An official's action is admissible whether it is directed against the initial decision alone, the decision rejecting the complaint or both, provided that the complaint and the appeal were brought within the periods prescribed by Articles 90 and 91 of the Staff Regulations. Those time-limits are intended to ensure legal certainty. They are therefore a matter of public policy and cannot be left to the discretion of the parties or the Court. The fact that an institution, for reasons related to its staff policy, deals with the substance of an administrative complaint which is submitted out of time does not have the effect of derogating from the system of mandatory time-limits laid down in Articles 90 and 91 of the Staff Regulations, or of depriving the administration of its right at the stage of court proceedings to raise an objection of inadmissibility on the ground that the complaint was out of time.

Under Article 85 of the Staff Regulations, ‘[a]ny sum overpaid shall be recovered if the recipient was aware that there was no due reason for the payment or if the fact of the overpayment was patently such that he could not have been unaware of it’. It is the responsibility of the administration to prove that the recipient was aware of the absence of any due reason for the payment in question. If the recipient denies that he was aware of the fact that there was no due reason for the payment, the circumstances in which the payment at issue was made must be examined in order to establish whether the fact that there was no due reason for that payment was patently such that the recipient could not have been unaware of it.

The phrase ‘patently such’ must be interpreted as meaning that it is not a question of knowing whether or not the error was obvious to the administration, but whether it was obvious to the person concerned. The latter, far from not needing to make any effort to reflect or check, is, on the contrary, required to make repayment where the error is one which does not escape the notice of an official exercising ordinary care, who is deemed to know the rules governing his salary.

In that regard, it is not necessary for the official concerned, in the exercise of his duty of diligence, to be able to determine the precise extent of the error made by the administration. On the contrary, the fact that he has doubts about the validity of the payments in question is sufficient for him to be obliged to contact the administration so that it can carry out the necessary checks. It follows that an official who receives a household allowance, who is in possession of all the relevant information, that is to say, his spouse's earned income and the annual ceilings specified in the administrative notices sent to all officials, is in a position, by exercising ordinary care, to be aware of the error made by the administration in the payment of his household allowance from the time of his entry into service.

(see paras 36-38, 40-42)

See: 142/78 Berghmans v Commission [1979] ECR 3125, para. 9; T-122/95 Chabert v Commission [1996] ECRSC I-A-19 and II-63, para. 35; T-156/96 Jensen v Commission [1998] ECRSC I-A-411 and II-1173, para. 63, and the case-law cited therein