JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

30 April 2014

Case F‑28/13

José Manuel López Cejudo

v

European Commission

(Civil service — Investigation by the European Anti-Fraud Office (OLAF) — Daily subsistence allowance — Article 10 of Annex VII to the Staff Regulations — Recovery of amounts unduly paid — Deductions from remuneration — Article 85 of the Staff Regulations — Intention to mislead the administration — Reasonable time-limit)

Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr López Cejudo seeks, principally, annulment of the note of 6 July 2012 by which the appointing authority of the European Commission informed the applicant of its decision to recover the daily subsistence allowances, plus interest, which he had received in 1997 and 1998, and annulment of the decision of 17 December 2012 by which the appointing authority rejected the applicant’s complaint relating to those allowances (‘the decision rejecting the complaint’).

Held: The action is dismissed. Mr López Cejudo is to bear his own costs and is ordered to pay the costs incurred by the European Commission.

Summary

1. Officials — Decision adversely affecting an official — Obligation to state reasons — Scope

(Art. 296, second para., TFEU; Staff Regulations, Art. 25, second para.)

2. Officials — Reimbursement of expenses — Daily subsistence allowance — Conditions for granting

(Staff Regulations, Arts 20 and 71; Annex VII, Art. 10(2))

3. Officials — Recovery of undue payments — Conditions — Patent overpayment — Known by the official concerned — Criteria

(Staff Regulations, Art. 85; Annex VII, Art 10)

4. Officials — Recovery of undue payments — Limitation period — Member of staff having deliberately misled the administration — Limitation period not enforceable against the administration — Infringement of the duty to have regard for the welfare of staff — None

(Staff Regulations, Arts 11, 71 and 85, second para.)

1. The requirement laid down in Article 296, second paragraph, TFEU, which is also contained in the second paragraph of Article 25 of the Staff Regulations, is intended to enable the Tribunal to exercise its review of the legality of decisions adversely affecting officials and to provide those concerned with sufficient information to ascertain whether those decisions are well founded or whether they are subject to a defect enabling their legality to be challenged. It follows that the statement of reasons must in principle be notified to the person concerned at the same time as the decision adversely affecting him. Where the appointing authority has provided an adequate statement of reasons in the decision rejecting the complaint, and that decision confirms the note by which the appointing authority informed the applicant of the decision to recover daily subsistence allowances from him, the legality of the original act adversely affecting him must be examined taking account of the statement of reasons in the decision rejecting the complaint, since that statement of reasons is deemed to supplement that act. The reasons given for a decision are sufficient if the measure forming the subject-matter of the action was adopted in circumstances which are known to the official concerned, such as those resulting from the various hearings of the applicant before the European Anti-Fraud Office, and enable him to understand its scope. That is particularly true where the detailed nature of the applicant’s complaint reflects his understanding of the reasons why the Commission decided, through its note, to recover the daily subsistence allowances at issue.

(see paras 34, 36-38)

See:

26 November 1981, 195/80 Michel v Parliament, para. 22; 7 March 1990, C‑116/88 and C‑149/88 Hecq v Commission, para. 26; 28 February 2008, C‑17/07 P Neirinck v Commission, para. 50

13 February 2012, F‑118/11 R Marcuccio v Commission, para. 73; 19 March 2013, F‑10/12 Infante Garcia-Consuegra v Commission, para. 14 and the case-law cited therein; 11 July 2013, F‑46/11 Tzirani v Commission, paras 138 to 140

