JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)

1 October 2014 ( )

(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)

In Case F-91/13,

ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,

DF, official of the European Commission, residing in Brussels (Belgium), represented by L. Levi and A. Blot, lawyers,

applicant,

v

European Commission, represented initially by J. Currall and V. Joris, acting as Agents, and subsequently by J. Currall, acting as Agent,

defendant,

THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

composed of S. Van Raepenbusch, President, R. Barents (Rapporteur) and K. Bradley, Judges,

Registrar: X. Lopez Bancalari, Administrator,

having regard to the written procedure and further to the hearing on 30 April 2014,

gives the following

Judgment

1 By application lodged at the Tribunal Registry on 19 September 2013, DF brought the present action seeking, inter alia, the 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.

Legal context

2 The present case arises in the legal context of Article 41 of the Charter of Fundamental Rights of the European Union, entitled ‘Right to good administration’, paragraph 2(a) of which specifies that the right to good administration includes, inter alia, ‘the right of every person to be heard, before any individual measure which would affect him or her adversely is taken’; Article 85 of the Staff Regulations of Officials of the European Union, in the version applicable to the action in the main proceedings (‘the Staff Regulations’), concerning the recovery of overpayments, and Articles 4 and 7 of Annex VII to the Staff Regulations concerning, respectively, the expatriation allowance and travel expenses and the fixing of an official’s place of origin.

Background to the dispute

3 The applicant, who is a German national, lived in Munich (Germany) until 1995 and subsequently, until 2001, in Maastricht (the Netherlands). At the time the present action was brought, he was classified at grade AD 10.

4 On 1 May 2001, the applicant was recruited as an official at the Commission in Brussels (Belgium). When he took up his duties, his place of origin was initially established as Maastricht, then corrected, in response to his request, and established as Munich. From that date he received the expatriation allowance and annual travel expenses.

5 From 1 September 2009 to 31 August 2012 he was placed on secondment, in the interests of the service, in the Bayerische Staatskanzlei (Bavarian State Chancellery) in Germany. From 1 September 2012, he resumed his duties in Brussels.

6 On 20 December 2012, the Commission sent a note to the applicant (‘the contested decision’) informing him that, following a review, the expatriation allowance and annual travel expenses paid to him during his secondment in Germany were considered to have been unduly received and had to be recovered under Article 85 of the Staff Regulations. The total amount to be recovered was EUR 55 420.77.

7 On 27 February 2013, the applicant lodged a complaint against the contested decision. By decision of 24 June 2013, the complaint of 27 February 2013 was rejected (‘the decision rejecting the complaint’).

Forms of order sought

8 The applicant claims that the Tribunal should:

– annul the contested decision;

– annul the decision rejecting the complaint;

– order the reimbursement of the sum already recovered, together with default interest;

– order the Commission to compensate him for the non-material harm suffered, assessed at EUR 5 000:

– order the Commission to pay the costs.

9 The Commission contends that the Tribunal should:

– dismiss the action;

– order the applicant to pay the costs.

Law

1. The claim for annulment of the decision rejecting the complaint

10 It should be noted that, according to established case-law, claims for annulment formally brought against a decision to reject a complaint have, where that decision lacks any independent content, the effect of bringing before the Tribunal the act against which the complaint was submitted (judgment in Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8). Since the decision rejecting the complaint lacks any independent content, the action must be regarded as being directed against the contested decision.

2. The claim for annulment of the contested decision

11 In support of the action, the applicant relies on one main plea in law alleging infringement of Article 4(1)(b) and Article 7(3) of Annex VII to the Staff Regulations and a manifest error of assessment, and a plea in the alternative, alleging infringement of Article 85 of the Staff Regulations, of the principle of legal certainty, the principle of unjust enrichment, the principle of good administration and due diligence.

The main plea in law, alleging infringement of Article 4(1)(b) and Article 7(3) of Annex VII to the Staff Regulations and a manifest error of assessment

As regards infringement of Article 4(1)(b) of Annex VII to the Staff Regulations

– Arguments of the parties

12 The applicant notes that the wording of the provisions of Article 4(1)(b) of Annex VII to the Staff Regulations is so vague that it is not clear whether, in a case such as the present, the reference period to be taken into consideration ends on the date of the initial entry into service, in this case on 1 May 2001, or on the date of taking up duty with the entity to which he was seconded, in this case on 1 September 2009. However, the applicant acknowledges that according to settled case-law the concept of entry into service, to which those provisions refer, is to be construed as the initial entry into service.

