62014FJ0042_EN
Parties
Grounds
Operative part
Parties
In Case F-42/14,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
EH, an official of the European Commission, residing in Etterbeek (Belgium), represented by S. Rodrigues and A. Blot, lawyers,
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 25 September 2014,
gives the following
Judgment
Grounds
1. By application lodged at the Registry of the Tribunal on 6 May 2014, EH seeks annulment of the decision of the appointing authority of the European Commission of 24 June 2013 to impose on him a penalty of relegation by three steps, and annulment of the decision of 24 January 2014 rejecting his complaint.
Legal context
Rights and obligations of officials
2. Article 11 of the Staff Regulations of Officials of the European Union in the version applicable to the present dispute (‘the Staff Regulations’) provides, inter alia, that ‘[a]n official shall carry out his duties and conduct himself solely with the interests of the Union in mind [and] shall carry out the duties assigned to him objectively, impartially and in keeping with his duty of loyalty to the Union’.
Provisions relating to disciplinary measures
3. Under Title VI, entitled ‘Disciplinary measures’, Article 86 of the Staff Regulations provides:
‘1. Any failure by an official or former official to comply with his obligations under these Staff Regulations, whether intentionally or through negligence on his part, shall make him liable to disciplinary action.
2. Where the appointing authority or OLAF becomes aware of evidence of failure within the meaning of paragraph 1, they may launch administrative investigations to verify whether such failure has occurred.
3. Disciplinary rules, procedures and measures and the rules and procedures covering administrative investigations are laid down in Annex IX.’
4. Under Section 3, entitled ‘Disciplinary proceedings’, of Annex IX to the Staff Regulations, Article 9 of that annex provides:
‘1. The appointing authority may impose one of the following penalties:
(a) a written warning;
(b) a reprimand;
(c) deferment of advancement to a higher step for a period of between one and 23 months;
(d) relegation in step;
(e) temporary downgrading for a period of between 15 days and one year;
(f) downgrading in the same function group;
(g) classification in a lower function group, with or without downgrading;
(h) removal from post …’
5. Article 10 of Annex IX to the Staff Regulations provides:
‘The severity of the disciplinary penalties imposed shall be commensurate with the seriousness of the misconduct. To determine the seriousness of the misconduct and to decide upon the disciplinary penalty to be imposed, account shall be taken in particular of:
(a) the nature of the misconduct and the circumstances in which it occurred,
(b) the extent to which the misconduct adversely affects the integrity, reputation or interests of the institutions,
(c) the extent to which the misconduct involves intentional actions or negligence,
(d) the motives for the official’s misconduct,
(e) the official’s grade and seniority,
(f) the degree of the official’s personal responsibility,
(g) the level of the official’s duties and responsibilities,
(h) whether the misconduct involves repeated action or behaviour,
(i) the conduct of the official throughout the course of his career.’
Provisions relating to family allowances
6. According to Article 67(2) of the Staff Regulations, ‘[o]fficials in receipt of family allowances [namely, the household allowance, the dependent child allowance and/or the education allowance] shall declare allowances of like nature paid from other sources; such latter allowances shall be deducted from those paid under Articles 1, 2 and 3 of Annex VII.’
7. Article 2 of Annex VII to the Staff Regulations provides:
‘1. An official who has one or more dependent children shall, in accordance with paragraphs 2 and 3 below, receive [a monthly allowance] for each dependent child.
2. “Dependent child” means the legitimate, natural or adopted child of an official, or of his spouse, who is actually being maintained by the official.
…
Any child whom the official has a responsibility to maintain under a judicial decision based on Member States’ legislation on the protection of minors shall be treated as a dependent child.
…
7. If custody of the dependent child within the meaning of paragraphs 2 and 3 has been entrusted by law or by an order of court or of the competent administrative authority to another person, the dependent child allowance shall be paid to that person in the name and on behalf of the official.’
Background to the dispute
8. After entering the service of the European Communities in 1991 as a temporary staff member, the applicant has been a permanent official of the Commission since 1 March 1998 and, before the disciplinary measure of relegation in step was imposed on him by the appointing authority, performed the duties of an administrator in Grade AD 13, step 1, responsible for the management of programmes in the Directorate-General (DG) for Agriculture and Rural Development.
9. The applicant is the father of five children and, as such, received family allowances under Article 2 of Annex VII to the Staff Regulations (‘family allowances under the Staff Regulations’).
10. In the case of the applicant’s two eldest children, from a first marriage dissolved on 14 January 2000, from 1 April 1994 onwards the dependent child allowance under the Staff Regulations was paid in full by the Office for the Administration and Payment of Individual E ntitlements (PMO) to the applicant’s ex-wife in the name and on behalf of the applicant, and was to be deducted from the amount of the maintenance payable by the latter to his ex-wife.
11. In the case of the applicant’s three other children, born in 1995, 1998 and 2002 to his current wife, it is clear from the file that, in the declaration of birth form for the child born in 1998, the applicant informed the Commission that the child’s mother ‘[was] employed and in receipt of a birth grant: “Yes”’, but was not in receipt of a family allowance, specifically stating ‘[n]o’.
12. In respect of each of those three children, the applicant received from the PMO a note worded as follows:
‘…
It appears from the supporting documents that:
– no [national] family allowance is being paid in respect of this child.
Accordingly, I wish to inform you that:
– you will receive the dependent child allowance … under Article 2 of Annex VII to the Staff Regulations;
– under Article 67(2) of the Staff Regulations, the dependent child allowance will be paid to you in full;
…
Reminder of the administrative provisions:
– Officials are required to report in writing any change in their situation immediately to the administration.
– Article 85 of the Staff Regulations: “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”.’
13. It is clear from those notes sent to the applicant concerning the dependent child allowance under the Staff Regulations that on 1 May 2002 he was receiving family allowances under the Staff Regulations in full for each of his five children.
The correspondence initially exchanged between the administrations
14. It is apparent from all the correspondence which the applicant annexed to his action that, in essence, his present wife, to whom he was married on 1 September 2000, applied for those benefits on the birth of each of their three children to Assubel, the Belgian insurance body responsible for payment of national social security benefits such as the birth grant and family allowances.
15. In that regard, by letter of 14 February 1996, Assubel, in response to her application for family allowances for the child born in 1995, informed the applicant’s wife that, since the amount of the family allowance provided by the Commission was higher than that of the Belgian family allowance, it was not possible to grant her that national family allowance.
16. By letter of 25 September 2000, in response to another of her applications for family allowances, made by telephone after her marriage to the applicant the preceding 1 September, the Belgian insurance body Partena (‘Partena’), which had succeeded Assubel, informed the applicant’s wife that in order to pay her those allowances that national body needed a document from the Commission certifying that no equivalent benefits were being paid by the European Union. The applicant’s wife did not reply to that letter, nor did she ask the Commission either to provide her with such a document or to approach that national body.
17. By letter of 25 March 2002 addressed to the Commission, Partena informed that institution that, in order to be able to pay the applicant’s wife national family allowances, it required a certificate from the Commission stating the date from which family allowances under the Staff Regulations had been paid.
18. By letter of 12 April 2002 addressed to Partena and copied to the applicant, the Commission certified that the latter had received family allowances under the Staff Regulations in full for his two children born in 1995 and 1998 — namely for the first since 1 November 1995 and for the second since 1 February 1998.
19. By letter of 28 August 2003, Partena informed the Commission that it was investigating the applicant’s wife’s entitlement to family allowances since 1 December 1995. Partena asked the Commission to provide it with the birth certificate of the applicant’s youngest child, which was in the Commission’s possession, and informed the latter that it would send it details of the payments made since December 1995 in favour of the applicant’s wife. Lastly, Partena asked the Commission to contact the applicant’s wife ‘in order to obtain [from her] the family allowances [under the Staff Regulations] which [the Commission] [had] paid in the place [of Partena]’.
