JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

1 October 2014

Case F‑91/13

DF

v

European Commission

(Civil service — Remuneration — Expatriation allowance — Travel expenses — Secondment of the applicant in a country of which he is a national — Condition set out in Article 4(1)(b) of Annex VII to the Staff Regulations)

Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which DF seeks, inter alia, annulment of the decision of the European Commission of 20 December 2012 ordering the recovery of the expatriation allowance and annual travel expenses which he received during his secondment in Germany, between 1 September 2009 and 31 August 2012, the repayment of the amounts that have already been recovered and damages.

Held: The European Commission is ordered to pay DF the sum of EUR 1 500 in compensation for non-material harm suffered by him. The remainder of the action is dismissed. The European Commission is to bear its own costs and is ordered to pay one quarter of the costs incurred by DF. DF is to bear three quarters of his own costs.

Summary

1. Officials — Remuneration — Expatriation allowance — Conditions for granting — Habitual residence outside the Member State of employment during the reference period — Reference period — Determination of expiry date where official is on secondment — Date of the initial entry into service

(Staff Regulations, Annex VII, Art. 4(1)(b))

2. Officials — Recovery of undue payments — Conditions — Patent overpayment — Criteria

(Staff Regulations, Art. 85)

3. Officials — Principles — Rights of defence — Obligation to hear the person concerned before adopting an act adversely affecting him — Scope — Infringement — Consequences

(Charter of Fundamental Rights of the European Union, Art. 41(2)(a))

1. As regards the conditions for granting the expatriation allowance where an official is on secondment, the 10-year period referred to in Article 4(1)(b) of Annex VII to the Staff Regulations always expires on the date of initial entry into service.

(see para. 17)

See:

judgment in Magdalena Fernández v Commission, T‑90/92, EU:T:1993:78, para. 32

judgments in B v Commission, F‑7/06, EU:F:2007:129, para. 39; Cavallaro v Commission, F‑108/05, EU:F:2007:164, para. 71; and Blais v ECB, F‑6/08, EU:F:2008:160, para. 67

2. As regards the conditions for recovering undue payments, the words ‘patently such’, used of the irregularity of the payment, in Article 85 of the Staff Regulations do not mean that the official in receipt of an undue payment does not need to make any effort to reflect or check, but means 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.

Thus, an experienced official, of a high grade and exercising ordinary care, cannot be unaware that payment of the expatriation allowance depends on expatriation within the meaning of Article 4 of Annex VII to the Staff Regulations, and there is no expatriation where an official is seconded in order to carry out duties in the country of which he is a national.

Also, faced with the administration’s refusal to confirm in writing what was said orally, an experienced official, of a high grade and exercising ordinary care is required to verify the accuracy of such verbal assurances by sending, for example, an application in writing to the administration pursuant to Article 90(1) of the Staff Regulations.

(see paras 35, 37, 38)

See:

judgment in Stempels v Commission, 310/87, EU:C:1989:9, para. 10; and order in Gouvras v Commission, C‑420/04 P, EU:C:2005:482, para. 59

judgments in Maslias v Parliament, T‑92/94, EU:T:1996:70, para. 60; Jensen v Commission, T‑156/96, EU:T:1998:174, para. 63; Barth v Commission, T‑348/00, EU:T:2001:144, para. 29; and Gussetti v Commission, T‑312/02, EU:T:2004:102, para. 82

3. Under Article 41(2)(a) of the Charter of Fundamental Rights of the European Union every person has the right to be heard before any individual measure which would affect him or her adversely is taken.

However, for an infringement of the right to be heard to result in the annulment of a decision, it is also necessary to consider whether, in the absence of that irregularity, the procedure might have led to a different result.

Consequently, where the fact that the person concerned was not afforded the opportunity to present his observations and provide explanations before the adoption of a decision to recover sums unduly paid was not such as to influence the content of that decision, infringement of the person’s right to a hearing cannot, of itself, justify annulment of that decision. It nevertheless remains the case that the administration, for that very reason, committed an unlawful act that constituted maladministration on its part capable of giving rise to compensation.

(see paras 41-47)

See:

judgment in CH v Parliament, F‑129/12, EU:F:2013:203, paras 33 and 38