13 Again according to the applicant, if it were accepted that the 10-year reference period referred to in Article 4(1)(b) of Annex VII to the Staff Regulations ends on the date of the initial entry into service, that would defeat the object of the expatriation allowance, which is, specifically, to compensate officials for the expense and inconvenience of taking up employment with the European Union and being thereby obliged to change their residence and move to the country of employment and to integrate themselves in their new environment. In the present case, there is no doubt that the applicant had no longer had his particular connection with Germany for almost 20 years and had transferred the permanent centre of his interests to Belgium 8 years prior to the beginning of his secondment. This reasoning is also exactly in line with the recent jurisprudence concerning the purpose of the expatriation allowance as it appears from a judgment of the Administrative Tribunal of the International Labour Organisation of 8 July 2010 in the case Mr R. S. v European Patent Organisation (Judgment No 2925, Digest of the 109th session). According to the applicant, refusing the benefit of the expatriation allowance for an official on secondment, on the ground that the 10-year reference period was determined before the initial entry in service, could constitute an obstacle to the mobility of the official concerned.

14 The Commission contends that the first part of the main plea in law should be rejected.

– Findings of the Tribunal

15 By the first part of the main plea, the applicant claims, in essence, that in his case the ‘[10] years ending at the date of [his] entering the service’, to which Article 4(1)(b) of Annex VII to the Staff Regulations refers, expired on 1 September 2009, the date on which he was seconded to Germany in the interest of the service, and not on 1 May 2001, the date on which he was recruited as an official by the Commission.

16 That part of the main plea must be rejected.

17 As the applicant himself acknowledges, it is settled case-law that 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, to that effect, judgments in Magdalena Fernández v Commission, T-90/92, EU:T:1993:78, paragraph 32; B v Commission, F-7/06, EU:F:2007:129, paragraph 39; Cavallaro v Commission, F-108/05, EU:F:2007:164, paragraph 71; and Blais v ECB, F-6/08, EU:F:2008:160, paragraph 67).

18 It follows that, in the case of the applicant, the 10-year period ended on 1 May 2001, the date on which he was recruited as an official by the Commission, so that the period from 1 September 2009 to 31 August 2012 cannot be included in the reference period referred to in Article 4(1)(b) of Annex VII to the Staff Regulations.

19 That conclusion is not called into question by the factual and legal circumstances relied on by the applicant in support of his main argument.

20 As regards, first, the alleged verbal assurances obtained from the services of the Commission according to which he would retain the expatriation allowance during the period of his secondment in Germany, it should be noted that the assertions of the applicant are not supported by any factual evidence, such as the date of the conversation during which he obtained such assurances, the name of the person who provided that information, or even the exact wording of his request or of the reply received (order in Van Oost v Commission, F-137/12 to F-139/12 and F-141/12, EU:F:2013:213, paragraph 29).

21 Furthermore, even assuming that the applicant had obtained a verbal assurance from the services of the Commission that he would retain his expatriation allowance during the period of his secondment, such an undertaking could not have given rise to a legitimate expectation, since promises which do not take account of the provisions of the Staff Regulations cannot give rise to legitimate expectation on the part of the person to whom they are made (judgments in Vlachou v Court of Auditors, 162/84, EU:C:1986:56, paragraph 6, and Chomel v Commission, T-123/89, EU:T:1990:24, paragraph 30).

22 Next, with regard to the reference to the case-law of the Administrative Tribunal of the International Labour Organisation, it suffices to note that, in any event, that case-law has no bearing on the interpretation of Article 4(1)(b) of Annex VII to the Staff Regulations.

23 Finally, the argument that expiry of the 10-year period referred to in Article 4(1)(b) of Annex VII to the Staff Regulations on the date of initial entry into service constitutes an obstacle to the mobility of the official cannot justify a derogation from a binding rule of the Staff Regulations.

24 The first part of the main plea in law is therefore unfounded.

Infringement of Article 7(3) of Annex VII to the Staff Regulations and manifest error of assessment

25 With regard to annulment of the contested decision in so far as it concerns recovery of the reimbursement of annual travel expenses, the applicant merely relies on infringement of Article 7(3) of Annex VII to the Staff Regulations without expounding any arguments in that regard.

26 It is to be noted that that provision does not concern reimbursement of annual travel expenses, but the fixing of the official’s place of origin.