20. By letter of 6 January 2004 addressed to Partena and copied to the applicant (‘the letter of 6 January 2004’), the PMO replied that it had noted the fact that Partena was investigating the entitlement to Belgian family allowances by reason of the applicant’s wife’s paid employment since 1 December 1995. In that regard, the PMO informed Partena that it was itself paying the applicant family allowances under the Staff Regulations in full for his three youngest children, namely for the first two as stated in paragraph 18 above and for the third since 1 May 2002. The PMO asked Partena ‘to provide [it] with a refund of all the Belgian family allowances paid since 1 December 1995 and to send [it] a monthly statement of those refund payments which [were] to be made into the [Commission’s] account, giving references, [namely, the applicant’s name and staff number]’. The PMO also asked Partena to prepare a statement showing the month from which the national body would start paying Belgian family allowances to the applicant’s wife and the monthly amount of those payments, so that the PMO could pay, with effect from that date, family allowances under the Staff Regulations on a top-up basis. That letter from the PMO was not answered by Partena.
21. By letter of 9 November 2006, in connection with her request of 7 November 2006, the purpose of which, according to the applicant, ‘was to obtain in any event an explanation of the reasons why Partena had ceased its allowance payments between April 2005 and September 2006’, the applicant’s wife was informed by Partena that an amount of EUR 482.14 had been paid to her each month since 1 October 2006 in family allowances for her three dependent children.
22. By letter of 9 November 2009 sent to Partena and placed on the applicant’s personal file, the Commission informed the national body that it was paying family allowances under the Staff Regulations in full for the applicant’s three youngest children, reminding it that, under the case-law arising from the judgment of 7 May 1987 in Commission
v Belgium
(186/85, EU:C:1987:208), family allowances under the Staff Regulations were supplementary to the family allowances to be paid primarily by the national authorities.
The investigation
23. By email of 10 February 2010, headed ‘… Investigation into dependent child allowance[s] received from other sources (from [1 January] 2005 to the present)’, the PMO informed the applicant in essence that information available to it showed that his spouse was in paid employment or unemployed, entitling her to receive Belgian family allowances, but that the applicant had not declared allowances received for their children from other sources. The PMO recalled in that regard the provisions of the Staff Regulations, namely Article 67(2) and the second paragraph of Article 68 of the Staff Regulations, laying down the ‘anti-overlap’ rule in respect of any family allowances received from other sources, which officials are required to declare (‘the anti-overlap rule’), it being understood that the amount of family allowances received from other, primary, sources must be deducted from that of family allowances under the Staff Regulations. The PMO thus recalled that any spouse who is entitled to receive national family allowances must submit an application to do so, in the present case, to the Belgian National Family Allowances Office through the spouse’s employer, and the PMO must be informed accordingly. Lastly, the PMO asked the applicant to complete a declaration form entitled ‘Family allowances … received from other sources’ and to return it to the PMO if he was, or ought to be, receiving national family allowances.
24. In a reply by e-mail of 10 February 2010, addressed to the PMO and copied to the applicant’s wife, the applicant explained to the PMO that he did not understand what its request meant since, after they had submitted their declarations concerning the births of their children in connection with their application to receive benefits direct from Partena, the PMO had made direct contact with Partena, which was dealing with his wife’s family allowances on behalf of her employer. The applicant stated that, ‘[c]onsequently, [the] PMO [had] already been informed of the situation of his wife, who [was] receiving family allowances from her employer’ and asked the PMO ‘what further information it required’. Thus, the applicant did not at that time complete or return the declaration form which the PMO sent to him with the e-mail referred to in the previous paragraph. He did, however, send to the PMO a copy of the letter of 6 January 2004, but did not send a copy of the letter of 9 November 2006 which Partena had sent to his wife.
25. By e-mail of 11 February 2010, the PMO confirmed to the applicant that it was in contact with Partena concerning the family allowances for his three youngest children and that ‘[t]he case [was] still being settled by Partena’. The PMO also informed the applicant that the request which had been sent to him for a declaration of family allowances received from other sources related also to his two eldest children, since, according to the most recent information available to the PMO, the mother of those two children, for whom family allowances under the Staff Regulations were being paid in full, was declared as having ‘no paid employment’. The PMO asked the applicant to confirm whether that was still the employment status of his ex-wife.
26. Following a telephone conversation with the PMO official in charge of his file, the applicant sent him on 11 February 2010 an e-mail in which he stated first, that, with regard to his three youngest children, since the PMO was awaiting a reply from Partena, he inferred from that that he was not required at that stage to provide any further information regarding the national family allowances received by his wife. Secondly, the applicant stated, with regard to his two eldest children, who lived with their mother, his ex-wife, that he was no longer in contact with the latter and that, to his knowledge, she was not working. He also provided the PMO with her address in Belgium.
27. By letter of 15 February 2010, the PMO informed the applicant that, on the basis of the information which he had sent it by e-mail, it was closing the investigation with regard to his two eldest children, but that if the employment status of his ex-wife were to change he should inform the PMO. With regard to his three youngest children, the PMO told the applicant that ‘[his] file remained open’ and that, as soon as the applicant received information from Partena he was requested to pass it on to the PMO forthwith.
28. By e-mail sent late morning on 23 September 2011, the PMO told the applicant that, to date, it still had no news in relation to his file and, consequently, it asked him to provide it with information on the situation regarding his request to Partena for his situation to be rectified.
29. By e-mail sent on the afternoon of 23 September 2011, the PMO informed the applicant that it had received the information it needed directly from Partena and that his file would therefore be updated.
30. By note of 29 September 2011, the PMO informed the applicant in essence that it had received confirmation from Partena that, since 1 October 2006, he had been receiving each month from that body, through his wife, family allowances amounting monthly to between EUR 482.14 and EUR 586.27, figures that were certified by the Belgian body and which amounted to EUR 33 875 in total. Thus, the applicant was informed that, under Article 85 of the Staff Regulations, that sum would be recovered in staggered payments and that, since he had not declared that he was receiving national family allowances, the PMO was required to ‘forward [his] file to the [Investigation and Disciplinary Office of the Commission] for information and for possible investigation as regards the justification for recovery [beyond] the five [most recent years]’.
The investigation procedure and the appointing authority’s report
31. By note of 27 January 2012, providing a ‘[m]andate for the hearing provided for in Article 3 of Annex IX to the Staff Regulations’, the Director-General of DG Human Resources and Security, acting as the appointing authority, told the Director of the Investigation and Disciplinary Office of the Commission (IDOC) that he had been informed that the applicant had not declared family allowances paid from other sources and that, consequently, he had decided to invite the applicant to attend a prior hearing under Article 3 of Annex IX to the Staff Regulations, so that it could assess the charges that might be brought against the applicant and decide accordingly whether or not they warranted the opening of a disciplinary investigation. By that note, the Director of the IDOC was charged with conducting the applicant’s hearing, which took place on 28 February 2012.
32. It is clear inter alia from the record of the hearing that the applicant confirmed that he had received family allowances under the Staff Regulations, for his first child from 1 August 1991 to 31 August 2008, for his second child from 1 August 1991 to 31 July 2011, for his third child since 1 January 1996, for his fourth child since 1 February 1998 and, lastly, for his fifth child since 1 May 2002. The applicant also confirmed that he had received a copy of a note of 14 February 1994 sent by the PMO to his ex-wife, in which she had been informed that the dependent child allowance under the Staff Regulations would be paid to her in the name and on behalf of the applicant, provided that the provisions granting entitlement to family allowances under the Staff Regulations were still complied with.
33. As regards the lack of a declaration concerning whether his ex-wife had been employed since 1995, the applicant stated that, following their separation and their difficult divorce in 2000, they were no longer in contact; that, at that time, she was not working; that, under the divorce settlement agreement, the family allowances under the Staff Regulations, which were paid to his ex-wife by the PMO, were deducted from the maintenance he had to pay her; that since then he had been in contact with his ex-wife to ask her to confirm the date on which she resumed her employment following their divorce and give, in her own words, the reasons why she did not receive family allowances under the Belgian system.
34. The applicant also acknowledged at the hearing that the PMO had informed him on three occasions that family allowances under the Staff Regulations were being paid to him in full for each of his three youngest dependent children, under Article 67(2) of the Staff Regulations, because no national family allowances were being paid to him from another source. Whilst confirming that, when declaring the birth of his fourth child in 1998, but also in respect of his other children, he had stated that he was not in receipt of a similar national allowance, the applicant acknowledged that with effect from 1 October 2006 his wife had begun to receive Belgian family allowances and had informed him accordingly.