2. Where an official has to change his place of residence in order to comply with Article 20 of the Staff Regulations, the daily subsistence allowance is essentially intended to compensate him for the expense and inconvenience occasioned by the need to travel and to establish provisional residence at his new place of employment. The daily subsistence allowance is therefore granted subject to two conditions: first, the official must have changed his place of residence in order to comply with Article 20 of the Staff Regulations, and second, he must have been exposed to expense or inconvenience occasioned by the need to travel and to establish a provisional residence at the place of employment. Since those two conditions are cumulative, the daily subsistence allowance cannot, in particular, be paid to an official who does not prove that he has been exposed to such expense or inconvenience. While it is true that the right to the daily subsistence allowance arises even before the official moves his residence to his place of employment or his new place of employment, Article 10(2), third paragraph, of Annex VII to the Staff Regulations provides that in no case is the allowance to be granted beyond the date on which the official removes in order to satisfy the requirements of Article 20 of the Staff Regulations. The date of removal thus constitutes a deadline automatically terminating the grant of the daily subsistence allowance. However, that reason for loss of entitlement to the allowance does not alter the fact that, in order to receive the allowance, the official concerned must satisfy, at the very least, the two conditions laid down in Article 20 of the Staff Regulations.

(see paras 43, 44, 46, 47)

See:

5 February 1987, 280/85 Mouzourakis v Parliament, para. 9

10 July 1992, T‑63/91 Benzler v Commission, para. 20

2 December 2008, F‑131/07 Baniel-Kubinova and Others v Parliament, paras 17 and 24; Infante Garcia-Consuegra v Commission, para. 29 and the case-law cited therein

3. In accordance with the first paragraph of Article 85 of the Staff Regulations, 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. In that respect, any normally diligent official is deemed to be familiar with the Staff Regulations. Moreover, in view of the function group to which the official belongs, his high grade, his considerable seniority and his substantial experience both in budget matters and in changing his place of employment, he cannot reasonably claim that he found the rules relating to the daily subsistence allowance complicated and that he was not able to carry out the checks required of him.

(see paras 61-63)

See:

11 October 1979, 142/78 Berghmans v Commission, para. 9

19 May 1999, T‑34/96 and T‑163/96 Connolly v Commission, para. 168; 15 July 2004, T‑180/02 and T‑113/03 Gouvras v Commission, para. 111; 16 May 2007, T‑324/04 F v Commission, paras 144 and 145 and the case-law cited therein

9 September 2008, F‑18/08 Ritto v Commission, para. 29; 12 March 2014, F‑128/12 CR v Parliament, para. 45

4. Generally speaking, the purpose of Article 85 of the Staff Regulations is to protect the financial interests of the European Union in the specific context of relations between the Union institutions and their staff, that is to say, persons linked to the institutions by the specific duty of loyalty now formally referred to in Article 11 of the Staff Regulations. The second sentence of the second paragraph of Article 85 of the Staff Regulations relates to a situation in which a staff member, with the intention of receiving an undue payment, deliberately misleads the appointing authority, either by failing to supply full details of his personal situation, or by failing to inform it of changes to his personal situation, or by adopting tactics to make it more difficult for the appointing authority to detect that there was no due reason for the payment made to him, including by supplying incorrect or inaccurate information.

The daily subsistence allowance is a benefit which is repeated over a period of time. Consequently, the person concerned must satisfy the conditions for receiving it not just at the time of the original application, but also throughout the period covered by the allowance. It is thus his responsibility, particularly under his duty of loyalty, to inform his administration of any change capable of affecting his entitlement to the benefit in question. Furthermore, if he has doubts as to whether payment of the daily subsistence allowance is justified, the person concerned may address questions to his administration and refer to it the interpretation of Article 10 of Annex VII to the Staff Regulations that he had made independently in order to ensure that he was paid the main allowances provided for under Article 71 of the Staff Regulations.

The argument that, essentially, the administration should, in order to rely on the second sentence of the second paragraph of Article 85 of the Staff Regulations, be in a position to prove, within five years of the date of the overpayment, that it was deliberately misled by the person concerned and that, if it cannot provide that proof, its claim must be regarded as time-barred, must be rejected as unfounded. Such an argument misconstrues the very wording of that provision and, if accepted, would render the provision nugatory. Moreover, given his intention to mislead the appointing authority, the person concerned cannot complain that it is failing in its duty to have regard for his welfare in a situation where it is the official himself who has infringed his duty of loyalty as now formally referred to in Article 11 of the Staff Regulations.

(see paras 66, 67, 69, 78, 79, 103)

See:

29 September 2005, T‑195/03 Thommes v Commission, para. 126

CR v Parliament, para. 61