2
The applicant is an official in the General Secretariat of the Council of the European Union.
3
His daughter studied at a Belgian university. In particular, she sat her last examination of her course of study on 18 June 2021, learned that she had passed her examinations on 2 July 2021 and received a certificate of successful completion on 27 August 2021. The academic year ended on 13 September 2021.
4
Until September 2021, the applicant received, in respect of his daughter, the dependent child allowance and the education allowance provided for in Articles 2 and 3 of Annex VII to the Staff Regulations and benefited from the tax allowance linked to the dependent child allowance, provided for by Council Regulation (EEC, Euratom, ECSC) No 260/68 of 29 February 1968 laying down the conditions and procedure for applying the tax for the benefit of the European Communities (OJ 1968 L 56, p. 8) (together, ‘the financial entitlements at issue’).
5
On 16 September 2021, the applicant submitted, in the IT application ‘Sysper 2’, the end of studies declaration for his daughter, stating that her last examination was on 18 June 2021.
6
Under Council Decision (EU) 2019/792 of 13 May 2019 entrusting to the European Commission – the Office for the Administration and Payment of Individual Entitlements (PMO) – the exercise of certain powers conferred on the appointing authority and on the authority empowered to conclude contracts of employment (OJ 2019 L 129, p. 3), the PMO is responsible for the management and payment of individual financial entitlements of staff of the General Secretariat of the Council, including the financial entitlements at issue.
7
On 24 September 2021, the PMO informed the applicant that, in the light of his declaration of 16 September 2021, the financial entitlements at issue would be cancelled retroactively from 1 July 2021 (‘the decision of 24 September 2021’). That decision also stated that any sum overpaid would give rise to recovery under Article 85 of the Staff Regulations and that he would receive a separate note informing him of the arrangements for recovering the sums overpaid since 1 July 2021. The decision of 24 September 2021 included a deduction of EUR 2 619.66 from the payslip for October 2021, corresponding to the amount of the financial entitlements at issue for the period from July to September 2021 (‘the period at issue’).
8
On 3 January 2022, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against that pay slip (‘the first complaint’).
9
By decision of 5 May 2022, the appointing authority annulled the decision of 24 September 2021 as well as the subsequent recovery in the salary slip for October 2021 and returned the applicant’s file to the competent department for re-examination of his case, on the ground that the applicant had not been heard before the latter decision was adopted.
10
Following the decision of 5 May 2022, the PMO made a cash advance of EUR 3500 to the applicant. That amount corresponds to the payment of four monthly instalments of the financial entitlements at issue.
11
By decision of 11 May 2022, the PMO confirmed the retroactive withdrawal of the financial entitlements at issue with effect from 1 July 2021 (‘the first contested decision’), while informing the applicant that those rights could be reviewed if he were able to provide an official document showing that the ‘last examination, submission and/or defence of the dissertation’ of his daughter had taken place after June 2021 and that he could submit his observations within fifteen days of receipt of that decision. The PMO also informed the applicant that any sum overpaid would be recovered under Article 85 of the Staff Regulations and that a separate note would be sent to him to inform him of the arrangements for recovering the financial entitlements overpaid since 1 July 2021.
12
On 13 June 2022, the applicant received a recovery note pursuant to Article 85 of the Staff Regulations (‘the second contested decision’). That decision stated that the total amount for which the applicant was liable was EUR 3500, that that sum would be recovered in three monthly instalments from August 2022 and that he had fifteen days from receipt of that decision to submit his comments.
13
Following that decision, an exchange of emails took place between the applicant, his adviser and the PMO, with a view to clarifying the content of the first and second contested decisions (together, ‘the contested decisions’).
14
In particular, by email of 22 June 2022, the PMO informed the applicant that, since his daughter had passed her examinations in June 2021 at the first examination session, he was no longer entitled to receive the financial entitlements at issue from July 2021. It also pointed out that the applicant had not provided any other documents to show that his daughter had pursued her university education after 30 June 2021. As regards the recovery of the sum of EUR 3500, the PMO stated, inter alia, that the applicant had mistakenly received four monthly instalments of the financial entitlements at issue instead of three (see paragraph 10 above).