27 It must therefore be held that with regard to the alleged infringement of Article 7(3) of Annex VII to the Staff Regulations, and the alleged manifest error of assessment that is only referred to in the title of the main plea in law, the application does not comply with the requirements of Article 35(1)(e) of the Rules of Procedure in force on the date when the present action was brought. Consequently, that second part of the main plea in law is inadmissible.

28 It follows that the main plea in law must be rejected as being in part unfounded and in part inadmissible.

The plea in the alternative, alleging infringement of Article 85 of the Staff Regulations, of the principle of legal certainty, the principle of unjust enrichment, the principle of good administration and due diligence

Arguments of the parties

29 This plea consists of four heads of challenge. By the first head of challenge, the applicant argues that, in his case, the condition set out in Article 85 of the Staff Regulations, that the overpayment is to be recovered if the recipient was aware of the irregularity or if the irregularity was patently such that he could not have been unaware of it, was not met. In that regard, he relies first on the verbal assurances that he obtained before his secondment that he would retain his expatriation allowance. Secondly, in the present case, the case-law criterion of the ‘official exercising ordinary care’ was not met. According to the applicant, it is apparent from the judgment in Cavallaro v Commission (EU:F:2007:164), and in particular paragraph 66 thereof, such an irregularity is not evident. Finally, also according to the applicant, requiring officials in general to be aware of all the case-law of the European Union Courts would, in practice, be impossible.

30 By his second head of challenge, the applicant claims that he concluded a maintenance settlement with his former wife on the basis that he would continue to receive the expatriation allowance. However, a recovery payment from his former wife is not possible since, under German civil law, the doctrine of unjust enrichment does not exist anymore. According to the applicant, the same approach should be applied as regards his relationship with the Commission.

31 By his third head of challenge, the applicant alleges that the Commission failed to comply with the reasonable time-limit that the administration is required to observe for withdrawal of an unlawful administrative decision, noticing its error only three years after the beginning of his secondment. Such conduct is not in line with the principle of good administration and due diligence.

32 By his fourth head of challenge, the applicant alleges that the Commission infringed the right to be heard, as set out in Article 41(2)(c) of the Charter.

33 The Commission contends that the plea in the alternative should be dismissed.

Findings of the Tribunal

34 In order to respond to the first head of challenge, it suffices to consider whether, in the present case, the irregularity was patently such that the applicant could not have been unaware of it.

35 In that regard, it should be noted that 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 (judgments in Stempels v Commission, 310/87, EU:C:1989:9, paragraph 10; Maslias v Parliament, T-92/94, EU:T:1996:70, paragraph 60; Jensen v Commission, T-156/96, EU:T:1998:174, paragraph 63; Barth v Commission, T-348/00, EU:T:2001:144, paragraph 29; and Gussetti v Commission, T-312/02, EU:T:2004:102, paragraph 82).

36 The applicant’s argument based on paragraph 66 of the judgment in Cavallaro v Commission (EU:F:2007:164), according to which the irregularity was not patently such that he could not have been unaware of it, must be rejected. As observed in paragraph 17 of the present judgment, the judgment in Cavallaro v Commission (EU:F:2007:164) unambiguously confirms, in paragraph 71 thereof, that the 10-year period referred to in Article 4(1)(b) of Annex VII to the Staff Regulations always expires at the date of the initial entry into service.

37 In any event, an experienced official, with the applicant’s grade and exercising ordinary care, could not have been unaware that payment of the expatriation allowance depended 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 (order in Gouvras v Commission, C-420/04 P, EU:C:2005:482, paragraph 59).

38 It must also be observed that, although, as has already been pointed out, the applicant alleges that he obtained verbal assurances from the services of the Commission that he would retain his expatriation allowance during the period of his secondment, those services, however, allegedly refused to confirm this in writing even though he claims to have requested such confirmation from them. The applicant therefore had doubts regarding the retention of his expatriation allowance during the period of his secondment. Faced with such a 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. Such verification was all the more necessary in the case of the applicant since, he claims, the accuracy of the assurances received was of great importance for the negotiations and judicial proceedings with his former wife that were then in progress.

39 The second head of challenge is ineffective. The obligation under the first paragraph of Article 85 of the Staff Regulations to recover overpayments does not take into account the possible consequences for the official concerned where that official could not have been unaware of the irregularity of the payment.

