62013FJ0028_EN
Parties
Grounds
Operative part
Parties
In Case F‑28/13,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
José Manuel López Cejudo, official of the European Commission, residing in Brussels (Belgium), represented by É. Boigelot, lawyer,
applicant,
v
European Commission,
represented by J. Currall and C. Ehrbar, acting as Agents,
defendant,
THE CIVIL SERVICE TRIBUNAL
(Second Chamber)
composed of M.I. Rofes i Pujol, President, K. Bradley and J. Svenningsen (Rapporteur), Judges,
Registrar: X. Lopez Bancalari, Administrator,
having regard to the written procedure and further to the hearing on 30 January 2014,
gives the following
Judgment
Grounds
1. By application lodged at the Registry of the Civil Service Tribunal on 27 March 2013, Mr López Cejudo brought the present action, primarily, for annulment of the note of 6 July 2012 by which the appointing authority of the European Commission (‘the appointing authority’) informed the applicant of its decision to recover the daily subsistence allowance, together with interest, which the latter had received in 1997 and 1998, and also for annulment of the decision of 17 December 2012 by which the appointing authority rejected the applicant’s complaint with regard to that allowance (‘the decision rejecting the complaint’).
Legal context
2. Article 20 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides that ‘[a]n official shall reside either in the place where he is employed or at no greater distance therefrom as is compatible with the proper performance of his duties’.
3. Article 5(4) of Annex VII to the Staff Regulations provides:
‘An official who is entitled to the household allowance and does not settle with his family at the place where he is employed shall receive only half the allowance to which he would otherwise be entitled; the second half shall be paid when his family settles at the place where he is employed, provided that it does so within the periods laid down in Article 9(3) [of Annex VII] …’
4. Article 9(1) of Annex VII to the Staff Regulations provides:
‘The expenses incurred in respect of removal of furniture … shall be reimbursed to an official who is obliged to change his place of residence in order to comply with Article 20 of the Staff Regulations and who has not been reimbursed in respect of the same expenses from another source. Such reimbursement shall not exceed the amount of an estimate approved in advance. …’
5. Article 10 of Annex VII to the Staff Regulations, in the version applicable to the dispute, provides:
‘1. Where an official furnishes evidence that a change in the place of residence is required in order to comply with Article 20 of the Staff Regulations, such official shall be entitled for a period specified in paragraph 2 of this Article to a subsistence allowance per calendar day …
2. The period in respect of which the daily subsistence allowance is granted shall be as follows:
…
(b) in the case of an official who is entitled to the household allowance: 180 days …
…
In no case shall the daily subsistence allowance be granted beyond the date on which the official removes in order to satisfy the requirements of Article 20 of the Staff Regulations.’
6. Article 85 of the Staff Regulations, in the version applicable at the time when the applicant was in receipt of the daily subsistence allowance at issue, provided:
‘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.’
7. In the version applicable at the time of the adoption of the note of 6 July 2012, Article 85 contained a second paragraph, which read as follows:
‘The request for recovery must be made no later than five years from the date on which the sum was paid. Where the Appointing Authority is able to establish that the recipient deliberately misled the administration with a view to obtaining the sum concerned, the request for recovery shall not be invalidated even if this period has elapsed.’
Background to the dispute
8. Having entered the service of the Commission in 1986, from 1 September 1990 the applicant performed his duties in the service of the European Communities at the Court of Auditors in Luxembourg (Luxembourg). He was transferred, with effect from 1 September 1997, to the Revenue Management unit of the Commission’s Directorate-General (DG) for Budget in Brussels (Belgium). The applicant was subsequently transferred to the Finance and Contracts section of the Commission Delegation to the Federal Republic of Brazil in 2002 and, from 2007, he again performed the duties of administrator (AD) in grade AD 13 at DG for Budget in Brussels.
9. On 9 July 1997 the applicant signed a lease on an unfurnished apartment with five bedrooms located in Etterbeek (Belgium) (‘the Brussels apartment’). That lease was granted for a term of nine years and took effect on 1 August 1997. It is clear from the terms of the lease, inter alia from Article 13 concerning the intended purpose of the premises and from Article 14 concerning choice of permanent address and civil status, that the lessee, the applicant in this case, declared that he was leasing the property for use purely as a private dwelling and as his main residence, and he also declared that he designated the leased apartment his permanent address throughout the term of the lease.
10. The applicant also let, with effect from 1 August 1997, the house he owned in Schuttrange (Luxembourg), which he had previously occupied with his family (‘the Luxembourg house’), in the present case under a lease concluded on 11 July 1997 with two lessees who were a couple.
11. On 1 September 1997 the applicant declared on the general form for establishing his rights under the Staff Regulations that his new address at his place of employment was the Brussels apartment. On that form he also declared to his administration that his wife and four children were still residing in Luxembourg, at the Luxembourg house.
12. However, on the form requesting the installation allowance provided for in Article 5 of Annex VII to the Staff Regulations, the form which at that time was also used by the administration to establish entitlement to the daily subsistence allowance, the applicant declared on 9 September 1997 that he, together with his family, had established his permanent address in Brussels. He also declared in that context that he was aware of the rules concerned, namely Article 5 of Annex VII to the Staff Regulations.
13. In support of that request the applicant produced a copy of the lease on the Brussels apartment and did not produce any application for residence permits for the members of his family. The appointing authority, under Article 5(4) of Annex VII to the Staff Regulations, therefore paid him only half the installation allowance, that is to say one month’s salary.
14. Following a request submitted on 16 March 1998, to which he had attached a copy of the application for residence permits submitted in Belgium for his spouse and their children, which provided evidence that his family had settled at his new place of employment, the second half of the installation allowance was paid to him under Article 5(4) of Annex VII to the Staff Regulations.
15. Furthermore, also on 16 March 1998, the applicant requested and obtained reimbursement of his removal costs, producing an invoice drawn up on 15 March 1998 by a Luxembourg removal company. According to what was stated by the Luxembourg company the applicant’s removal from Luxembourg to Brussels had taken place on 2 March 1998. In that regard, the applicant declared, on the form for ‘payment of removal costs’, that he had ‘transferred, with the members of [his] family [his] permanent address from Luxembourg to [his] place of employment … on 2 March 1998’.