15
On 9 August 2022, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the contested decisions (‘the second complaint’), also requesting reimbursement of the lawyers’ fees incurred in the context of the first complaint.
16
The second complaint was rejected by the decision of the appointing authority of 9 December 2022.
II. Forms of order sought
17
The applicant claims, in essence, that the Court should:
–
annul the contested decisions;
–
order the Commission to pay compensation in the amount of EUR 2 441.84;
–
order the Commission to pay the costs.
18
At the hearing, the applicant stated that he was seeking the annulment of the second contested decision only in the amount of EUR 2 619.66, corresponding to the amount of the financial entitlements at issue, and not EUR 3500, formal note of which was taken in the minutes of the hearing.
19
The Commission contends that the Court should:
–
dismiss the action as unfounded;
–
order the applicant to pay the costs of the proceedings.
III. Law
A. The claims for annulment
20
The applicant puts forward five pleas in law in support of his claim for annulment, the first three of which are directed against the first contested decision and the other two against the second contested decision.
1.
The pleas directed against the first contested decision
21
Those pleas allege, in essence, (i) infringement of Articles 2 and 3 of Annex VII to the Staff Regulations, (ii) infringement of the principle of equal treatment and (iii) breach of the principle of legal certainty and of the principle of sound administration.
(a)
The first plea, alleging infringement of Articles 2 and 3 of Annex VII to the Staff Regulations
22
By his first plea, the applicant submits that the Commission infringed Articles 2 and 3 of Annex VII to the Staff Regulations (‘the provisions at issue’) by considering that his daughter had completed her university education on 18 June 2021, the date of her last exam, and that, therefore, he was no longer entitled to receive the financial entitlements at issue for the period in question. In his view, the end date of his daughter’s education, which, in the present case, brings the financial entitlements at issue to an end, is the date of the end of the academic year, namely 13 September 2021, or, at the very least, the date on which his daughter received the certificate of successful completion, namely 27 August 2021.
23
In the alternative, the applicant submits that the end date of her education should be, at the earliest, when the child becomes aware of the results of the examinations, in this case 2 July 2021, given that it is from that time that the child knows the outcome of her last academic year and may therefore begin to seek employment.
24
The Commission disputes the applicant’s arguments.
25
First, it contends that, since the provisions at issue confer entitlement to financial benefits, they must be interpreted strictly. It adds that the financial entitlements at issue depend on the actual continuity of educational or vocational training and regular full-time attendance at an educational establishment. Secondly, it is apparent from the case-law of the Courts of the European Union, in particular the judgments of 21 November 1991, Costacurta v Commission (C‑145/90 P, EU:C:1991:435), and of 19 September 2018, HD v Parliament (T‑604/16, not published, EU:T:2018:562), that the financial entitlements at issue must be assessed on a month-by-month basis and must cease when the dependent child no longer attends the higher education institution regularly and on a full-time basis. In addition, a child who ceases to attend that establishment is likely to work, have an income and thus effectively support himself or herself. Thirdly, it points out that Article 6 of its decision of 16 December 2013 laying down general implementing provisions for the grant of the education allowance draws a distinction between school holidays at the end of an academic year and those following the last school year at the end of which the child completes his or her education. Fourthly, the applicant has failed to prove that, without her university degree, his daughter would have been refused access to a certain job or that she would not have found suitable employment. Fifthly, the concept of ‘completion of education’ is autonomous and should be given a uniform interpretation applicable in all the Member States in which the children of staff members pursue their education. Sixthly, the applicant’s argument concerning an alleged infringement of Article 52 of the Charter of Fundamental Rights of the European Union has not been demonstrated in any way.
26
Finally, as regards the alternative argument, the Commission submits that the date on which the results of the examinations were known cannot be accepted either, since after the last examination the students cease to attend the courses, and thus to attend the higher education institution regularly and full-time.
27
The General Court notes that, by the first plea, the applicant alleges infringement of the provisions at issue, in that the Commission misinterpreted the condition relating to the ‘end of education’ causing the financial entitlements at issue to expire.
28
In particular, the parties do not agree on the date on which that condition is satisfied, namely at the time (i) of sitting the last university examination, (ii) of knowledge of the results of the final examinations, (iii) of the issue of the certificate of successful completion or (iv) of the end of the academic year. In the present case, those four points in time fall, respectively, between June and September 2021.
