JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

1 April 2004

Case T-312/02

Lucio Gussetti

v

Commission of the European Communities

(Officials – Dependent child allowance – Article 67(2) of the Staff Regulations – Anti-cumulation rule applicable to national allowances of like nature – Article 85 of the Staff Regulations – Conditions for recovery of undue payment)

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Application: for annulment of the Commission’s decision of 15 February 2002 deducting as from 1 June 2001 the sums overpaid to the applicant as dependent child allowance, following application of the anti-cumulation rule in Article 67(2) of the Staff Regulations, corresponding to the orphan’s family allowances he receives from the Belgian authorities.

Held: The application is dismissed. The parties are ordered to bear their own costs.

Summary

1. Officials – Actions – Action against the decision rejecting a complaint – Admissibility

(Staff Regulations, Arts 90 and 91)

2. Officials – Actions – Prior administrative complaint – Requirement that subject-matter and grounds be the same – Pleas in law not appearing in the complaint, but closely linked to it – Admissibility

(Staff Regulations, Arts 90 and 91)

3. Officials – Recovery of undue payment – Conditions – Patent absence of due reason for the payment – Criteria

(Staff Regulations, Art. 85)

4. Officials – Recovery of undue payment – Reliance on good faith by an official who has failed to declare allowances of the same nature as Community family allowances – Not permissible

(Staff Regulations, Arts 67(2) and 85)

1. An application for annulment of a decision rejecting a complaint against an initial decision has the effect of bringing before the Court the act adversely affecting the official against which the complaint was submitted.

(see para. 41)

See: 293/87 Vainker v Parliament [1989] ECR 23, para. 8; T-199/01 G v Commission [2002] ECR-SC I-A-207 and II-1085, para. 23; T-302/01 Birkhoff v Commission [2003] ECR-SC I-A-245 and II-1185, para. 24

2. In staff cases, the claims before the Community Court may be based only on grounds of challenge having the same legal basis as those raised in the complaint and those grounds of challenge may be developed before the Court by the submission of pleas and arguments which do not necessarily appear in the complaint, but must be closely linked to it.

The pre-litigation procedure is intended to allow, as a priority, an amicable settlement of the differences arising between officials or other servants and the administration. In order for such a procedure to achieve its objective, it is necessary that the appointing authority be in a position to know with sufficient precision the criticisms formulated by the persons concerned against the contested decision. The administration must not interpret complaints in a restrictive manner, but must, on the contrary, examine them with an open mind.

(see paras 47-48)

See: C-446/00 P Cubero Vermurie v Commission [2001] ECR I-10315, para. 12; C-62/01 P Campogrande v Commission [2002] ECR I‑3793, para. 33; T-144/00 Tirelli v Parliament [2001] ECR-SC I‑A‑45 and II‑171, para. 25; T-174/02 Wieme v Commission [2003] ECR-SC I-A-241 and II-1165, para. 18

3. The words ‘patently such’ used by Article 85 of the Staff Regulations when laying down the conditions for the recovery of sums overpaid are to be interpreted as meaning that the question is not whether the error was patent to the administration but whether it was patent to the recipient. Far from not needing to make any effort to reflect or check, the recipient is required to effect repayment where the error is one which would not escape the notice of an official exercising care, who is deemed to know the rules governing his salary.

The factors taken into consideration by the Court 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 in issue is linked to an assessment of such circumstances by the administration.

(see paras 82-83)

See: T-14/99 Kraus v Commission [2001] ECR-SC I‑A‑7 and II‑39, para. 38; T‑348/00 Barth v Commission [2001] ECR-SC I‑A‑119 and II‑557, para. 30; T‑205/01 Ronsse v Commission [2002] ECR-SC I‑A‑211 and II‑1065, para. 47

4. An official who, while having duly informed the administration of the change in his family circumstances, has failed to provide the administration with information in his possession, the full significance of which he should have realised, has not fulfilled the obligation laid down in Article 67(2) of the Staff Regulations, according to which it is for each official concerned to declare allowances of the same nature as the Community family allowances. Having thus placed himself in an irregular situation by reason of his own conduct in failing to make such a declaration, he cannot plead that he acted in good faith in order to be released from the obligation to return the sum overpaid.

(see paras 102, 106)

See: 36/72 Meganck v Commission [1973] ECR 527; T‑34/89 and T‑67/89 Costacurta v Commission [1990] ECR II‑93, paras. 43 to 49; T-117/89 Sens v Commission [1990] ECR II‑185, para. 12; T-545/93 Kschwendt v Commission [1995] ECR-SC I‑A‑185 and II‑565, para. 109; Barth v Commission, cited above, para. 36; T-66/00 B v Commission [2002] ECR-SC I‑A‑75 and II‑361, para. 54