16. Besides the two months’ salary by way of the installation allowance paid in two instalments and reimbursement of his removal costs, the applicant also obtained payment of the daily subsistence allowance under Article 10 of Annex VII to the Staff Regulations and did so for the maximum period of 180 days following his return to duties at the Commission (‘the daily subsistence allowance at issue’), that is to say, from 1 September 1997 to 1 March 1998, the administration being of the view in that regard that his family did not join him at his new place of employment until 2 March 1998, the date he had indicated on the form for the payment of removal costs.
17. On 19 July 2007, the European Anti-Fraud Office (OLAF) received, via the DG for External Relations, a letter addressed to that DG by a Member of the European Parliament. That letter was accompanied by statements and numerous documents, provided inter alia by the applicant’s ex-wife. OLAF then opened an investigation concerning in particular the daily subsistence allowance at issue and certain medical expenses that had been reimbursed by the Joint Sickness Insurance Scheme (‘the JSIS’).
18. OLAF’s investigation also covered other accusations which were made by the applicant’s ex-wife but are not at issue in the present case.
19. The applicant was informed by OLAF that an internal investigation had been opened and in that connection he was questioned by that office on 28 March 2008 and 6 May 2010, inter alia about the date on which he actually moved from Luxembourg to Brussels, the school attendance of his children in Brussels from the start of the school year in 1997 and the invoice dated 15 March 1998 relating to his move. On that occasion the applicant stated in particular that the removal of his furniture, which had allegedly remained in Luxembourg, did not take place until March 1998 ‘so that he could thereby claim in good faith … the daily subsistence allowance’.
20. On 30 March 2012 OLAF notified the applicant that the investigation was closed. The same day, that office also sent the Commission the recommendations and final report of its internal investigation (‘the OLAF report’). In the section of that report entitled ‘Findings and recommendations’, OLAF concluded that the applicant had infringed the obligations incumbent on him as an official in so far as it had been established that, in order to receive the daily subsistence allowance provided for by Article 10 of Annex VII to the Staff Regulations, he had artificially given the impression that his move from Luxembourg to Brussels, which actually took place in August 1997, had taken place in March 1998.
21. OLAF stated in that regard that it was also probable that in order to make his declaration more credible the applicant had requested and obtained a post-dated invoice from the removal company. On the basis of that, OLAF recommended to the appointing authority that it should take steps to recover the amount of EUR 7 902, corresponding, first, to the daily subsistence allowance unduly paid from 1 September 1997 to 1 March 1998, namely at that time BF 223 080 (EUR 5 530), and, secondly, to recover EUR 2 372, corresponding to reimbursement for spectacle frames without corrective lenses. The recommendation also advocated carrying out an audit of claims for reimbursement of medical expenses made by the applicant during the period 2002-2007 when he was working at the Commission delegation in Brazil.
22. By the note of 6 July 2012 (‘the contested decision’), the Commission informed the applicant that, in the light of OLAF’s recommendation, it needed to recover the sum of EUR 7 902. An initial amount of EUR 5 530 was to be deducted from his salary for the month of June 2012, and EUR 3 822.80 in interest on that amount was due to be deducted from his salary for July 2012, but was not finally deducted until October 2012. A second amount of EUR 2 372, corresponding to undue reimbursements of medical expenses would be deducted from his salary for August 2012, together with EUR 699.20 in interest on that amount.
23. On 12 September 2012 the applicant submitted a complaint under Article 90(2) of the Staff Regulations, in which he requested the appointing authority to annul the note of 6 July 2012 and the deductions from his salary for the months of June to September 2012, and the note of 10 July 2012 from the Office for the Administration and Payment of Individual Entitlements (PMO) seeking deduction of EUR 3 071.20 from his salary for August 2012 and the note of 20 July 2012 from PMO providing for the deduction of EUR 3 822.80 in interest from his salary for October 2012. As regards in particular the daily subsistence allowance at issue, the applicant contended that he had acted in good faith in thinking that entitlement to that allowance continued so long as removal of his furniture had not actually taken place in full. Furthermore, according to the applicant, ‘no malicious intent could be alleged against him’ since ‘the rules on this matter — which had been explained to him in a way which he did not understand — were, in his view, very technical and difficult to comprehend’. Moreover, the applicant claimed that since he had not deliberately misled the administration the five-year limitation period provided for in Article 85 of the Staff Regulations was effective against the appointing authority.
24. By decision of 17 December 2012, the appointing authority found, with regard to the part of the complaint relating to reimbursement of medical expenses, that it was not in a position to establish that the applicant had deliberately misled it in order to receive reimbursement for frames without corrective lenses. Hence, in that regard the appointing authority decided, pursuant to the first sentence of the second paragraph of Article 85 of the Staff Regulations, to waive recovery of the overpayment in respect of those medical expenses. However, as regards the daily subsistence allowance at issue it considered that the applicant had deliberately misled it and so, under the second sentence of the second paragraph of Article 85 of the Staff Regulations, the five-year limitation period was not effective against it. Considering moreover that the applicant had moved to Brussels with his family in August 1997 and therefore no longer fulfilled the conditions for receiving that allowance, the appointing authority dismissed the complaint in that regard.
Procedure and forms of order sought
25. The applicant claims that the Tribunal should:
– annul the note of 6 July 2012;
– annul the deductions from his salary made in June 2012 (EUR 5 530), August 2012 (EUR 1 535.60), September (EUR 1 535.60) and October 2012 (EUR 3 822.80) and any other deductions made in implementation of the contested decision
– annul the PMO’s note of 10 July 2012;
– annul the PMO’s note of 20 July 2012;
– annul in part the decision rejecting the complaint in so far as it rejects the applicant’s complaint concerning the daily subsistence allowance and the default interest at issue;
– order the defendant to pay default interest from June 2012, on EUR 5 530, from August 2012 on an ini tial amount of EUR 1 535.60, from September 2012 on an additional amount of EUR 1 535.60 and from October 2012 on EUR 3 822.80, until such time as those amounts have been repaid, taking into account the fact that the sum of EUR 3 071.20, repaid in the salary for January 2013 in default interest is no longer payable as from that repayment;
– order the Commission to pay all the costs.
26. The Commission contends that the Tribunal should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
Law
1. The subject-matter of the action
27. As a preliminary point, the Tribunal finds that, in so far as the appointing authority upheld in part the applicant’s claim regarding reimbursement of medical expenses and the applicant obtained in January 2013 reimbursement of the deductions that had been made from his salary for the months of August and September 2012 in connection with medical expenses, the forms of order sought in the action concerning those medical expenses are devoid of purpose, as was confirmed moreover by the applicant at the hearing.
