JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

27 January 2016

DF

v

European Commission

‛Appeal — Civil service — Officials — Remuneration — Secondment in the interest of the service — Expatriation allowance — Condition set out in Article 4(1)(b) of Annex VII to the Staff Regulations — Recovery of undue payments’

Appeal:

against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 1 October 2014 in DF v Commission (F‑91/13, ECR-SC, EU:F:2014:228), seeking to have that judgment set aside in part.

Held:

The appeal is dismissed. Mr DF shall bear his own costs as well as those incurred by the European Commission in relation to the appeal.

Summary

Privileges and immunities of the European Union — Officials and other servants of the European Union — Subject to national law as regards legal relationships connected with their private lives

Actions brought by officials — Request under Article 90(1) of the Staff Regulations — Request validly before the administration whether or not there is a legal basis for the decision in question

Officials — Remuneration — Expatriation allowance — Conditions for granting — Official not having his habitual residence or carrying on his main occupation in the place of employment prior to entry into service

In relation to the conditions for recovery of undue payment, two factors must be taken into account when examining whether the irregularity of a payment within the meaning of the first paragraph of Article 85 of the Staff Regulations was patently such that the official could not have been unaware of it, that is, the clarity of the applicable provisions, on the one hand, and the grade and experience of the official, on the other. In this regard, the words ‘patently such’ do not mean that the official in receipt of an undue payment does not need to make any effort to reflect or check, but that repayment is required where the error is one which would not escape the notice of an official exercising ordinary care, who is deemed to know the rules governing his salary. The factors taken into consideration by the Courts of the European Union in assessing the ability of the official concerned to make the necessary checks concern his level of responsibility, grade and seniority, the degree of clarity of the provisions of the Staff Regulations setting out the conditions for grant of the benefit at issue and the significance of the changes in his personal or family circumstances where payment of the sum at issue is linked to an assessment of such circumstances by the administration. Moreover, it is not necessary for the official concerned, in the exercise of his duty of diligence, to be able to determine the precise extent of the error made by the administration. The fact that he has doubts about the validity of the payments in question is sufficient for him to be obliged to contact the administration so that it can carry out the necessary checks. (see paras 25-28) See: Judgments of 29 September 2005 in Thommes v Commission, T‑195/03, ECR‑SC, EU:T:2005:344, paras 123 and 124 and the case-law cited therein, and 16 May 2007 in F v Commission, T‑324/04, ECR-SC, EU:T:2007:140, para. 145 and the case-law cited therein

The wording of Article 4(1)(b) of Annex VII to the Staff Regulations enables an official exercising ordinary care to understand its scope and to conclude that the 10-year period referred to in that provision ends before entry into service with the employer institution, particularly since that provision has long been the subject of coherent and consistent interpretation by the Courts of the European Union. In any event, that provision is both clear and precise and allows it to be easily understood that the ten-year reference period in question seeks only to determine under what conditions, when an official who is a national of the State in whose territory the place where he is employed is situated enters into service, the expatriation allowance may be paid to that official. The fact that Article 4 of Annex VII to the Staff Regulations does not govern a specific situation, such as whether an official is entitled to expatriation allowance in the event of secondment in a country of which he is a national, cannot be considered to infringe the principle of legal certainty, since that provision establishes in general and abstract terms the criteria on the basis of which that allowance may be granted in each individual situation. (see paras 30, 47, 48) See: Order of 14 July 2005 in Gouvras v Commission, C‑420/04 P, ECR, EU:C:2005:482, paras 57 and 60 Judgment of 28 September 1993 in Magdalena Fernández v Commission, T‑90/92, ECR, EU:T:1993:78, para. 32

Article 90(1) of the Staff Regulations provides, without restriction, that any person to whom the Staff Regulations apply may submit to the appointing authority a request that it take a decision relating to him. The exercise of that right is not conditional on the existence of any legal basis permitting the administration to adopt the decision requested; nor is it hindered by the fact that the administration has no margin of discretion as regards its adoption. (see para. 41) See: Judgment of 16 October 1980 in Hochstrass v Court of Justice, 147/79, ECR, EU:C:1980:238, paras 2 to 4

The principle of legal certainty is a fundamental principle of EU law which requires, in particular, that rules should be clear and precise, so that individuals may be able to ascertain unequivocally what their rights and obligations are and may take steps accordingly (see para. 45) See: Judgment of 14 April 2005 in Belgium v Commission, C‑110/03, ECR, EU:C:2005:223, para. 30 and the case-law cited therein

Where the conditions for the recovery of undue payments provided for in the first paragraph of Article 85 of the Staff Regulations are met, the employer institution must recover the amounts unduly received from the European Union, and there is nothing in that provision which provides for any exception in that regard. Furthermore, it is clear from the wording of Article 85 of the Staff Regulations that it relates only to the financial relationship between an official who has received overpayments and the employer institution. Moreover, that provision does not take into account the possible consequences of the recovery for the official with regard to other persons who may have benefited directly or indirectly from the overpayments subject to recovery by the employer institution, these being matters of private law. (see paras 53, 54)