29
As a preliminary point, it is worth recalling the conditions giving entitlement to the financial entitlements at issue, in particular the dependent child allowance and the education allowance, as well as the relationship between those two allowances.
30
As regards the dependent child allowance, Article 2 of Annex VII to the Staff Regulations is worded as follows:
‘1.   An official who has one or more dependent children shall, in accordance with paragraphs 2 and 3 below, receive an allowance of … per month for each dependent child.
…
3.   The allowance shall be granted:
(a)
automatically for children under eighteen years of age;
(b)
on application, with supporting evidence, by the official for children between eighteen and twenty-six who are receiving educational or vocational training.
…’
31
As regards the education allowance, Article 3(1) of Annex VII to the Staff Regulations provides:
‘1.   Subject to the conditions laid down in the general implementing provisions, an official shall receive an education allowance equal to the actual education costs incurred by him up to a maximum of EUR … per month for each dependent child, within the meaning of Article 2(2) of this Annex, who is at least five years old and in regular full-time attendance at a primary or secondary school which charges fees or at an establishment of higher education. …
Entitlement to that allowance shall commence on the first day of the month in which the child begins to attend a primary educational establishment and shall cease at the end of the month in which the child finishes its education or at the end of the month in which the child reaches the age of twenty-six, whatever is the earliest. …’
32
It is apparent from those provisions that the education allowance is merely a corollary of the dependent child allowance, since the former cannot be granted unless the conditions for obtaining the latter have first been met. By specifying that the education allowance is payable ‘for each dependent child, within the meaning of Article 2(2) of that annex, who is at least five years old’, the legislature intended to make entitlement to that allowance subject to prior fulfilment of the conditions laid down for the grant of the dependent child allowance. In other words, the education allowance can be paid only if the official has a dependent child of at least five years of age in respect of which he or she receives such an allowance.
33
Entitlement to the education allowance is, moreover, subject to compliance with a second cumulative condition, namely regular full-time attendance at an educational establishment by that child.
34
Since the education allowance can only be granted, as stated in paragraph 32 above, if the conditions for obtaining the dependent child allowance have first been met, it follows that the condition of regular full-time attendance at an educational establishment (‘the condition of attendance’) must be assessed at a second stage, after it has been established that the child in respect of whom the education allowance is claimed is dependent on the official.
35
In the light of those considerations, the Court will examine, first, whether, during the period at issue, the conditions for obtaining the dependent child allowance were satisfied and, secondly, whether the applicant’s daughter also satisfied the condition of attendance, laid down in Article 3(1) of Annex VII to the Staff Regulations, in order to qualify for the education allowance.
(1) Compliance with the conditions for the grant of the dependent child allowance during the period at issue
36
It should be recalled that, in a case such as the present, where a child is studying at university, entitlement to the dependent child allowance is subject to the fulfilment of three conditions, namely that the official actually maintains his child, that the child is between 18 and 26 years of age and that the child is receiving educational or vocational training (see, to that effect, judgment of 17 November 2021, KR v Commission (T‑408/20, not published, EU:T:2021:788, paragraph 24).
37
In the present case, it should be noted that the first and second conditions, and the ‘educational’ nature of the training in which the applicant’s daughter was enrolled, are not disputed by the Commission. On the other hand, the third condition, relating to attending educational training, is not satisfied, according to the Commission, since the applicant’s daughter had not received such training since 18 June 2021, the date of her last examination.
38
In that regard, it should be noted that ‘training’ consists of several stages, such as participation in the courses provided for in the programme of studies and in examinations relating to those courses, the assessment of those examinations and, at the end of the last of those examinations, the provision, by the educational establishment providing the training in question, of the final results certifying that the course has been successfully completed. Those stages are indissociable from each other, since participation in the examinations makes it possible to assess the student’s acquisition of the skills and knowledge imparted in connection with the courses provided.
39
Since the student can be informed that he or she has successfully completed his or her training only after he or she has completed all the examinations and once the results of those examinations have been made available by the educational establishment, it is from the moment when the final results are available that the student must be regarded as no longer receiving training within the meaning of Article 2(3)(b) of Annex VII to the Staff Regulations.