2. The claim for annulment
28. As regards the claim for annulment, it should be noted that it relates in essence, so far as the daily subsistence allowance at issue is concerned, to the note of 6 July 2012, the deductions from salary made in that regard in June, August, September and October 2012, and the decision rejecting the complaint.
29. In that regard, in accordance with the principle of economy of procedure, the judicature may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where it finds that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made. That may, in particular, be the case where it finds that the decision rejecting the complaint, in some cases because it is implied, is purely confirmatory of the decision which is the subject of the complaint and that, therefore, the annulment of the first decision would have no effect on the legal position of the person concerned distinct from that which follows from the annulment of the second (judgment in Adjemian and Others
v Commission, T‑325/09 P, EU:T:2011:506, paragraph 33 and the case-law cited).
30. However, in the present case, in so far as, first, the deductions from salary were made in pursuance of the note of 6 July 2012, and, secondly, the decision rejecting the complaint contains a review of the applicant’s situation based on new matters of law, it must be held that the claims for annulment relate to the note of 6 July 2012 and the decision rejecting the complaint.
31. The Tribunal observes that the applicant ultimately puts forward four pleas in support of his claims for annulment: breach of the obligation to state reasons, laid down in the second paragraph of Article 25 of the Staff Regulations; breach of Article 10 of Annex VII to the Staff Regulations; breach of Article 85 of the Staff Regulations and of the reasonable time principle in the action for recovery of overpayments; and breach of the principles of protection of legitimate expectations and sound administration.
First plea: breach of the obligation to state reasons
32. The applicant criticises the Commission for not informing him of the content of the OLAF report, either at the time the note of 6 July 2012 was adopted or at the complaint stage. The Commission merely made reference to the content of that report in the note of 6 July 2012 and in the decision rejecting the complaint, without informing the applicant of the substantive evidence against him. Thus, since, he argues, he was not able to acquaint himself properly with the content of that report, which formed the basis for the adoption of the decisions to recover the daily subsistence allowance at issue, the note of 6 July 2012 and the decision rejecting the complaint are vitiated by a failure to state reasons.
33. The Commission, whilst conceding that the OLAF report was not communicated to the applicant until 1 February 2013, contends that the note of 6 July 2012 was drawn up in a context with which the applicant was very familiar, in particular following his two appearances before OLAF. The legal points raised by the applicant in his complaint, inter alia the fact that he acted in good faith and that he was entitled to the allowance so long as not all his furniture had actually been removed, demonstrate that he fully understood the appointing authority’s evidence against him. In any event, the Commission provided appropriate reasons at the stage of the response to the complaint, reasons which are now regarded as being the same as the reasons given in the note of 6 July 2012 against which that complaint was made.
34. In that regard, the Tribunal notes that the purpose of the requirement laid down in the second paragraph of Article 296 TFEU, and also contained in the second paragraph of Article 25 of the Staff Regulations, is to enable the Tribunal to review the legality of contested decisions and to provide the officials concerned with sufficient information to assess whether those decisions are well founded or subject to a defect enabling their legality to be challenged. It follows that the statement of reasons must in principle be notified to the person concerned at the same time as the decision adversely affecting him (see judgments in Michel
v Parliament, 195/80, EU:C:1981:284, paragraph 22; Neirinck
v Commission, C‑17/07 P, EU:C:2008:134, paragraph 50; and Tzirani
v Commission, F‑46/11, EU:F:2013:115, paragraphs 138 to 140).
35. The Tribunal finds that the note of 6 July 2012 gives very few reasons, since it refers to OLAF’s recommendations of 30 March 2012 in order to justify recovery of the daily subsistence allowance at issue, and that without prior communication to the applicant of the content of the OLAF report that note contained a relatively brief statement of reasons.
36. However, first, the appointing authority provided an adequate statement of reasons in the decision rejecting the complaint. That decision confirms the note of 6 July 2012 and states the reasons supporting that decision. In that situation, the lawfulness of the initial measure adversely affecting him must be examined taking into consideration the statement of reasons contained in the decision rejecting the complaint, those reasons being considered to be the reasons for that measure (judgment in Infante Garcia-Consuegra
v Commission, F‑10/12, EU:F:2013:38, paragraph 14 and the case-law cited).
37. Secondly and in any event, a decision contains an adequate statement of grounds if, as in the present case, the decision which is the subject-matter of the action was taken in circumstances known to the official concerned, such as those of the applicant’s various appearances before OLAF, and enables him to be aware of the scope of the decision taken in his regard (judgment in Hecq
v Commission, C‑116/88, EU:C:1990:98, paragraph 26, and order in Marcuccio
v Commission, F‑118/11, EU:F:2014:23, paragraph 73).
38. The Tribunal considers moreover that the elaborate nature of the applicant’s complaint reveals his understanding of the reasons why the Commission had decided, by the note of 6 July 2012, to take steps to recover the daily subsistence allowance at issue. Hence, he cannot claim that he did not understand the reasons underlying the appointing authority’s decision. Furthermore, the fact that he did not receive the OLAF report until 1 February 2013 cannot therefore call into question the fact that, when he became aware of the note of 6 July 2012, the applicant did understand the reasons why his institution was taking steps to recover the sums at issue in the present case.
39. Consequently, the first plea alleging a breach of the obligation to state reasons must be rejected as unfounded.
Second plea: breach of Article 10 of Annex VII to the Staff Regulations
40. In support of this plea, the applicant claims in essence that he was entitled to receive the daily subsistence allowance at issue so long as all his furniture had not actually and definitively been removed from Luxembourg to his new place of employment. Thus, the fact that his wife and children had moved into the Brussels apartment, which had been leased from August 1997, and the fact that their children had attended school in Brussels from the beginning of the 1997/1998 school year are not sufficient to deprive him of his entitlement to receive the daily subsistence allowance provided for in Article 10 of Annex VII to the Staff Regulations.