35. When questioned as to the reasons why, following the letter of 9 November 2006 sent by Partena to his wife, he had not declared to the PMO the allowances received from other sources provided by that national body, the applicant stated that, in view of the letter of 6 January 2004, which had been copied to him, he thought at that time in good faith, first, that Partena would provide the PMO with the information concerning the exact sums received by his wife and, secondly, since those two administrations were in contact with each other, he was sure that it would not be possible to receive national family allowances at the same time as family allowances under the Staff Regulations. According to the minutes of the hearing, the applicant also stated that, when his wife had informed him that she was now receiving family allowances paid by Partena for their three children, he had replied that the PMO was dealing with the matter and would settle the situation with Partena.
36. Lastly, the applicant stated that he had not checked his pay slips, namely those for the period 2006/2011, to see whether or not he was still receiving family allowances under the Staff Regulations in full, and also that he and his wife did not have a joint bank account.
37. On 6 July 2012, the Director-General of DG Human Resources and Security, as the appointing authority, prepared a report to the Disciplinary Board in accordance with Article 12 of Annex IX to the Staff Regulations (‘the appointing authority’s report’).
38. As regards the applicant’s three youngest children, the appointing authority’s report stated that it had been discovered that, with effect from August 2003, Partena had begun to pay Belgian family allowances each month into the applicant’s wife’s personal bank account and also that bank transfers of EUR 10 866.17 and EUR 5 547.27 had been made by Partena, in September 2003 and April 2005, respectively, in order to adjust retrospectively payment of the family allowances for the three children for the periods from October 1997 to June 2002 and from July 2002 to February 2005, respectively.
39. The appointing authority’s report stated that, in addition to the amount of EUR 33 875, referred to in paragraph 30 above, the amount of the national family allowances which had been paid by Partena to the applicant’s wife in respect of the period from October 1997 to March 2005, inclusive, was EUR 25 816. Since that amount ought to have been deducted from the amount of family allowances under the Staff Regulations received by the applicant, the total financial loss in the present case was ultimately EUR 59 691.
40. As regards the allowances under the Staff Regulations which had been paid in respect of the applicant’s two eldest children, the appointing authority’s report stated that, even if his ex-wife was employed from 2005 at the earliest, which gave her entitlement to Belgian family allowances, the applicant could not be criticised for failing to inform the PMO accordingly.
41. As regards the three youngest children, for whom his wife had received national family allowances from Partena, the appointing authority’s report found that ‘[i]n failing to take the initiative to declare to the administration the Belgian [family] allowances received in respect of his children, when he knew that those allowances were being paid to his wife and that he was also receiving family allowances under the Staff Regulations in full in respect of those children, [the applicant] [had] infringed Article 67(2) of the Staff Regulations’.
42. The appointing authority’s report stated that, contrary to what the applicant had claimed, his conduct could not be explained by the existence of direct contacts between Partena and the PMO, contacts which gave him reason to believe that they would avoid any overlapping of national family allowances and family allowances under the Staff Regulations. In particular, the appointing authority’s report stated that, in view of the content of the letter of 6 January 2004, copied to the applicant, the latter should, at that date at the latest, have clarified his situation, since, contrary to what the PMO thought at that time and what is suggested by that letter, Partena was no longer investigating, at that date, the applicant’s wife’s entitlement to Belgian family allowances, but had on the contrary already begun to pay those allowances to her more than five months earlier, a fact which the applicant should have expressly reported to the PMO.
43. Moreover, the appointing authority’s report stated the view that, when Partena had resumed its payments in November 2006 to the applicant’s wife and she had asked the applicant what should be done, the applicant should have contacted the PMO in order to clarify the situation in the light of that new fact. By failing to do so, when at the same time family allowances under the Staff Regulations continued to be paid to him, as he could have seen from his pay slips, the applicant thus allowed, despite his awareness of the anti-overlap rule, significant overpayments to be made to him by the Commission, and did so in breach of Article 67(2) of the Staff Regulations.
44. Moreover, the appointing authority’s report stated that the applicant’s conduct also constituted failure to comply with his duty of loyalty to the institution, within the meaning of Article 11 of the Staff Regulations, since that duty required him to facilitate the task of the administration – even though the latter was in contact with Partena – by providing it with all the necessary information enabling it to assess whether or not he was entitled to receive in full family allowances under the Staff Regulations, which was something he had failed to do.
45. The appointing authority’s report found that, in view of such infringements of Article 67(2) and the first paragraph of Article 11 of the Staff Regulations over a period of time, which occasioned significant financial loss for the Commission, downgrading would constitute a penalty proportionate to the seriousness of the misconduct.
The reasoned opinion of the Disciplinary Board
46. The Disciplinary Board, to which the appointing authority’s report was submitted, by note of 6 September 2012, summoned the applicant to attend a hearing scheduled for 24 October 2012, inviting him to submit written observations.
47. By letter of 15 October 2012, the applicant submitted his written observations, in which he sought inter alia to dispute certain assertions contained in the appointing authority’s report, to make additions to what he considered to be an incomplete disciplinary file and to rely on some exculpatory evidence that had not been taken into consideration.
48. In that regard, the applicant disputed the assertion in the appointing authority’s report that his wife had asked him, in November 2006, ‘what should be done’ after ‘Partena [had] resumed paying her family allowances’. According to the applicant, at that date his wife was unaware of the nature and precise amounts of the allowance payments in question which had been made before November 2006, which was supported by the fact that, in the letter of 9 November 2006 which she had received from Partena, that national body had established entitlement to family allowances only from 1 October 2006. The applicant also contended that he had not accepted any allowance payments from the Commission since he genuinely thought that the PMO, which was in contact with Partena, would be able to settle the situation simply by a letter or a telephone call.
49. In addition to the letters referred to in paragraphs 15 to 18 above, the applicant submitted to the Disciplinary Board a letter dated 22 March 2012, sent by his wife to Partena in reply to a letter from that body of 14 March 2012. In that letter, referring to the print-out of that body’s database, dated 14 March 2012, tracing the payments which had been made into her personal account in respect of family allowances over the period 2000/2012, the applicant’s wife asked the national body, in connection with the print-out attached to the letter of 14 March, to provide her with a copy of Partena’s decision which established, at that time, entitlement to Belgian family allowances in respect of the period before October 2006, since she could not remember receiving such a letter and, in her view, her entitlement did not arise until October 2006, as she had been informed in a letter dated November 2006.
50. The applicant also provided the Disciplinary Board with a sworn statement by his wife, signed on 11 March 2012, in which she declared that she had received birth grants from Partena but did not remember receiving family allowances from Partena before October 2006. The applicant’s wife also declares that she was ‘very surprised, not to say shocked, by Partena’s recent statement to the Commission [that she had received] allowances from [that body] since 1995’ and intended to request, if necessary, copies of her bank statements, which she had not retained, for the periods during which Partena claims to have paid her money.
51. In his written observations, the applicant contended that he had no intent to defraud and that even if he had been guilty of misconduct, that was partly through ignorance and partly through over-confidence in the capacity of the PMO and Partena to settle the matter of the payment of the family allowances without his involvement. The matter was particularly complex, as was shown by the contradictions and manifest errors on the part of Partena in the payment of family allowances to his wife. Moreover, Partena did not detail its purported payments in any correspondence, and they are not recorded on his wife’s payslips; the applicant was unaware of the existence of any allowance payments since he did not have access to his wife’s personal bank account.
52. The applicant also pointed out that, over his 20 years of service at the Commission, he had not been accused of any failure to fulfil his duties under the Staff Regulations and that, on the contrary, as is clear from his 2010 staff report, he was described as a person mindful of the rules and practice, who acted ethically and with integrity.
53. The applicant concluded that the appointing authority’s proposal to downgrade him appeared to him to be totally disproportionate.