40
Thus, contrary to the Commission’s argument, a child aged between 18 and 26 who receives educational or vocational training remains the responsibility of the official not until that child sits his last examination, but until the final results are made available by the educational establishment.
41
That interpretation is, moreover, consistent with the case-law, such as that derived from the judgment of 17 April 2002, Sada v Commission (T‑325/00, EU:T:2002:101, paragraph 37), according to which the provisions of EU law which confer entitlement to financial benefits must be interpreted strictly and with that resulting from the judgments of 21 November 1991, Costacurta v Commission (C‑145/90 P, EU:C:1991:435, paragraph 6), and of 19 September 2018, HD v Parliament (T‑604/16, not published, EU:T:2018:562, paragraph 133), according to which, because of the monthly nature of the financial entitlements at issue, the question whether the conditions for their grant are met must be assessed on a monthly basis.
42
Since the dependent child allowance is an allowance paid monthly and, for children aged between 18 and 26, ‘on application, with supporting evidence’, it is the official’s responsibility to inform the administration of the end of his child’s education by informing it without delay of the date on which the final results were made available by the educational establishment, so that the administration can immediately stop payment of that allowance.
43
In the present case, it is apparent both from Annex A.9 to the application, which contains a certificate of successful completion dated 27 August 2021 from the university at which the applicant’s daughter was registered, and from the email from the legal department of that university produced by the applicant in the context of the measure of organisation of procedure of 7 December 2023, that the final results were made available by the university on 2 July 2021, the date on which, moreover, the applicant’s daughter could already download a certificate of successful completion. Consequently, in the light of the considerations set out in paragraphs 38 to 40 above, it must be held that, from the month following the date on which the final results were made available by the educational establishment, namely August 2021, the applicant’s daughter could no longer be regarded as dependent on him and the applicant was no longer eligible for the dependent child allowance.
44
It follows from the foregoing that the Commission erred in law in refusing to grant the applicant the dependent child allowance for the month of July 2021. On the other hand, it was right to refuse him that allowance for August and September 2021.
45
Such a refusal cannot be called into question by the other arguments put forward by the applicant to show that he was entitled to the dependent child allowance for both August and September 2021. First, in so far as the applicant maintains that, according to the university attended by his daughter and the Belgian authorities, the latter retained the status of student until the end of September 2021, it must be held, as the Commission did, that the provisions at issue must be interpreted independently. As has been pointed out in paragraphs 38 to 40 above, Article 2(3)(b) of Annex VII to the Staff Regulations must be interpreted as meaning that it is from the time when the final results have been made available by the educational establishment that the child must be regarded as no longer receiving ‘training’ within the meaning of that provision. Thus, it is entirely possible for the child to complete his or her education before the end of the academic year even if, according to the university or the legislation of the State in which the university is based, the child may still enjoy student status until the end of that year.
46
Secondly, the claim that it is necessary to have a university degree in order to gain access to certain professions is in no way substantiated and appears, above all, to be inconsistent with the claims that are the subject of the present action. It must be stated that, even though that diploma was awarded to his daughter on 8 October 2021 (see paragraph 12 of the application), the applicant does not claim that he was eligible for the financial entitlements at issue also for October 2021. Furthermore, the applicant states, in paragraph 93 of the application, that his daughter found employment from 1 October 2021, that is to say, one week before the award of the degree.
47
Thirdly, as regards the claim raised by the applicant in the reply that the Commission’s interpretation of the provisions at issue is contrary to Article 52 of the Charter of Fundamental Rights and the principle of equal treatment, it should be noted, first, that claim is in no way substantiated or reasoned and that, secondly and in any event, a similar argument was also raised in the context of the second plea, alleging breach of the principle of equal treatment, which will be analysed below.
(2) Compliance with the condition of attendance, laid down in Article 3(1) of Annex VII to the Staff Regulations, during the period at issue
48
At the outset, it should be noted that, since the applicant is not entitled to the dependent child allowance for the months of August and September 2021 (see paragraph 44 above) he cannot claim the education allowance for those months either, as is apparent from paragraph 32 above.