40 As regards the third head of challenge, it suffices to note that the present case does not concern the withdrawal of an unlawful decision, as the Commission did not make a formal decision to pay the applicant the expatriation allowance during his secondment in Germany. Moreover, it is undisputed that, in the present case, the Commission complied with the five-year period within which the claim for recovery of sums overpaid must be made, as set out in the second paragraph of Article 85 of the Staff Regulations.

41 With regard to the fourth head of challenge, it should be noted that, under Article 41(2)(a) of the Charter, and not Article 41(2)(c) as the applicant wrongly indicated in his application, every person has the right to be heard before any individual measure which would affect him or her adversely is taken.

42 It should be pointed out that the applicant was not afforded the opportunity to present his observations and provide explanations before the adoption of the contested decision.

43 Consequently, the Commission must be held to have infringed the applicant’s right to a proper hearing.

44 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 (judgment in CH v Parliament, F-129/12, EU:F:2013:203, paragraphs 33 and 38).

45 In the present case, it is undisputed that the observations submitted by the applicant to the Tribunal contain no material over and above that already available to the Commission and of which the applicant was aware. In those circumstances, the fact that the applicant was not afforded the opportunity to submit his observations before the adoption of the contested decision was not such as to influence the content of that decision, which could not in any case have been different, as is apparent from the explanations set out above.

46 Consequently, failure to comply with the applicant’s right to a hearing before the adoption of the contested decision cannot, of itself, be held to justify annulment of that decision.

47 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. That issue is examined in paragraphs 56 and 57 of this judgment.

48 In view of all the foregoing, the plea in the alternative must be rejected.

49 Since the main plea in law and the plea in the alternative have been rejected, the application for annulment must be dismissed.

3. The claim for repayment of the recovered sum

50 It is settled case-law that the Courts of the European Union have no jurisdiction to issue injunctions to the institutions (judgment in V v Parliament, F-46/09, EU:F:2011:101, paragraph 63 and the case-law cited).

51 In an action brought under Article 91 of the Staff Regulations, heads of claim requesting the Tribunal to address injunctions to the administration or to recognise the validity of certain pleas in law relied on in support of a claim for annulment are manifestly inadmissible, since it is not for the European Union judicature to issue injunctions to the institutions of the European Union or to make statements of law in the abstract. That applies to claims requesting the Tribunal to establish the existence of certain facts and to instruct the administration to adopt measures such as to reinstate the person concerned in their rights (order in Palou Martínez v Commission, F-11/10, EU:F:2010:69, paragraphs 29 to 31).

52 Consequently, the head of claim by which the applicant seeks repayment of the sum already recovered, together with default interest, must be dismissed as inadmissible.

4. The claim for damages

Arguments of the parties

53 The applicant requests that the Commission be ordered to pay him EUR 5 000 by way of compensation for non-material harm suffered by him as a result of the administration’s negligence and lack of care.

54 The Commission contends that the claim for damages should be dismissed.

Findings of the Tribunal

55 It is apparent from paragraph 43 of the present judgment that the Commission infringed the right of the applicant to be properly heard before the adoption of the contested decision, the arguments for annulment having nevertheless been dismissed.

56 It is undeniable that the applicant suffered non-material harm as a result of feeling that he had been presented with a fait accompli.

57 In the light of the circumstances of the case, the Tribunal, assessing the damage suffered ex aequo et bono, considers that an award of EUR 1 500 constitutes adequate compensation to the applicant. The applicant’s claim for compensation must be rejected as to the remainder, having regard to the rejection of the claims seeking annulment to which it is closely linked.

Costs

58 Under Article 101 of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to 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.

59 In the present case, since the applicant has, essentially, failed in his action and the Commission has applied for costs, the applicant should, in principle, pay all of the costs. However, the Tribunal notes that the applicant was not heard before the adoption of the contested decision. That circumstance is not such as to make the contested decision irregular, but the fact remains that by so doing, the Commission did not comply with the applicant’s right to be heard. Consequently, the Commission should be ordered to bear its own costs and to pay one quarter of the costs incurred by the applicant, the latter bearing three quarters of his own costs.

On those grounds,

THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

hereby:

1. Orders the European Commission to pay DF the sum of EUR 1 500 in compensation for non-material harm suffered by him;

2. Dismisses the action as to the remainder;

3. Declares that the European Commission is to bear its own costs and orders it to pay one quarter of the costs incurred by DF;

4. Declares that DF is to bear three quarters of his own costs.

Van Raepenbusch Barents Bradley

Delivered in open court in Luxembourg on 1 October 2014.

W. Hakenberg S. Van Raepenbusch