54. On 12 November 2012, the Disciplinary Board delivered its reasoned opinion. In that connection, it excluded from its examination the situation, as regards family allowances, of the applicant’s two eldest children, stating that no criticism had been levelled by the appointing authority in that respect.
55. As regards the three younger children, the Disciplinary Board stated that, up until 2003, there had been no overlapping of benefits under the Staff Regulations and Belgian benefits, since the applicant’s wife, even though she was employed, did not receive from Partena on a regular basis the Belgian family allowances to which she was entitled. However, she did receive them from August 2003, the date on which Partena began to pay family allowances for the applicant’s three younger children each month into the applicant’s wife’s personal bank account, and it had moreover, in September 2003, paid her an amount approaching EUR 11 000 by way of adjustment for the period from October 1997 to June 2002. Even though, from April 2005 onwards, after making a bank transfer amounting to more than EUR 5 500 to the applicant’s wife as an adjustment in respect of the period from July 2002 to February 2005, the national body had, for some unknown reason, suspended its allowance payments until September 2006, it would appear that, from October 2006 onwards, the monthly payment of Belgian family allowances had resumed and had continued uninterrupted.
56. The Disciplinary Board noted that the declarations made by the applicant on the births of his three younger children, that is to say, in 1995, 1998 and 2002, were not false or misleading since, at that time, no family allowance was actually being paid by Partena.
57. The Disciplinary Board considered that there was not sufficient factual evidence on the file to show the applicant’s intention to infringe Article 67(2) of the Staff Regulations, ‘[a]lthough it is difficult to believe that [the applicant] had not been alerted by his wife to the payments of [EUR] 11 000 and [EUR] 5 500 which she [had] received in 2003 and 2005’.
58. On the other hand, the Disciplinary Board held that, from October or November 2006, the date on which, as the applicant himself said, he had been informed of the fact that his wife would receive nearly EUR 500 per month in Belgian family allowances, he should have acted more diligently by informing the PMO of that change in circumstances, which ought to have meant that the amount which his wife was going to receive would be deducted from the amount which he continued to receive in full from the European Union budget; that was especially so since he was in a high grade, he occupied a post as programme manager and he was fully aware of the anti-overlap rule, of which he was reminded by the PMO on the birth of each of his children.
59. As regards the applicant’s arguments that he paid no attention to the family allowances received by his wife, did not look at her payslips to check whether the amount of the family allowances received by his wife was deducted from the amount which he was receiving by way of dependent child allowance under the Staff Regulations and expected the PMO and Partena, which had been in contact on the matter, to settle the question independently between the administrations, the Disciplinary Board considered that those explanations constituted neither a valid excuse nor a valid justification. Thus, it took the view that a disciplinary measure more severe than a mere warning or reprimand should be imposed on the applicant to make him understand that the institution was entitled to expect an appropriate level of care from its officials, especially since administrative matters involving the granting of financial benefits require a particularly high level of care on their part.
60. So far as the appointing authority’s proposal to downgrade the applicant was concerned, the Disciplinary Board agreed unanimously that a number of extenuating circumstances should be taken into account when deciding on the penalty to be imposed.
61. In that regard, the Disciplinary Board took into account as an extenuating circumstance ‘the near total confusion’ which reigned for a long time so far as the applicant’s wife’s entitlement to Belgian family allowances was concerned, inter alia because, from 1995 to 2000, Assubel had, in breach of the case-law of the Court of Justice of the European Union, withheld entitlement to those allowances on the ground that the family allowances under the Staff Regulations were higher; then, in 2000, Partena had made the grant of Belgian family allowances conditional upon production of a document from the Commission certifying that it was no longer paying dependent child allowance under the Staff Regulations; and, lastly, following the Commission’s reply of 12 April 2002 concerning the applicant’s situation as regards family allowances under the Staff Regulations, Partena had not started to pay Belgian family allowances until August 2003.
62. The Disciplinary Board also took the PMO’s inaction into account as an extenuating circumstance, since, having sought without success a refund of the Belgian family allowances from Partena in January 2004, unaware that in reality, the applicant’s wife had already begun to receive them from Partena, the PMO did not send any reminder to Partena nor did it seek to rectify the situation, which had thus persisted until the launch, in February 2010, of an overall review of family allowances received from other sources.
63. Even if the PMO had been unaware of Partena’s two adjustment payments to the applicant’s wife when, by letter of 6 January 2004, copied to the applicant, it asked Partena to refund to the Commission all the Belgian family allowances from 1 December 1995, the Disciplinary Board was still critical of the PMO’s inaction, especially since the amounts which it believed it was owed by Partena were significant. According to the Disciplinary Board, if the PMO had been more insistent with Partena on obtaining that refund the problem of the duplicated payments would have been detected and settled in 2004.
64. According to the Disciplinary Board, ‘[i]n other words, since January 2004 at the latest, the PMO had all the necessary information to prevent overlapping, but failed to make use of it, [so that the Disciplinary Board] questions whether the PMO assumed in that context its responsibility to protect the financial interests of the [Union] vis-à-vis the national administration [and] finds that, in any event, more attentive handling [of the] file in 2004, or even in 2002, could have avoided this case becoming a disciplinary matter.’
65. The Disciplinary Board unanimously held, however, that the applicant’s negligence could not be excused and warranted the imposition of a disciplinary measure having financial implications, whilst considering it necessary to attribute some of the responsibility to the PMO which, despite being aware of the fact that the applicant’s wife was entitled to receive Belgian family allowances had allowed the situation to persist for six years.
66. Accordingly, the Disciplinary Board recommended that the appointing authority should find only that there had been a breach, through negligence, of Article 67(2) of the Staff Regulations without classing it as failure to comply with the duty of loyalty referred to in Article 11 of the Staff Regulations. It therefore proposed that the appointing authority should impose on the applicant the penalty of deferment of advancement to a higher step for a period of 18 months.
The decision of the Tripartite appointing authority
67. By decision of 24 June 2013, the Tripartite appointing authority, composed of the Director-General of DG Human Resources and Security, the Deputy Director-General of DG Competition and an ‘hors classe’ adviser in DG Agriculture and Rural Development, after hearing the applicant at a hearing on 5 March 2013, decided to impose on the applicant the penalty of relegation by three steps (‘the contested decision’).
68. In that regard, the Tripartite appointing authority stated that, having received a copy of the letter of 6 January 2004, the applicant had been notified that his family allowances under the Staff Regulations would be reduced by the amount of the allowances of the same nature paid to his wife by Partena. Thus, between 2004 and 2011, he could easily have established from reading his payslips, sent first by internal mail and then electronically, that he was none the less still receiving benefits under the Staff Regulations in full. The Tripartite appointing authority held that, by 2006 at the latest, the date on which his wife had informed him that she was regularly receiving Belgian family allowances, the applicant ought to have contacted his administration to clarify his situation and, in the light of this, the appointing authority could not accept the argument that the applicant did not look at his payslips.
69. In addition to a breach of Article 67(2) of the Staff Regulations resulting from the failure to declare receipt of Belgian family allowances, the Tripartite appointing authority stated that in its view it was the responsibility of every official to provide the administration with all the information that would enable it to decide whether the benefit requested by that official should be granted. That proactive step follows from the duty of loyalty, meaning the obligation on every official to put the interests of the institution above any other consideration, including his personal interests. Thus, by his gross negligence, the applicant had also failed to fulfil that obligation laid down in Article 11 of the Staff Regulations.
70. As regards the existence of direct contacts between the PMO and Partena, the Tripartite appointing authority held that that fact did not by any means relieve the applicant of his obligation to provide the institution with all the information needed in order to determine his pecuniary entitlements. Thus, despite the inaction of the PMO relied on, the applicant, who was not unaware that family allowances under the Staff Regulations were merely a top-up, had in any event failed to report to the PMO that the Belgian allowances at issue were being paid regularly, although he continued to receive allowances under the Staff Regulations in full. The Tripartite appointing authority thus held that ‘the failure on the part of the administrations concerned to follow up the case does not constitute an extenuating circumstance with regard to the [applicant’s] conduct from October 2006 onwards’.