49
Consequently, the Commission did not err in law in also refusing the applicant the education allowance for the months of August and September 2021.
50
As to the remainder, as stated in paragraph 35 above, it is necessary to analyse whether the condition of attendance was satisfied for the month of July 2021.
51
According to the Commission, in essence, that condition is no longer satisfied when the child takes the last examination, in so far as, from that time onwards, he or she can find employment and support himself or herself. That interpretation is based on the premiss, as in the case of the dependent child allowance, that the child completes his or her studies after having taken his or her last examination.
52
That premiss is, however, incorrect.
53
As has been pointed out in paragraphs 38 to 40 above in the context of the analysis of the conditions for the grant of the dependent child allowance, it is the date on which the final results were made available by the educational establishment that marks the completion of the education.
54
Thus, the considerations set out in paragraphs 38 to 44 above concerning the dependent child allowance should be applied to the analysis of the condition of attendance laid down in Article 3(1) of Annex VII to the Staff Regulations for the grant of the education allowance.
55
It follows that it is from the moment when the final results were made available by the educational establishment that the official’s child must be regarded as no longer in regular full-time attendance at an educational establishment within the meaning of Article 3(1) of Annex VII to the Staff Regulations.
56
Since the final results were made available, in the present case, on 2 July 2021, the date on which the applicant’s daughter could already download a certificate of successful completion, it must be held that, until that date, she had to be regarded as being in regular full-time attendance at the educational establishment providing her training, with the result that the applicant was eligible for the education allowance for the month of July 2021.
57
Consequently, it must be concluded that the Commission erred in law in refusing to grant the applicant the education allowance for the month of July 2021.
58
In the light of the foregoing considerations, the first contested decision must be annulled in so far as it refuses to grant the applicant the financial entitlements at issue for the month July 2021.
59
It is now necessary to determine whether the other pleas directed against the first contested decision are such as to lead to the annulment of that decision also in so far as it refuses to grant the applicant the financial entitlements at issue for August and September 2021.
(b)
The second plea, alleging breach of the principle of equal treatment
60
The applicant submits, in essence, that the Commission breached the principle of equal treatment, since he is discriminated against in comparison with an official whose child completes his or her education at the end of the second examination session.
61
The Commission disputes the applicant’s arguments.
62
According to settled case-law, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. More specifically, the requirement that situations must be comparable, for the purpose of determining whether there is a breach of the principle of equal treatment, must be assessed in the light of all the elements which characterise them (see, to that effect, judgment of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect), C‑205/20, EU:C:2022:168, paragraphs 54 and 55 and the case-law cited).
63
It must be stated that the situation of a student who passes his or her examinations at the first examination sitting differs from that of a student who will have to sit the second examination sitting, with the possibility of failing again and, consequently, not completing his or her education in the same academic year. In the first case, the student may already be regarded as having completed his or her education, whereas, in the second, the student will continue his or her education and undergo new tests before he or she can complete his or her education.
64
Consequently, the applicant, whose daughter was able to consult the final results on 2 July 2021 (see paragraph 43 above), cannot validly equate his situation with that of an official whose child still had to sit the second examination sitting after 2 July 2021.
65
The second plea in law must therefore be rejected as unfounded.
(c)
Third plea in law, alleging infringement of the principle of legal certainty and of the principle of sound administration.
66
As regards the alleged infringement of the principle of legal certainty, the applicant submits that the Commission’s interpretation of the provisions at issue creates legal uncertainty, since it automatically entails retroactive recovery of the financial entitlements at issue. The official cannot know at the time of sitting of his child’s last examination whether or not the child will pass the first examination session, since the results are communicated only at a later stage.
67
As regards the alleged infringement of the principle of sound administration, the applicant submits that his file was treated in a confused manner, since the Commission adopted in the first contested decision a position identical to that of the decision of 24 September 2021, which had, however, been annulled. In that regard, the applicant states that the Commission cannot rely on the fact that, since the decision accepting the first complaint did not adversely affect him, it was not required to state the reasons on which it was based. That confusion obliged the applicant to lodge a second complaint relating to the same subject matter as the first.
68
The Commission disputes those arguments.
