JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

5 February 2016

Hilde Bulté and Tom Krempa

v

European Commission

‛Civil service — Surviving dependants of a deceased former official — Pensions — Survivors’ pensions — Article 85 of the Staff Regulations — Recovery of overpayment — No due reason for the payment — Patent overpayment — None’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Bulté and Mr Krempa essentially seek annulment of the decision of the European Commission of 22 November 2013 to modify, with retroactive effect from 1 August 2010, the pensions paid to them in their capacity as the surviving dependants of a deceased former official and to recover the sums overpaid to them since that date.

Held:

The decision of the European Commission of 22 November 2013, as set out in the opinion of the Office for the Administration and Payment of Individual Entitlements of the same day, to modify, with retroactive effect from 1 August 2010, the pensions paid to Ms Bulté and Mr Krempa in their capacity as the surviving dependants of a deceased former official and to recover the sums overpaid to them from 1 August 2010 until November 2013 is annulled. The European Commission is ordered to reimburse Ms Bulté and Mr Krempa for the sums levied on their respective pensions pursuant to the decision referred to in paragraph 1 of this operative part. Each party is ordered to bear its own costs.

Summary

Officials — Recovery of overpayments — Conditions — Patent overpayment — Criteria

(Charter of Fundamental Rights of the European Union, Art. 41; Staff Regulations, Art. 85)

It is clear from the first paragraph of Article 85 of the Staff Regulations that, for a sum paid without justification to be recovered, evidence must be produced to show that the recipient was actually aware that there was no due reason for the payment or that the fact of the overpayment was patently such that he could not have been unaware of it.

The phrase ‘patently such’ relating to overpayment within the meaning of the first paragraph of Article 85 of the Staff Regulations does not mean that an official who receives undue payments need make no effort to reflect or check but rather that recovery is due where the error is one which does not escape the notice of an official exercising ordinary care . Just as an official has a personal interest in checking the payments made to him every month, a person receiving a survivor’s pension must also fulfil a duty of diligence and is deemed to be familiar with the rules governing the financial benefits to which he is entitled.

Furthermore, it is not necessary for the person 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.

The right of the EU institutions, recognised in Article 85 of the Staff Regulations, to recover overpayments must be weighed against their obligation to ensure the right of individuals to sound administration. That right, enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, involves a duty of diligence which requires the competent institution to examine and deal carefully and attentively with files relating to the pecuniary rights of individuals, including survivors’ pensions.

(see paras 46, 48, 50, 51)

See:

Judgment of 11 July 1979 in Broe v Commission, 252/78, EU:C:1979:186, para. 13

Judgments of 5 November 2002 in Ronsse v Commission, T‑205/01, EU:T:2002:269, para. 46, and 29 September 2005 in Thommes v Commission, T‑195/03, EU:T:2005:344, para. 124

Judgments of 9 September 2008 in Ritto v Commission, F‑18/08, EU:F:2008:110, paras 29 and 31, and 21 November 2013 in Roulet v Commission, F‑72/12 and F‑10/13, EU:F:2013:184, paras 46, 48 and 50