71. As regards the scale of the damage caused to the Commission’s interests, the Tripartite appointing authority noted that the applicant had been overpaid EUR 59 691, EUR 32 000 of which had already been recovered under Article 85 of the Staff Regulations. It also noted the applicant’s undertaking to repay, of his own volition, the remainder of the sum overpaid which had not been claimed from him on the ground that such a claim was time-barred, namely EUR 27 691.
72. Whilst noting the applicant’s gross negligence, which it regarded as unacceptable on the part of an official, the Tripartite appointing authority none the less did not consider that, by his conduct, the applicant had deliberately sought financial gain at the expense of the European Union budget.
73. As regards the level of personal responsibility of the official concerned, the Tripartite appointing authority held that the applicant was ‘fully responsible’ for the failure to inform his administration regarding the regular payment of Belgian family allowances to his wife from October 2006 onwards. Moreover, in view of his level of experience, his grade and his seniority, the Tripartite appointing authority held that greater vigilance and interest with regard to the relevant rules could have been expected of the official concerned. As regards, lastly, whether the misconduct involved repeated action, and the applicant’s past conduct, the Tripartite appointing authority noted that throughout his career the applicant had not failed to fulfil any of his obligations.
74. In the light of those considerations, the Tripartite appointing authority considered it justified to impose the penalty of permanent downgrading by one grade. However, considering that it ought to take into account, when deciding on the level of the penalty as regards its effects, the fact that the applicant was nearing the end of his career, the Tripartite appointing authority finally decided to impose on him only a penalty of relegation by three steps.
The pre-litigation procedure
75. By note of 23 September 2013, the applicant lodged a complaint against the contested decision. In support of his complaint he relied on two pleas, alleging both a manifest error of assessment and failure to state reasons. In essence, the applicant claimed that the Tripartite appointing authority had failed to take into account the extenuating circumstances accepted by the Disciplinary Board.
76. By decision of 24 January 2014, the Commission’s appointing authority responsible for deciding on complaints dismissed the complaint. In that regard, the appointing authority stated that, contrary to the applicant’s contention, the Tripartite appointing authority did take into account the fact that he had not deliberately failed to declare the regular payment of Belgian family allowances from 2006 and the fact that he had of his own volition undertaken to repay overpayments where any claim for repayment may have been time-barred. The same applied with regard to the fact that the applicant had not committed any other breach of his obligations throughout the course of his career, even though the Tripartite appointing authority had held that the applicant’s past conduct could not in itself constitute an extenuating circumstance with regard to the applicant’s gross misconduct in the present case.
77. Whilst conceding that there had initially been confusion regarding the applicant’s wife’s entitlement to Belgian family allowances, the appointing authority stated, first, that the situation had been clarified and rectified with effect from 2003, and, secondly, that with effect from October 2006 the applicant had been informed by his wife that she was receiving payments from Partena, as confirmed by the letter of 9 November 2006 from that body. Accordingly, at least from that latter date, the initial confusion regarding his wife’s entitlements had been dispelled and could no longer influence the applicant’s conduct as from that date.
78. The appointing authority disputed that the applicant could claim a legitimate expectation, based on the alleged fact that the PMO was fully aware, in January 2004, of the existence of payments of benefits by Partena, which allegedly gave him reason to believe that he was not required to supply further information to the PMO. The appointing authority stated in that regard that, in fact, the content of the letter of 6 January 2004 made clear that at that date the PMO was unaware of the existence of Partena’s payments of allowances to the applicant’s wife.
79. As for the PMO’s failure to exercise due care in handling the applicant’s case, whilst conceding that more attentive follow up of the applicant’s case would have prevented the persistence of the overlapping of national family allowances and family allowances under the Staff Regulations for six years, the appointing authority none the less held that that failure to exercise due care did not lessen the applicant’s own responsibility with regard to his failure to declare to his administration, from 2006, that his wife was receiving Belgian family allowances.
80. As regards the alleged failure to state reasons, the appointing authority held that the Tripartite appointing authority had provided adequate reasons for classing the applicant’s conduct as gross negligence. As regards the reason for the decision of the Tripartite appointing authority not to follow the reasoned opinion of the Disciplinary Board, the appointing authority stated that it had rejected the possibility of regarding the PMO’s conduct as an extenuating circumstance, which, at the same time, justified making the penalty adopted more severe than that recommended by the Disciplinary Board.
Forms of order sought and procedure
81. The applicant claims that the Tribunal should:
– annul the contested decision;
– annul, in so far as necessary, the decision rejecting the complaint;
– order the Commission to pay the costs.
82. The Commission contends that the Tribunal should:
– dismiss the action;
– order the applicant to pay the costs.
83. The parties were requested, by letter from the Registry of 15 September 2014, to respond to a number of questions put to them by the Tribunal by way of measures of organisation of the procedure. They duly complied with that request on 22 September 2014.
Law
84. In support of his action, the applicant relies on two pleas for annulment, both of the contested decision and of the decision rejecting the complaint, alleging, first, a manifest error of assessment and infringement of the principle of proportionality and, secondly, failure to state reasons.
Subject-matter of the action
85. As a preliminary point, it should be noted that, in accordance with the principle of economy of procedure, the European Union 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 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 (judgments in Adjemian and Others
v Commission, T-325/09 P, EU:T:2011:506, paragraph 33, and López Cejudo
v Commission, F-28/13, EU:F:2014:55, paragraph 29).
86. Even if that is so in the present case as regards the decision rejecting the complaint, in view of the evolving nature of the pre-litigation procedure, the statement of reasons contained in the decision rejecting the complaint, which in the present case clarifies certain aspects of the contested decision, must also be taken into account in the review of legality of the original act adversely affecting an official, since that statement of reasons is deemed also to cover that act (see judgment in Mocová
v Commission, F-41/11, EU:F:2012:82, paragraph 21).
First plea: a manifest error of assessment and infringement of the principle of proportionality
Arguments of the parties
87. In support of his first plea, the applicant claims in essence that the appointing authority committed a manifest error of assessment in failing to accept certain circumstances in the present case as being extenuating. Hence, the appointing authority adopted a penalty infringing the principle of proportionality.
88. In particular, among the matters which ought to have been acknowledged by the appointing authority as extenuating circumstances, the applicant cites, first, the fact that he and his wife did not have a joint bank account, which would explain why he did not realise that his wife had received several substantial amounts paid by Partena in 2003 and 2005 and was regularly receiving family allowances paid by Partena from November 2006 onwards. Secondly, he refers to the confusion, created by Partena’s equivocal conduct regarding his wife’s entitlement to receive Belgian family allowances. Thirdly, he raises the failure by the PMO to exercise due care, which should have been regarded as an extenuating circumstance. Fourthly, the appointing authority did not attach sufficient value as an extenuating circumstance to the fact that he had decided of his own volition to repay the sums overpaid, although any claim in respect of them was time-barred. The same applies, fifthly, as regards the absence of any intent on his part to mislead the administration. Lastly and sixthly, he refers to his irreproachable conduct throughout the course of his career.
89. The Commission contends that that plea must be rejected as unfounded, stating in essence that, in any event, since 2006 the applicant knew that Partena had informed his wife of the payment of Belgian family allowances, so that from then on he ought not to have continued, for nearly five years, to receive family allowances under the Staff Regulations without taking the trouble to check from his payslips whether the adjustment which should have ensued, namely a deduction of EUR 500, had actually been made or to inform the PMO of the content of Partena’s letter dated November 2006. The Commission states that the applicant could not have believed for five years that the situation would be settled between the administrations when he continued to receive family allowances under the Staff Regulations in full and his wife, for her part, was receiving Belgian family allowances in full.
Findings of the Tribunal
90. As a preliminary point, it should be noted that the lawfulness of every disciplinary measure requires that the truth of the facts alleged against the official concerned is established (judgments in Daffix
v Commission, T-12/94, EU:T:1997:208, paragraphs 63 and 64, and Tzikis
v Commission, T-203/98, EU:T:2000:130, paragraph 51).