41. Since not all of his furniture had actually been removed the applicant considers that the appointing authority cannot attribute to him an overhasty intention to settle definitively in the Brussels apartment, because until 2 March 1998 that apartment was, on the contrary, only a temporary residence, which was not very comfortable since it contained only basic furniture, such as mattresses, tables and chairs, and during the period covered by the daily subsistence allowance he took advantage of the return trips he made to Luxembourg to deal with problems in connection with the letting of the Luxembourg house gradually to transport a number of boxes by car to his new place of employment. Moreover, even though the case-law developed on Article 10 of Annex VII to the Staff Regulations appears to make the grant of a daily subsistence allowance conditional upon the recipient having to maintain two residences temporarily, the applicant contends that the fact that he had not kept his previous residence in Luxembourg did not, in his case, preclude the grant of the daily subsistence allowance at issue. Lastly, he alleges that the appointing authority committed manifest errors of assessment.
42. In that regard, the Tribunal notes that, in accordance with Article 71 of the Staff Regulations, which states inter alia that an official is entitled to reimbursement of expenses incurred by him on taking up appointment, transfer or leaving the service, Article 10(1) of Annex VII to the Staff Regulations provides for the payment of the daily subsistence allowance to ‘an official [who] furnishes evidence that a change in the place of residence is required in order to comply with Article 20 of the Staff Regulations’. Article 20 of the Staff Regulations requires an official to reside either in the place where he is employed or at no greater distance therefrom than is compatible with the proper performance of his duties (judgment in Benzler
v Commission, T‑63/91, EU:T:1992:88, paragraph 19).
43. In a situation such as the applicant’s, the daily subsistence allowance is intended essentially to compensate the official for the expense and inconvenience occasioned by the need to change residence or to establish provisional residence at his new place of employment. That purpose was constantly emphasised by the case-law at the material time (see, inter alia, judgments in Mouzourakis
v Parliament, 280/85, EU:C:1987:66, paragraph 9; Benzler
v Commission, EU:T:1992:88, paragraph 20; and Baniel-Kubinova and Others
v Parliament, F‑131/07, EU:F:2008:159, paragraph 17).
44. Thus, the daily subsistence allowance is granted subject to two conditions: first, a change in the place of residence must be needed in order to comply with Article 20 of the Staff Regulations and, second, the allowance must cover the expense and inconvenience occasioned by the need to travel and establish a provisional residence at the place of employment. Since those two conditions are cumulative, the daily subsistence allowance cannot, in particular, be paid to an official who does not prove that he has been exposed to such expense or inconvenience (see judgment in Infante Garcia-Consuegra
v Commission, EU:F:2013:38, paragraph 29 and the case-law cited).
45. Furthermore, it has also been held that the daily subsistence allowance is granted inter alia in order to enable recipients to find accommodation suitable to their requirements in the place of employment and to make arrangements with regard to their previous residence, for example by letting or subletting it (order in Collins
v Committee of the Regions, T‑132/97, EU:T:1998:193, paragraph 43).
46. Although entitlement to the daily subsistence allowance arises even before the official concerned has moved residence to his place, or new place, of employment (judgment in Baniel-Kubinova and Others
v Parliament, EU:F:2008:159, paragraph 24), Article 10(2), third subparagraph, of Annex VII to the Staff Regulations provides that in no case is that allowance to be granted beyond the date on which the official removes in order to satisfy the requirements of Article 20 of the Staff Regulations.
47. Thus, the removal date constitutes a cut-off date automatically putting an end to payment of the daily subsistence allowance. However, that ground for cessation of entitlement to that allowance does not alter the fact that, in order to receive that allowance the official concerned must at least fulfil the two conditions set out in paragraph 44 above. In other words, although the legislature considered that, as from the removal date, the official concerned no longer had to incur the expense and inconvenience occasioned by the need to change residence or to establish provisional residence at his place of employment, the fact remains that the second condition set out in paragraph 44 may be deemed not, or no longer, to be fulfilled, even in the absence of the actual removal of all the furniture of the official concerned.
48. In the present case, the Tribunal notes that the applicant had let the Luxembourg house from 1 August 1997 and that he provides no evidence that he maintained any other residence in Luxembourg. Nor, moreover, does he claim to have continued residing in that Member State, since he says on the contrary, inter alia in his application and at the hearing, that he settled in Brussels with effect from 1 September 1997 and that he had not retained his previous residence. The only nuance he adds to this is, first, that he ‘himself’ did not take up residence ‘definitively’ on that date. Second, he still left personal effects and furniture in the garage of the Luxembourg house, which he gradually moved during the trips he made to Luxembourg in order to sort out problems concerning the letting of that house, such as problems with the heating.
49. Furthermore, as regards the members of his family, he acknowledges that they settled in the Brussels apartment, which was leased from August 1997, and that his children attended school in Brussels from the beginning of the 1997/1998 school year. At the hearing, the applicant argued in that regard that it was necessary to distinguish between the fact of choosing to have his permanent address or residence in Brussels and the fact of transferring his residence to that new place of employment. In reality, together with his family, he established his permanent address in Brussels from August 1997. However, he contends that, since not all his furniture had actually been moved it must be held that he had not yet transferred his residence.
50. In that regard, the Tribunal considers that, in the light of the judgment in Ineichen
v Commission, T‑293/01, EU:T:2003:55, paragraph 64 and the case-law cited, all that evidence shows on the contrary that the applicant moved his centre of interests to his new place of employment with effect from 1 September 1997 and intended to make that place stable and permanent.
51. Thus, the applicant did not retain his previous residence nor has he demonstrated other expenses connected with an allegedly temporary situation. Consequently, in view of the wording of Article 10 of Annex VII to the Staff Regulations in the version applicable ratione temporis, as interpreted by case-law, there was already no justification for granting the applicant the daily subsistence allowance for that reason (see judgment in Lozano Palacios
v Commission, T‑33/95, EU:T:1996:196, paragraph 55 and the case-law cited).
52. The only argument relied on by the applicant in order to demonstrate that the transfer of his personal and family interests to Brussels had not been completed by the date on which he took up his duties, namely 1 September 1997, is that, as he says, not all of his furniture had yet been moved to that new place of employment, so that he could not be considered to have transferred his residence.
53. In that regard, the applicant admits that the Brussels apartment, with five bedrooms, had been equipped with basic furniture, such as tables, mattresses and bedding. He had therefore transferred his residence to his new place of employment with effect from 1 September 1997. Furthermore, the applicant does not state what other equipment, allegedly remaining in Luxembourg, he and his family would have needed in order for it to be considered that he had finally taken up residence at his new place of employment.