69
As regards, first, the complaint alleging infringement of the principle of legal certainty, it should be noted that that complaint relates to the situation in which an official who declares that his child has completed his or her education when he or she becomes aware of his or her results is liable to suffer retroactive recovery on the basis of Article 85 of the Staff Regulations, as would have been the case, in the present instance, if the applicant had declared 2 July 2021 as the date of the end of education. In so far as infringement of the principle of legal certainty, even if it were well founded, would, in the present case, lead to the annulment of the contested decision only for July 2021 and not for August and September 2021 (see paragraph 59 above), the present complaint must be rejected as ineffective (see, to that effect, judgment of 1 June 2022, Cristescu v Commission, T‑754/20, not published, EU:T:2022:316, paragraph 171).
70
As regards, secondly, the complaint alleging infringement of the principle of sound administration, it should be noted, first of all, that, in so far as the applicant alleges a failure to state reasons for the decision upholding the first complaint and an alleged mismanagement of his file which forced him to avail himself of a lawyer to draft the first complaint, those arguments are also ineffective, in so far as they concern the legality of the decision of 24 September 2021, which is not, however, the subject of the present action.
71
Next, the fact that the administration adopts, following an annulment for infringement of the right to be heard, substantially the same solution is not contrary to the principle of sound administration, since such an infringement means only that the administrative procedure must be resumed from the stage affected by the illegality and not necessarily that the outcome of that procedure should be different.
72
Finally, and in any event, as the Commission rightly submits, the applicant has not shown that the alleged breach of the principle of sound administration had an impact on the merits of the first contested decision such as to lead to its annulment.
73
This plea must therefore be rejected as unfounded.
74
In the light of the foregoing considerations, the first contested decision must be annulled in so far as it refuses to grant the applicant the financial entitlements at issue for the month July 2021.
2.
The pleas directed against the second contested decision
75
Those pleas allege, in essence, first, infringement of the applicant’s right to receive the financial entitlements at issue and, secondly, infringement of Article 85 of the Staff Regulations.
(a)
The first plea, alleging infringement of the applicant’s right to receive the financial entitlements at issue
76
The applicant submits that, since the second contested decision is based on the first contested decision, which is unlawful for the reasons set out in the first three pleas in law directed against the first contested decision, that second decision must also be annulled.
77
The Commission replies that, since the first contested decision is lawful, the second contested decision should not be annulled.
78
Since the Court has found, in paragraph 74 above, that the first contested decision should be annulled in so far as it refuses the applicant the financial entitlements at issue for the month of July 2021, the same is true of the second contested decision. Since that monthly instalment is not, as is apparent from the analysis of the first plea directed against the first contested decision, ‘overpaid’ within the meaning of Article 85 of the Staff Regulations, it follows that the second contested decision must be annulled in so far as it concerns the financial entitlements at issue for the month of July 2021.
79
It is now necessary to determine whether the second plea directed against the second contested decision is such as to lead to the annulment of that decision also in so far as it concerns the financial entitlements at issue for the months of August and September 2021.
(b)
The second plea, alleging infringement of Article 85 of the Staff Regulations
80
The applicant claims that he had been firmly convinced that he would be able to receive the financial entitlements at issue until September 2021, in particular because, first, there is no provision or case-law confirming the PMO’s practice and, secondly, the administration had paid him EUR 3500‘in annulment’ of the decision of 24 September 2021. Furthermore, the Commission did not provide evidence either that he had actual knowledge of the irregularity of the payments of the financial entitlements in question or that that irregularity was so obvious that he could not have been unaware of it.
81
The Commission disputes the applicant’s arguments.
82
Article 85 of the Staff Regulations provides that ‘any sum overpaid shall be recovered if the recipient was aware that there was no due reason for the payment or if the fact of the overpayment was patently such that he could not have been unaware of it’. It follows from that provision 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 or she could not have been unaware of it (see judgment of 14 June 2018, Spagnolli v Commission, T‑568/16 and T‑599/16, EU:T:2018:347, paragraph 145 and the case-law cited).
83
In the present case, it should be noted that, as is apparent from the decision rejecting the second complaint and as the Commission stated at the hearing, the appointing authority intended to base the second contested decision on the second situation provided for in Article 85 of the Staff Regulations.