91. The assessment of the seriousness of the shortcomings of which the Disciplinary Board found the official to be guilty and the choice of the disciplinary measure which appears, in view of those shortcomings, to be the most appropriate lie in principle within the broad discretionary power of the appointing authority, unless the measure imposed is disproportionate in relation to the facts as found in the decision (see judgment in E
v Commission, T-24/98 and T-241/99, EU:T:2001:175, paragraphs 85 and 86). Thus, according to established case-law, the appointing authority has the power, distinct from that exercised by the Disciplinary Board, to assess the official’s responsibility and subsequently to choose the disciplinary measure which it considers appropriate for the disciplinary offences found against him (judgments in Y
v Court of Justice, T-500/93, EU:T:1996:94, paragraph 56, and Tzikis
v Commission, EU:T:2000:130, paragraph 48).
92. Once the facts have been properly established, in view of the broad discretion enjoyed by the appointing authority in disciplinary matters, judicial review must be limited to ascertaining that there has been no manifest error of assessment and that there has been no misuse of powers (judgment in Tzikis
v Commission, EU:T:2000:130, paragraph 50).
93. With regard, in particular, to the proportionality of a disciplinary measure in relation to the seriousness of the facts held against the official, the Tribunal must take into consideration the fact that the penalty to be imposed is to be determined on the basis of an overall assessment by the appointing authority of all the concrete facts and matters appertaining to each individual case, bearing in mind that the Staff Regulations do not specify any fixed relationship between the disciplinary measures listed by them and the various types of misconduct on the part of officials, and do not state the extent to which aggravating or mitigating circumstances are to be taken into account in the choice of penalty. Consequently, the examination by the Tribunal is limited to a consideration of the question whether the weight attached by the appointing authority to such aggravating or mitigating circumstances is proportionate, given that during that examination it cannot substitute its own assessment for that of the appointing authority as regards that authority’s value judgments in this matter (judgment in BG
v Ombudsman, T-406/12 P, EU:T:2014:273, paragraph 64 and the case-law cited).
94. In the present case, the Tribunal notes that the applicant does not deny the fact that, even after being informed by his wife in 2006 that she had received confirmation from Partena that national family allowances would be paid with effect from 1 October 2006, he did not declare to his administration that his wife was receiving Belgian family allowances paid by Partena, even though he continued to receive family allowances under the Staff Regulations in full until the investigation took place in February 2010.
95. On the other hand, the applicant relies on the failure to take into account, or to take into account adequately, in the determination of the penalty imposed on him by the contested decision, certain circumstances which he regards as extenuating. They must therefore be examined in turn.
– The fact that the applicant and his wife did not have a joint bank account
96. With regard first of all to the fact that Partena was paying Belgian family allowances into the applicant’s wife’s personal account and that she and the applicant did not have a joint bank account, which meant that the applicant was not aware of the overlapping from the outset, the Tribunal considers that that fact is irrelevant as regards the applicant’s obligation to declare the allowances his wife was receiving from other sources in respect of their three children, for whom he himself was receiving in full allowances under the Staff Regulations.
97. In that regard, in addition to the fact, pointed out, moreover, by the Commission, that the applicant never claimed that he had severed contact with his wife, with whom he is living, the Tribunal considers, first, that it is scarcely plausible that throughout the period from 2003 to 2006 the applicant’s wife would not have realised, in view of the level of her pay, that she was receiving payments of allowances from Partena, including the substantial sums of EUR 11 000 and EUR 5 500 in September 2003 and in April 2005, respectively, and that she did not inform her husband accordingly.
98. Secondly, it is common ground that, besides the bank transfers made by Partena, between 2003 and 2006, into the applicant’s wife’s bank account, she had received official notification from Partena on 9 November 2006 informing her of her entitlement to Belgian family benefits, information which she had conveyed to the applicant but which he decided not to pass on to his administration. If he had sent that information to the PMO within a reasonable period the latter would have been made aware unequivocally of the fact that the applicant’s wife was receiving family allowances paid by Partena and of the precise amount of those allowances. The PMO would therefore have been obliged, at that time, to reduce immediately and commensurately the amount of the family allowances under the Staff Regulations paid to the applicant, which would have enabled him to avoid disciplinary proceedings.
99. Thirdly and in any event, where benefit is applied for and granted to an official in connection with his family circumstances, he cannot rely on his alleged lack of awareness of the situation of his spouse, whether in regard to the latter’s pursuit of paid employment, the amount of the remuneration received in respect of that employment or the spouse’s receipt of national benefits equivalent to benefits under the Staff Regulations.
100. If such an argument were to be accepted, it would enable officials or other staff members receiving, as in the present case, the full amount of family allowances under the Staff Regulations to consider themselves exempt from the obligation to declare national family allowances received from other sources, in cases where those national family allowances are paid, not directly to the official but to the official’s spouse and into her personal bank account. Moreover, such an approach might encourage the withholding of information, which might be damaging to the financial interests of the European Union.
– The confusion created by Partena regarding the applicant’s wife’s entitlement to receive Belgian family allowances
101. As regards, next, the confusion created by Partena’s conduct regarding the applicant’s wife’s entitlement to receive Belgian family allowances, it is clear from the documents before the Tribunal that the national body had, initially, wrongly withheld entitlement to Belgian family allowances from the applicant’s wife, at least until August 2003, and that, from that date until October 2006, Partena had made occasional bank transfers into the applicant’s wife’s personal bank account, without necessarily documenting them by notifying the decisions to pay the national family allowances.
102. That said, the Tribunal finds, first, that the applicant himself admits in his application that ‘[Partena’s] allowance payments became regular in 2006’, and, in response to a question from the Tribunal, he even stated that in her request to Partena of 7 November 2006 his wife had tried to find out why Partena had suspended its allowance payments between April 2005 and September 2006. That information thus shows that, contrary to what the applicant implied before the Disciplinary Board, the applicant’s wife was in fact aware that during the period concerned she was receiving Belgian family allowances paid by Partena. To this must be added the point made by the Commission at the hearing, that, in view of the content of the letter of 28 August 2003 which Partena sent to the Commission, the applicant’s wife must certainly have sent the birth certificate of their youngest child to Partena in order to enable that body to make the payments which it subsequently made to her from 2003 to 2006.
103. Secondly and in any event, the applicant’s wife, who had actively requested those payments from Partena on several occasions from 1996 onwards, had been informed by that body in the abovementioned letter of 9 November 2006 that from then on it would pay national family allowances for their three children. Thus, irrespective of the payments which Partena subsequently made to the applicant’s wife from 2003 to 2006 and the active approaches she made to Partena in order to obtain family benefits, it is clear that, from November 2006 onwards, her situation in so far as her entitlement to Belgian family allowances was concerned had been clarified and rectified.
104. In the declarations he had submitted to the PMO on the birth of each of his children, the applicant had declared that no family benefit equivalent to the dependent child allowance under the Staff Regulations was being paid in respect of his three youngest children and he had moreover acknowledged that he was fully aware of the anti-overlap rule. None the less, the applicant did not consider it necessary to give formal notice to the PMO of the change in circumstances, namely that his wife was receiving Belgian family allowances, thus infringing the general obligation incumbent on any official receiving pecuniary benefits to provide all the information concerning his personal circumstances and to bring to the notice of his administration any change that has taken place in his personal circumstances (see, to that effect, judgment in López Cejudo
v Commission, EU:F:2014:55, paragraph 67), an obligation that is moreover expressly noted in Article 67(2) of the Staff Regulations in connection with the anti-overlap rule.
– The PMO’s alleged failure to exercise due care, or alleged inaction on its part
105. As regards the failure by the PMO to exercise due care in investigating the applicant’s personal circumstances, inter alia from January 2004, the date on which the PMO asked Partena to refund it a significant backlog, the Tribunal holds that no inefficiency or inaction on the part of an administrative service responsible for protecting the financial interests of the European Union can exempt an official from his obligation to declare any change that has taken place in his personal circumstances and which may affect his entitlement to a benefit under the Staff Regulations that he himself has applied for.