54. The Tribunal considers that the only evidence that some of the applicant’s furniture had actually been removed from Luxembourg to Brussels is, ultimately, a certificate to the effect that furniture and personal effects had been received in good condition together with an invoice, both of which were formally dated 15 March 1998, the first stating that a removal took place on 2 March 1998 from the Luxembourg house, the address of which was specified, to Brussels, although no specific address was given.
55. However, on the basis of all the evidence in the documents in the case, it appears that, irrespective of whether removal of some furniture that had allegedly remained in Luxembourg did actually take place on 2 March 1998, the Commission was entitled to state that by 1 September 1997 the applicant had in any event already transferred his centre of interests, on a lasting and permanent basis, to his new place of employment and had therefore definitively taken up residence there for the purposes of Article 10 of Annex VII to Staff Regulations. For that reason, he no longer fulfilled the second condition referred to in paragraph 44 above.
56. It follows from all of the foregoing considerations that the second plea must be rejected as unfounded.
Third plea: breach of Article 85 of the Staff Regulations
57. The third plea, in the light of the applicant’s pleadings, comprises in essence two parts: first, the absence of any intention on the part of the applicant to mislead the administration within the meaning of Article 85 of the Staff Regulations and, secondly, breach of the reasonable time principle in the action for recovery of overpayments.
First part: the absence of any intention on the part of the applicant to mislead the administration within the meaning of Article 85 of the Staff Regulations
58. The applicant contends that in deciding to recover the daily subsistence allowance at issue the appointing authority was in breach of Article 85 of the Staff Regulations. He claims that he did not deliberately mislead his administration or have any intention of doing so. Consequently, under the first sentence of the second paragraph of Article 85 of the Staff Regulations, the appointing authority was entitled to recover the daily subsistence allowance at issue only within a period of five years after the payment of that allowance. He contends, in particular, that merely misleading the administration by accident is not sufficient, since there must be a genuine intention to deceive it, which there was not in the present case.
59. The Commission for its part contends that the applicant deliberately misled it over the date on which he took up residence at his new place of employment. By artificially dividing his request for the installation allowance into two separate requests the applicant gave it the impression that his family had not yet taken up residence in the Brussels apartment so that he could, under Article 5(4) of Annex VII to the Staff Regulations, receive half the allowance. Then, when applying for payment of the second half of the allowance, after the alleged removal of his furniture from Luxembourg to Brussels on 2 March 1998, the applicant stated, providing an application for residence permits for the members of his family in support, that his family did not join him at his place of employment until that date, a statement that was contradicted by the applicant himself. The Commission also contends that the applicant produced the invoice post-dated to 15 March 1998 in order to regularise, seemingly, payment of the daily subsistence allowance over the maximum period of 180 days provided for in Article 10 of Annex VII to the Staff Regulations.
60. As a preliminary point, the Tribunal notes that the second paragraph of Article 85 of the Staff Regulations, which was inserted after the material time, is applicable in the present case in so far as the legal proceedings concerning the irregularity at issue were instituted after the entry into force of that new provision (see, by analogy, with regard to legal proceedings concerning irregularities detrimental to the European Union’s financial interests, judgment in Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others, C‑278/07 to C‑280/07, EU:C:2009:38, paragraphs 29 and 34). Furthermore, in the present case the Commission applied that new provision since it agreed not to recover sums reimbursed without justification in respect of medical expenses on the ground that it was not in a position to establish that the applicant had deliberately misled it regarding those expenses, as required by that provision.
61. The Tribunal also notes that, according to the first paragraph of Article 85 of the Staff Regulations, 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 (judgments in Berghmans
v Commission, 142/78, EU:C:1979:233, paragraph 9, and Ritto
v Commission, F‑18/08, EU:F:2008:110, paragraph 29).
62. In that regard, it is clear from the above finding that the applicant had definitively taken up residence at his new place of employment on 1 September 1997, that in such circumstances he was not entitled to receive the daily subsistence allowance under Article 10 of Annex VII to the Staff Regulations, and that he could not have been unaware of this fact since, according to case-law, any normally diligent official is deemed to be familiar with the Staff Regulations (judgments in Connolly
v Commission, T‑34/96 and T‑163/96, EU:T:1999:102, paragraph 168; CR
v Parliament, F‑128/12, EU:F:2014:38, paragraph 45; see also, concerning the expatriation allowance, judgment in Gouvras
v Commission, T‑180/02 and T‑113/03, EU:T:2004:238, paragraph 111).
63. Regarding the applicant’s arguments designed to demonstrate that the provisions of Article 10 of Annex VII to the Staff Regulations are ‘manifestly’ complex, that the irregularity was not so evident since it escaped the notice of the administration, and that he himself is not a specialist in the law relating to the Staff Regulations, the Tribunal can only hold that, in view of the function group to which he belonged, his high grade, his high seniority and his considerable experience, both in budget matters and in matters of changing places of employment, the applicant, who is well versed in those matters, cannot reasonably claim that such rules appeared to him to be complex and that he was not in a position to make the necessary checks. Moreover, the situation of an administration responsible for the payment of thousands of salaries and allowance of all kinds cannot be compared to that of an official who has a personal interest in checking the payments made to him every month (see, to that effect, judgment in F
v Commission, T‑324/04, EU:T:2007:140, paragraphs 144 and 145 and the case-law cited).
64. The conditions of the first paragraph of Article 85 of the Staff Regulations, permitting recovery of overpayments, were therefore met in the present case.
65. With regard to the conditions for recovering overpayments, the first sentence of the second paragraph of Article 85 of the Staff Regulations provides that the request for recovery is to be made no later than five years from the date on which the sum was paid. Thus, as regards the daily subsistence allowance at issue paid monthly, its recovery should in principle have taken place within five years of the payments at issue. It is clear however from the second sentence of the second paragraph of Article 85, relied on by the Commission in the present case, that where the appointing authority is able to establish that the recipient deliberately misled the administration with a view to obtaining the sum concerned the request for recovery will not be invalidated even if this period has elapsed.
66. In that regard, it should be noted that, generally, the objective pursued by Article 85 of the Staff Regulations is to protect the financial interests of the European Union in the specific context of relations between the institutions of the Union and their staff, that is to say, persons who are bound to those institutions by the specific duty of loyalty as now formally set out in Article 11 of the Staff Regulations, which requires, in particular, that an official is to conduct himself ‘solely with the interests of the Union in mind’ and carry out the duties assigned to him ‘in keeping with his duty of loyalty to the Union’ (judgment in CR
v Parliament, EU:F:2014:38, paragraph 61).