84
Accordingly, the Court will confine its analysis to ascertaining whether the Commission could consider that the irregularity of the overpayment was patently such that the applicant could not have been unaware of it.
85
According to settled case-law, the expression ‘patently such’ which characterises overpayment within the meaning of the first paragraph of Article 85 of the Staff Regulations does not mean that a recipient of undue payments does not need to make any effort to reflect or check. On the contrary, recovery is due 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 remuneration (see judgment of 18 June 2019, Quadri di Cardano v Commission, T‑828/17, not published, EU:T:2019:422, paragraph 47 and the case-law cited).
86
Moreover, 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 (see judgment of 18 June 2019, Quadri di Cardano v Commission, T‑828/17, not published, EU:T:2019:422, paragraph 49 and the case-law cited).
87
In the present case, it should be noted that, as is apparent from paragraph 43 above, the final results of the training undertaken by the applicant’s daughter were made available by the educational establishment on 2 July 2021, the date on which she was already able, moreover, to download a certificate of successful completion. Furthermore, it is not apparent from the documents before the Court that the applicant’s daughter continued the training in question, or any other training, after 2 July 2021, which could have justified eligibility for the financial entitlements at issue from August 2021.
88
In the light of those circumstances, the applicant could have suspected that he was no longer eligible for the financial entitlements at issue from August 2021.
89
Thus, since the irregularity of that payment was obvious, the applicant could not have been unaware of it.
90
In the light of the foregoing, the present plea must be rejected and the second contested decision annulled only in so far as it concerns the financial entitlements at issue for the month of July 2021.
B. The claim for compensation
91
The applicant claims, in essence, that he suffered material damage in the amount of EUR 2 441.84, corresponding to the amount of the lawyers’ fees incurred in drafting his first complaint, as a result of the Commission’s infringement of the principles of sound administration, legal certainty and ‘foreseeability’, since the contested decisions were identical to those annulled by the decision upholding the first complaint.
92
The Commission disputes the applicant’s arguments.
93
It should be borne in mind that the lawyers’ fees incurred during the pre-litigation procedure, save in exceptional circumstances, cannot constitute recoverable material damage in so far as recourse to a lawyer is not required by the rules of the Staff Regulations at the pre-litigation stage and is therefore the personal responsibility of the official concerned alone. There is nothing in the file in the present case to establish the existence of such exceptional circumstances (see, to that effect, judgment of 23 February 2022, OA v EESC, T‑671/20, not published, EU:T:2022:82, paragraph 58 and the case-law cited).
94
Furthermore, as has been pointed out in paragraph 71 above, the fact that the administration adopts, following an annulment for infringement of the right to be heard, a substantially identical solution is not contrary to the principle of sound administration or to the principle of legal certainty or to the ‘principle of foreseeability’ on which the applicant has not in any way argued, and cannot therefore constitute an unlawful act giving rise to non-contractual liability on the part of the European Union.
95
Accordingly, the applicant’s claim for compensation for alleged material damage must be rejected as unfounded.
96
In the light of all the foregoing, the contested decisions must be annulled in so far as they concern the financial entitlements at issue for the month of July 2021 and the remainder of the action must be dismissed.
IV. Costs
97
Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
98
Since the Commission has essentially been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Fifth Chamber, Extended Composition)
hereby:
1.
Orders that the decisions of the Office for the Administration and Payment of Individual Entitlements (PMO) of the European Commission of 11 May 2022 removing the entitlement of VA to receive, with effect from 1 July 2021, dependent child and education allowances and the tax abatement relating to those allowances, and of 13 June 2022 announcing the recovery, pursuant to Article 85 of the Staff Regulations of Officials of the European Union, of those financial entitlements are annulled in so far as they concern those entitlements for the month of July 2021;
2.
Dismisses the action as to the remainder;
3.
Orders the Commission to bear its own costs and to pay those incurred by VA.
Papasavvas
Svenningsen
Laitenberger
Martín y Pérez de Nanclares
Stancu
Delivered in open court in Luxembourg on 5 June 2024.
[Signatures]
(
*1
)	Language of the proceedings: French.