106. First, although an administration exercising ordinary care may certainly be expected to update, at least annually, the personal data of recipients of benefits under the Staff Regulations paid monthly, it must be stated that the situation of an administration which is responsible for the payment of thousands of salaries and allowances 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 and reporting anything that might constitute an error, either to his disadvantage or his advantage (see, to that effect, order in Michel
v Commission, F-44/13, EU:F:2014:40, paragraph 54 and the case-law cited).
107. Secondly, an official exercising due care, who is aware of the provisions of the Staff Regulations under which a benefit is paid to that official at his request, in particular where those provisions are set out in the decision granting the benefit concerned, as in the present case, cannot simply continue to receive that benefit, namely the full amount of family allowances under the Staff Regulations, in silence when the official’s spouse receives the full amount of the equivalent national benefit in respect of the same children. In such a situation, the official cannot justify his keeping silent by the fact that those payments were, as the result of negligence, implicitly accepted or tolerated by his administration. To accept such negligence on the part of the administration as an extenuating circumstance would be tantamount to encouraging officials and other staff to profit potentially from such errors.
108. Lastly and thirdly, as the Commission rightly states, Partena was not necessarily bound to provide, in response to any requests from the Commission, detailed information on the personal circumstances of the applicant’s wife, who is not an official of that institution. Thus, in such a situation, it is all the more necessary for the official receiving the benefit under the Staff Regulations, a s the applicant was, to provide the documents he already has in his possession and, in any event, to inform his administration of any payments of social security benefits to his spouse by a body such as Partena. The duty of loyalty referred to in Article 11 of the Staff Regulations means that officials must facilitate the task of the administration in determining the scope of their pecuniary entitlements under the Staff Regulations.
– The applicant’s belief that the matter of the overlapping of benefits would be settled between the administrations
109. The applicant’s argument that he thought that the situation would be settled between the administrations is irrelevant and indeed appears inappropriate when account is taken of the fact that, following the final information sent to the applicant’s wife in Partena’s letter of 9 November 2006, the overlapping of the full amounts of Belgian family allowances and family allowances under the Staff Regulations persisted for a number of years.
110. In that regard, even allowing that the applicant could have entertained the mistaken belief that the situation would be settled between the administrations, the fact remains that through his own inaction the applicant derived benefit from the failure to settle his administrative situation, which persisted for a number of years. The applicant ought, in any event, to have had doubts as to the appropriateness of the payments he continued to receive from the PMO, namely the full amount of family allowances under the Staff Regulations, and which appeared on his monthly payslips which he is deemed to look at regularly. That applied also, as the Commission stated, even though, within that institution, payslips are no longer sent to officials by internal mail but are now accessed by means of a hyperlink communicated by e-mail.
111. Thus, as of November 2006 and until February 2010, the date of the overall review, the applicant ought to have contacted his administration so that it could conduct the necessary checks (see, to that effect, judgment in Tsirimiagos
v Committee of the Regions, F-100/07, EU:F:2009:21, paragraph 75), since it should have appeared to him increasingly evident, as the years went by, that his situation had not been reviewed by the PMO or resolved between the PMO and Partena, since he continued to receive the full amount of family allowances under the Staff Regulations and his wife continued to receive Belgian family allowances, in flagrant breach of Article 67(2) of the Staff Regulations.
112. In any event, first, it cannot escape the attention of a reasonably diligent official that notification regarding a change of family circumstances, such as Partena’s letter of 9 November 2006 notifying the applicant’s wife of her entitlement to Belgian family allowances, must be addressed directly to the competent department of his institution in a clear and unambiguous manner, something which the applicant manifestly failed to do, and, in that regard, the official may not take advantage of the fact that the administration obtained certain information by accident or indirectly (see judgment in Costacurta
v Commission, T-34/89 and T-67/89, EU:T:1990:20, paragraphs 45 and 46). That applies all the more where, as in the present case, it is clear from the wording of Article 67(2) of the Staff Regulations that it is not for the Commission to ask for information about the receipt of any family allowances of the same nature paid from other sources, but for members of staff to declare that they are in receipt of such allowances.
113. Secondly, rather than purporting to be satisfied with a personal interpretation of his situation, it was up to the applicant to raise that matter with the appointing authority (see, to that effect, judgments in Costacurta
v Commission, EU:T:1990:20, paragraph 40, and López Cejudo
v Commission, EU:F:2014:55, paragraph 78).
114. Moreover, the applicant cannot claim that in 2004 the PMO was fully aware of his wife’s situation. It is clear from Partena’s letter to the PMO of 28 August 2003 that that body had made payments to the applicant’s wife, even though the amounts are not specified. However, it is also clear from the letter from the PMO to Partena of 22 January 2004 that, on the contrary, at that date the PMO had understood from the vague terms of the letter of 28 August 2003 only that Partena was in the process of investigating the applicant’s wife’s entitlement, whereas, in reality, she was already receiving family allowances from the national body. Thus, through his inaction and silence, the applicant ultimately left the PMO with that incorrect belief, even after the letter of 9 November 2006 was sent by Partena to the applicant’s wife notifying her of her entitlement to Belgian family allowances.
– As regards the absence of any financial loss for the European Union budget and the absence of deliberate intent on the part of the applicant to receive undue benefits under the Staff Regulations
115. As regards the fact that the applicant, after learning of the opinion of the Disciplinary Board, undertook voluntarily to refund the sums overpaid during the period prior to September 2006, first, the Tribunal notes that the appointing authority took account of that in the contested decision from the point of view of the ‘scale of the loss caused to the Commission’s interests’ for the purposes of Article 10(b) of Annex IX to the Staff Regulations. Secondly, the Tribunal holds that that aspect should not be overstated since it does not alter the classification of the alleged infringement, which only came to light after a review by the Commission and not as the result of a declaration made, at the proper time, on the applicant’s own initiative.
116. For the sake of completeness, the Tribunal also states, with regard to case-law (see judgment in López Cejudo
v Commission, EU:F:2014:55, paragraph 67), that it could not necessarily be ruled out that, following an investigation to that effect, the Commission might in some other way have obtained enough evidence to rely on the second sentence of the second paragraph of Article 85 of the Staff Regulations. That is moreover what the Commission meant in its defence when it stated that the applicant’s cooperative gesture was welcomed since it avoided any discussion that might lead to separate legal proceedings, that is to say concerning whether that provision of the Staff Regulations applied.
117. As regards the absence of fraudulent intent, it must be stated that neither the Disciplinary Board nor the appointing authority found any such intent on the part of the applicant and they expressly took that absence of fraudulent intent into account when deciding on the penalty to be imposed on him. Nevertheless, the Tribunal notes that the reason given by the Disciplinary Board in order to justify that decision was the fact that there was not sufficient factual evidence on the file to demonstrate fraudulent intent, although the Disciplinary Board stated that it was ‘difficult to believe that [the applicant] had not been alerted by his wife to the payments of [EUR] 11 000 and [EUR] 5 500 which she [had] received in 2003 and 2005’.
118. For its part, the appointing authority found in the contested decision, ‘[s]o far as the extent to which the misconduct involve[d] intentional actions or negligence’, as referred to in Article 10(c) of Annex IX to the Staff Regulations, that the applicant’s misconduct involved ‘gross negligence’, namely an error which, although not pointing to deliberate intent to obtain financial gain at the expense of the European Union budget, was still hard to excuse, especially in view of the official’s duties and responsibilities, and his grade and seniority in the service of the Commission.
– Other allegedly extenuating circumstances
119. As for the applicant’s conduct in the service, the appointing authority stated that it had taken into account the fact that, except for the misconduct alleged in the present case, there had been no other misconduct on the part of the applicant in the course of his long career. However, as the Commission correctly stated at the hearing, the requirement to take that aspect into account, laid down in Article 10 of Annex IX to the Staff Regulations, does not necessarily mean that it should be regarded as an extenuating circumstance.
120. As regards the argument concerning the applicant’s professional and domestic workload, which was dismissed by the appointing authority in its decision rejecting the complaint, the fact remains that the overlapping of family benefits persisted for more than five years after Partena had formally notified the applicant’s wife of her entitlement to Belgian family allowances. Thus, in any event, the Tribunal considers that, although that argument might to some extent be taken into account in respect of a specified period, it did not justify negligence over such a long period of time.