67. As regards the second paragraph of Article 85 of the Staff Regulations, the two sentences it contains distinguish between two different situations. The first sentence covers the situation in which the staff member unduly received a payment although he may have given his administration evidence enabling the latter to detect that there was no due reason for the payment. In such a situation, where the appointing authority may have been misled only by chance, the EU legislature took the view that at the end of a period of five years following the payment the appointing authority can no longer seek recovery of any undue benefit. The second sentence, on the other hand, covers the situation in which the staff member, in a move to obtain a payment to which he is not entitled, deliberately misleads the appointing authority, inter alia either by failing to provide it with all the information concerning his personal situation or by omitting to bring to its notice changes that have taken place in his personal situation, or by taking steps to make it more difficult for the appointing authority to detect the undue nature of the payment he received, including by supplying incorrect or inaccurate information.
68. It is in the light of those considerations that it is necessary to examine whether, in the present case, the Commission was in a position to establish that the applicant had deliberately misled it, within the meaning of the second sentence of the second paragraph of Article 85 of the Staff Regulations, in order to obtain the daily subsistence allowance at issue.
69. In that regard, it should be noted that the daily subsistence allowance is a benefit that is paid over a period of time. Consequently, the person concerned must fulfil the conditions for entitlement to it not only at the time of his initial request but also throughout the period covered by the benefit. Thus he is required, inter alia under the duty of loyalty, to inform his administration of any change likely to affect his entitlement to the benefit in question.
70. In the present case, having let the Luxembourg house and leased the Brussels apartment, the applicant stated initially, that is to say on 1 September 1997, on the form for establishing his entitlements under the Staff Regulations in general, that his family had not yet joined him at his new place of employment although, subsequently, both in his application and at the hearing, he confirmed that his children had in fact attended school in Brussels from the beginning of the 1997/1998 school year and that by then he, together with his wife and children, had already settled in that apartment, although it was, as he said, only furnished in a spartan manner. The Tribunal notes moreover that when he filled in that form the applicant had begun by giving Brussels as the place of residence of his children, but then changed his mind and wrote in the same space ‘Luxembourg’.
71. Although he subsequently stated on 9 September 1997 in the form for the installation allowance, which was also used by the administration to establish entitlement to the daily subsistence allowance, that he, together with his family, had established his permanent address in Brussels, the Tribunal notes that in the same form he stated that he ‘was aware of the rules concerned’, namely Article 20 of the Staff Regulations and Article 5 of Annex VII to those regulations.
72. Article 5(4) of Annex VII to the Staff Regulations provides that ‘[a]n official who is entitled to the household allowance and does not settle with his family at the place where he is employed shall receive only half the allowance to which he would otherwise be entitled’. Thus, by making two separate requests for the installation allowance, the first on 9 September 1997 enabling him to obtain one month’s salary by producing his lease agreement and the second in March 1998 enabling him to obtain payment of the second half of that allowance by producing the application for residence permits for the members of his family, the applicant sought to give his administration the impression, in line with what he had initially stated on 1 September 1997, that his family had not yet joined him at his new place of employment, which was incorrect, and that the family did not join him until 2 March 1998, which was also incorrect. Thus, he deliberately misled his administration by encouraging the impression that he continued to fulfil the conditions for obtaining the daily subsistence allowance at issue.
73. Since the applicant confirmed, in his application and at the hearing, that his family joined him in Brussels from 1 September 1997, he was not in the situation referred to in Article 5(4) of Annex VII to the Staff Regulations. Thus, he should have submitted a single request for the whole of the installation allowance, supplying his lease agreement and an application for a residence permit in September. In that case, the administration would have given him that allowance in a single payment and would not have paid him the daily subsistence allowance. Hence, by requesting and obtaining only half the installation allowance under Article 5(4) of Annex VII to the Staff Regulations, the applicant, in order to secure payment of the daily subsistence allowance at issue, deliberately misled his administration over the date on which his family actually joined him at his new place of employment.
74. At the hearing, the applicant did state that he had told his administration on 9 September 1997 that his family had joined him at his new place of employment, so he cannot be accused of hiding that fact from it. However, when questioned about this he replied that he had not challenged the payment by the appointing authority in September 1997 of only one month’s salary under Article 5(4) of Annex VII, which does indeed confirm that the applicant had taken care, by dividing his request for an installation allowance into two requests, to give to his administration the impression that his statements that his family did not take up residence until 2 March 1998 — the day after the last date for payment of the daily subsistence allowance provided for in his case — were true.
75. Moreover, as the Commission rightly argues, by stating on 16 March 1998, in the form for reimbursement of his removal expenses, that he had ‘transferred, with the members of [his] family [his] permanent address from Luxembourg to [his] place of employment … on 2 March 1998’, the applicant again implied to his administration that his family had not joined him until that date, which did not correspond to the facts as recounted, inter alia, at the hearing. He also provided, as he himself acknowledges, ‘so that he could thereby claim in good faith … the daily subsistence allowance’, an invoice relating to a move which allegedly took place on 2 March 1998, the authenticity of which was called into question both by OLAF and by the Commission.
76. It is clear from the above considerations that, both in connection with his two requests for the installation allowance and with his request for reimbursement of his removal costs, the applicant deliberately provided his administration with incorrect information regarding the date on which his family took up residence at his new place of employment and proceeded in such a way that the administration was misled by the applicant’s actions and was therefore unable to detect itself that payment of the daily subsistence allowance at issue was undue.
77. As regards the applicant’s alleged good faith, which he sought to substantiate by not effecting his actual move until 2 March 1998, the day after the end of the period covered by the daily subsistence allowance at issue, which, according to him, he wanted to claim ‘in good faith’, it should be noted that in such a situation the applicant should, at any event, have had doubts as to the grounds for the payments in question. Thus, he was necessarily required to contact his administration so that it could carry out the necessary checks (see judgment in Tsirimiagos
v Committee of the Regions, F‑100/07, EU:F:2009:21, paragraph 75).
78. Moreover, if in doubt he could have approached his administration and submitted to it his own interpretation of the rules in order to secure, despite the case-law to the contrary, payment of most of the benefits provided for under Article 71 of the Staff Regulations. However, the actions taken by the applicant demonstrate on the contrary that he fully understood the meaning of the provisions governing entitlement to the installation allowance and that he was fully aware of the obligation he was under to specify and substantiate the date on which his family had taken up residence in Brussels (see, to that effect, judgment in Thommes
v Commission, T‑195/03, EU:T:2005:344, paragraph 126).