121. As for the applicant’s allegedly exemplary cooperation noted in an e-mail of 29 March 2013 by the person in the PMO responsible for the recovery of overpayments, the Tribunal notes that, although the PMO official in charge of the initial investigation asked him, in February 2010, ‘[a]s soon as [he] received information from Partena, … to pass it to the PMO forthwith’, the applicant did not consider it necessary either to complete the declaration form entitled ‘Family allowances … received from other sources’ which that official had sent to him on that occasion or to provide a copy of the letter of 9 November 2006 from Partena, which was at that time already in his wife’s possession, or indeed of any other document subsequently issued by Partena. If the applicant had done so, that would have enabled the Commission to bring the investigation procedure to an end immediately. However, as a result of the applicant’s failure to act, more than 18 months passed before the Commission obtained the relevant information, by its own efforts, directly from Partena and not from the applicant, namely on 23 September 2011.
122. It follows from the above considerations that the appointing authority did not fail to take into account the relevant extenuating circumstances in the present case.
– The proportionality of the penalty imposed
123. As regards whether, in order to decide on the penalty at issue, the appointing authority weighed up any aggravating and mitigating circumstances proportionately, the Tribunal notes that Article 11 of the Staff Regulations specifically sets out the duty of loyalty requiring an official not just to refrain from conduct likely to prejudice the dignity and respect due to the institution and its authorities, but also to conduct himself, particularly if he is of senior grade, as in the present case, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (judgment in Andreasen
v Commission, F-40/05, EU:F:2007:189, paragraph 233 and the case-law cited).
124. In the light of the circumstances of the present case, the Tribunal holds, first, that the appointing authority was entitled to find that the applicant’s failure to declare that his wife was receiving Belgian family allowances over such a long period constituted ‘gross negligence’. Secondly, the penalty imposed does not appear to be disproportionate. In particular, in view of its broad discretion, the appointing authority was entitled to consider that the imposition of a penalty of deferment of advancement to a higher step for a period of 18 months, as recommended by the Disciplinary Board, was not adequate, especially in the present circumstances where, unlike the Disciplinary Board, the appointing authority, for its part, considered that the applicant not only infringed Article 67(2) of the Staff Regulations but also Article 11 of the Staff Regulations.
125. For completeness, the Tribunal holds that nothing in the wording of Article 10 of Annex IX to the Staff Regulations required the appointing authority to regard, as it did, the fact that the applicant was approaching retirement age as a circumstance justifying reduction of the penalty imposed. Hence, since that aspect was taken into account ex gratia when the decision was taken, the penalty ultimately adopted cannot, a fortiori, be regarded as disproportionate.
126. It is clear from all the above considerations that the appointing authority did not disregard certain extenuating circumstances and, as regards taking into account the various circumstances of the applicant’s case, did not weigh them up disproportionately when deciding on the penalty ultimately imposed on the applicant.
127. Consequently, the first plea must be rejected as unfounded.
Second plea: failure to state reasons
Arguments of the parties
128. In support of his second plea, the applicant maintains in essence, first, that, in the contested decision and in the decision rejecting the complaint, the appointing authority did not provide an adequate explanation of the reasons why it classed the applicant’s negligence as ‘gross’, inter alia by not giving, or giving very few, reasons why it decided not to acknowledge certain circumstances as being extenuating. Secondly, the appointing authority did not provide an adequate explanation of the reasons why it imposed on him a more severe penalty than that proposed by the Disciplinary Board.
129. The Commission contends that the plea should be rejected as unfounded.
Findings of the Tribunal
130. The obligation to state reasons laid down in Article 296 TFEU, recalled in Article 41(2)(c) of the Charter of Fundamental Rights of the European Union and reflected in the second paragraph of Article 25 of the Staff Regulations, is an essential principle of EU law, which is intended, first, to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision adversely affecting him is well founded and, secondly, to make it possible for the decision to be the subject of judicial review (see judgments in Michel
v Parliament, 195/80, EU:C:1981:284, paragraph 22; Lux
v Court of Auditors, 69/83, EU:C:1984:225, paragraph 16; and Camacho-Fernandes
v Commission, F-16/13, EU:F:2014:51, paragraph 111).
131. In disciplinary matters, the question whether the statement of grounds for the appointing authority’s decision imposing a disciplinary measure satisfies those requirements must be assessed in the light not only of its wording but also in that of its context and all the relevant legal rules. In that regard, although the Disciplinary Board and the appointing authority are required to set out the elements of fact and law forming the legal basis for their decisions and the considerations which led to their adoption, they are not required to discuss all the factual and legal points which were raised by the person concerned during the proceedings (judgment in Stevens
v Commission, T-277/01, EU:T:2002:302, paragraph 71). In any event, a decision is sufficiently reasoned where it is adopted in a context known to the official concerned, which enables him to understand the extent of the measure taken against him (judgment in N
v Commission, T-198/02, EU:T:2004:101, paragraph 70 and the case-law cited).
132. If the penalty imposed on the official concerned is ultimately more severe than that suggested by the Disciplinary Board, the appointing authority’s decision must clearly state the reasons which led that authority to depart from the opinion issued by that board (judgments in F
v Commission, 228/83, EU:C:1985:28, paragraph 35, and N v Commission, EU:T:2004:101, paragraph 95 and the case-law cited).
133. In the present case, the Tribunal notes that in the contested decision the appointing authority examined the circumstances of the present case in the light of each of the relevant aspects referred to in Article 10 of Annex IX to the Staff Regulations. Moreover, in the decision rejecting the complaint, it answered in detail the various arguments put forward by the applicant.
134. As regards whether the appointing authority provided an adequate explanation of the reasons why it classed the applicant’s negligence as ‘gross’, the Tribunal notes that the appointing authority had already examined in detail in the contested decision the scope of the duty to take due care incumbent on officials and had explained, to the requisite legal standard, that the fact of allowing the overlapping of national family benefits and family benefits under the Staff Regulations to persist for a number of years, as in the present case, owing to failure to make a declaration, as was required of the official, could not be anything other than gross negligence, failing which it should or could be classed as deliberate infringement of Articles 11 and 67(2) of the Staff Regulations. In the decision rejecting the complaint, the appointing authority again gave a clear explanation of that aspect in response to the applicant’s arguments, despite the fact that the contested decision and the decision rejecting the complaint constituted the culmination of proceedings, the details of which were well known to the applicant (see, to that effect, judgment in Commission
v Daffix, C-166/95 P, EU:C:1997:73, paragraph 34).
135. As regards the fact that the appointing authority imposed on the applicant a more severe penalty than that recommended by the Disciplinary Board, it is clear, inter alia from the decision rejecting the complaint, that the appointing authority explained the main reason why it considered that it was appropriate to increase the penalty proposed by the Disciplinary Board, namely that, unlike the Board, it did not regard the PMO’s inaction as an extenuating circumstance. As was found in the course of examining the first plea, the appointing authority was entitled to decide not to regard that aspect as an extenuating circumstance, and that was at the same time already sufficient in itself to explain its decision to impose a penalty that was more severe than that recommended by the Disciplinary Board.
136. Moreover, still in connection with the increased severity of the penalty imposed in relation to that proposed by the Disciplinary Board, the Tribunal notes that the appointing authority intended, in the contested decision, to penalise a breach of Articles 11 and 67(2) of the Staff Regulations, whereas the penalty proposed by the Disciplinary Board related only to a breach of the latter article.
137. In view of the above, the second plea must be rejected as unfounded and, in consequence, the action must be dismissed in its entirety.
Costs
138. Pursuant to Article 101 of the Rules of Procedure, subject to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to bear his own costs and is to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Under Article 102(1) of those Rules, if equity so requires, the Tribunal may decide that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs.
139. It is apparent from the reasons set out in the present judgment that the applicant has been unsuccessful. In addition, in its pleadings, the defendant has expressly asked for the applicant to be ordered to pay the costs. Since the circumstances of the present case do not warra nt application of Article 102(1) 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 EH is to bear his own costs and orders him to pay the costs incurred by the European Commission.