79. Lastly, it is also necessary to reject as unfounded the applicant’s argument, in essence, that in order to rely on the second sentence of the second paragraph of Article 85 of the Staff Regulations the administration must be in a position to establish, within five years after the irregularity was committed, that it was deliberately misled by the official concerned and that unless it can provide evidence to that effect the limitation period must be deemed to have passed. Such an argument misconstrues the very wording of that provision and, if it were to be allowed, would deprive that provision of any effectiveness.
80. It follows that the first part of the plea must be rejected as unfounded.
Second part: breach of the reasonable time principle in an action for recovery of overpayments
81. The applicant maintains that by taking steps to recover the daily subsistence allowance at issue 14 years after it was paid the Commission failed to fulfil its obligation to act within a reasonable time and also infringed the principle of legal certainty. He criticises OLAF in particular for delaying the opening of its investigation until 2007, which was 10 years after the facts alleged against him took place.
– Admissibility
82. The Commission considers that this part of the plea should be rejected as inadmissible. As the General Court held in its judgment in Commission
v Moschonaki (T‑476/11 P, EU:T:2013:557), since the applicant did not put forward that argument in his complaint he is deprived of the opportunity to do so for the first time at the judicial stage of the proceedings.
83. The Tribunal considers, however, that that plea of inadmissibility must be rejected from the outset. According to settled case-law, in staff cases the relief sought in the application to the Courts of the European Union may contain only heads of claim based on the same cause of action as that on which those raised in the complaint are based. However, those heads of claim may be developed before the Courts of the European Union by the submission of pleas and arguments which did not necessarily appear in the complaint, but are closely linked to it. Moreover, first, since the pre-litigation procedure is an informal procedure and those involved at that stage are generally acting without the assistance of a lawyer, the administration must not interpret complaints restrictively but should, on the contrary, examine them with an open mind. Secondly, it is not the purpose of Article 91 of the Staff Regulations to bind strictly and absolutely the contentious stage of the proceedings, if any, provided that the claims submitted at that stage change neither the legal basis nor the subject-matter of the complaint (judgment in Commission
v Moschonaki, EU:T:2013:557, paragraphs 73 and 76).
84. In the present case, the applicant relied in his complaint on expiry of the limitation period, as he alleges, under Article 85 of the Staff Regulations, precluding recovery of the daily subsistence allowance at issue, and the point in time when the alleged irregularity took place. Thus, the appointing authority was in a position to have a sufficiently detailed knowledge of the criticism which the applicant levelled against the contested decision, namely that the decision was taken out of time and in breach of the relevant limitation period.
– Substance
85. As a preliminary point, the Tribunal finds that, in view of the application in the present case of the second sentence of the second paragraph of Article 85 of the Staff Regulations, the period of five years provided for in the first sentence of that provision is not applicable. Thus, the present case is governed in the same way as those, comparable, cases coming under Article 85 of the Staff Regulations in the version prior to 1 May 2004, namely that no limitation period determined in advance is applicable to an action for recovery of overpayments brought by the appointing authority.
86. It should be noted in that regard that it is not for the Courts of the European Union to fix the time-limits, scope or detailed rules for the application of the limitation period in respect of an infringement, whether generally or in relation to specific cases of which they are seised. However, the absence of legislative limitation does not preclude censure of the Commission’s action, in a specific case, in the light of the principle of legal certainty. In the absence of any provision laying down a limitation period, the fundamental requirement of legal certainty has the effect of preventing the Commission from indefinitely delaying the exercise of its powers (judgment in Sumitomo Chemical and Sumika Fine Chemicals
v Commission, T‑22/02 and T‑23/02, EU:T:2005:349, paragraph 87 and the case-law cited).
87. Accordingly, the Courts of the European Union, when examining a complaint alleging that the Commission’s action was too late, must not merely find that no limitation period exists, but must satisfy itself that the Commission did not act excessively late (judgments in Sumitomo Chemical and Sumika Fine Chemicals
v Commission, EU:T:2005:349, paragraph 88, and, by analogy, François
v Commission, T‑307/01, EU:T:2004:180, paragraph 46).
88. In general, where the duration of a procedure is not set by a provision of EU law, the ‘reasonableness’ of the period of time taken by the institution to adopt a measure at issue is to be appraised in the light of the importance of the case for the person concerned, its complexity and the conduct of the parties to the case (judgment in Review Arango Jaramillo and Others
v EIB, C‑334/12 RX-II, EU:C:2013:134, paragraph 28 and the case-law cited).
89. In the particular area of recovery of overpayments provided for in Article 85 of the Staff Regulations, whether or not a period is reasonable must be interpreted inter alia in the light of the extent to which it was obvious that the payments in question were not due and of the occasional or continuous nature of the overpayments. Time is therefore only one factor to be taken into account in determining whether the right to recovery was properly exercised, particularly in view, first, of the fact that the irregularity on the part of the administration was obvious and, second, of all the circumstances which may be taken into account, such as the amounts requested, the wrongful conduct of the administration, the good faith of the official and the care which he might normally be expected to exercise in the light of his training, his grade and his professional experience (see, to that effect, judgment in Acton and Others
v Commission, 44/74, 46/74 and 49/74, EU:C:1975:42, paragraph 29; White
v Commission, T‑107/92, EU:T:1994:17, paragraph 47; and Ronsse
v Commission, T‑205/01, EU:T:2002:269, paragraph 52).
90. However, the question whether the Commission acted excessively late must not be assessed solely on the basis of the time which elapsed between the events at issue and the commencement of the action. On the contrary, the Commission cannot be regarded as having acted excessively late if there is no delay or other negligent act imputable to it and, in that regard, account should be taken in particular of the time when the institution became aware of the acts constituting the infringement and of the reasonableness of the duration of the administrative procedure (judgments in Ronsse
v Commission, EU:T:2002:269, paragraph 53; Sumitomo Chemical and Sumika Fine Chemicals
v Commission, EU:T:2005:349, paragraph 89; and, to that effect, judgment in Nencini
v Parliament, T‑431/10 and T‑560/10, EU:T:2013:290, paragraphs 48 to 50, the subject of an appeal before the Court of Justice, Case C‑447/13 P). In particular, with regard to the initiation of an investigation procedure, observance of a reasonable period is assessed where and from the time when the administration becomes aware of facts and conduct which are liable to constitute breaches of an official’s obligations under the Staff Regulations (see judgment in François
v Commission, EU:T:2004:180, paragraph 48).
91. In a situation where the irregularity committed was or should have been evident to the official in question, it has been held that a period of almost seven years between the start of the overpayments and the date on which the administration brought the action for recovery of the overpayment did not appear unreasonable (see judgment in Ronsse
v Commission, EU:T:2002:269, paragraph 53; see also, regarding an error discovered seven years after the overpayment, judgment in Ritto
v Commission, EU:F:2008:110).
92. Moreover, as the Commission rightly noted, in the case of an official whose conduct was merely negligent and who, in contrast with the present case, did not display a deliberate intention to mislead the administration, the General Court of the European Union held that the bringing of an action for recovery of benefits unduly received by an official more than 10 years after the payments at issue, although it occurred after a very long time, did not appear so excessive, in the light of the circumstances of the case, as to affect entitlement to recover the overpayment (see judgment in White
v Commission, EU:T:1994:17, paragraph 48).
93. The Tribunal considers that the solution adopted in paragraph 48 of White
v Commission
(EU:T:1994:17) is all the more appropriate in the present case in the light of the circumstances of this case, in particular the applicant’s intention to mislead his administration. Thus, even though the appointing authority instituted the procedure for reviewing the regularity of the daily subsistence allowance payments at issue almost 10 years after those payments were made and was not in a position to prove that those payments were irregular and hence require them to be reimbursed until 14 years after they were paid, those periods of time, although very long, were not so excessive as to affect entitlement to recover the overpayment.
94. In the present case, whilst the allowance at issue was paid to him over a period of 180 days between 1 September 1997 and 1 March 1998, the investigations to establish the reliability of the evidence supplied by the applicant in order to obtain that allowance and other financial benefits were initiated by OLAF following a denunciation received on 19 July 2007. The applicant was informed of the opening of that investigation on 13 March 2008 and, after interviewing him on two occasions, OLAF, on 30 March 2012, recommended that the Commission effect recovery, which it did on 6 July 2012.
95. In that regard, the Tribunal notes that it was only as a result of accusations made, in the present case through the intermediary of OLAF, that the administration was made aware of the irregularity at issue in the present case. As soon as it became aware of that information, OLAF forwarded it to the appointing authority and initiated a procedure in order to enable the latter to take proceedings concerning that irregularity, thereby meeting the requirement referred to in paragraph 90 above.
96. Next, the Tribunal notes that, in order to circumvent the appearance of legality of the documents and requests submitted by the applicant, the administration needed time to conduct the necessary investigations. Those investigations were particularly complex in view of the large number of documents and accusations brought to the attention of the administration by the applicant’s ex-wife. It was also necessary for OLAF to interview a number of persons and question a number of PMO services involved in the payments made to the applicant, not only in 1997-1998, but also on later dates.
97. In view of those circumstances, the appearance of the OLAF report four years after the investigation opened does not appear unreasonable. It should also be noted, first, that the appointing authority cannot be criticised for waiting for the results of OLAF’s investigation and, secondly, that once the report on that investigation was finalised and was sent to it the appointing authority took steps to recover the daily subsistence allowance at issue within three months.
98. In the light of all of the foregoing, the second part of the plea alleging breach of the reasonable time principle must be rejected and accordingly the third plea must be rejected as unfounded.
Fourth plea: breach of the principles of protection of legitimate expectations and sound administration
99. In this plea the applicant claims that, in taking action to recover the daily subsistence allowance at issue, the appointing authority infringed the principle of protection of legitimate expectations since, having duly provided the information he had been requested to provide at the material time, he could reasonably expect that payments made between 1997 and 1998 could no longer be claimed back from him. For the same reasons, in acting in this way, in a tardy and inopportune manner, the appointing authority failed to comply with the principle of sound administration and the principle of legal certainty.
100. In that regard, the Tribunal notes that, since Article 85 of the Staff Regulations is itself an expression of the principle of protection of legitimate expectations, the absence of infringement of that article, as established above, therefore also means that the plea of breach of that principle must be rejected (judgment in F
v Commission, EU:T:2007:140, paragraph 167).
101. It must be stated that the second sentence of the second paragraph of Article 85 of the Staff Regulations requires the administration to recover overpayments in full in the specific situation where it is able to establish that the member of staff concerned deliberately misled it, in breach of the specific duty of loyalty referred to above (see judgment in CR
v Parliament, EU:F:2014:38, paragraph 62).
102. The arguments put forward by the applicant in order to establish a breach of the principle of sound administration are broadly the same as those he puts forward in support of a breach of the principle of legal certainty, which were examined above and rejected as unfounded in the context of the examination of the third plea.
103. As regards the applicant’s claim that he was discriminated against, besides the fact that it is not substantiated in any way, it should be noted that, even if it were established, the fact that the administration might have unlawfully given allowances to other officials does not permit the applicant to receive an allowance under the Staff Regulations when he does not fulfil the conditions for so doing. Similarly, in view of his intention to mislead the appointing authority, the applicant cannot accuse it of failure to comply with its duty to have regard for the welfare of officials when it is in fact the official who has failed to comply with his duty of loyalty as now formally set out in Article 11 of the Staff Regulations.
104. The fourth plea must therefore also be rejected as unfounded.
3. Claim for compensation
105. As regards the claim for compensation, suffice it to note that claims for compensation for material or non-material damage must be rejected where, as in the present case, they are closely associated with claims for annulment which have themselves been dismissed as unfounded (judgment in A
v Commission, F‑12/09, EU:F:2011:136, paragraph 232 and the case-law cited).
106. In so far as all the claims for annulment are rejected, it is necessary likewise to reject the claim for compensation as being unfounded.
Costs
107. Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any.
108. It is apparent from the reasons set out in the present judgment that the applicant has been unsuccessful. Furthermore, in its pleadings the Commission has expressly asked that the applicant be ordered to pay the costs. Since the circumstances of the present case do not warrant application of Article 87(2) of the Rules of Procedure, the applicant must bear his own costs and be ordered to pay the costs incurred by the Commission.
Operative part
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Second Chamber)
hereby:
1. Dismisses the action;
2. Declares that Mr López Cejudo is to bear his own costs and orders him to pay the costs incurred by the European Commission.