JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

9 September 2008

Case F-18/08

Luis Ritto

v

Commission of the European Communities

(Civil service – Officials – Recovery of undue payments – Household allowance – Patent overpayment)

Application: brought under Articles 236 EC and 152 EA, in which Mr Ritto seeks annulment of the Commission’s decision of 14 May 2007 informing him that he was to forfeit his household allowance with effect from 1 September 2001 and that the sum he had received on that basis from that date would be recovered pursuant to Article 85 of the Staff Regulations, together with the Commission’s decisions of 1 and 21 June 2007 determining the arrangements for that recovery, as well as annulment of the Commission’s decision of 7 November 2007 rejecting his complaint against the abovementioned decisions.

Held: The action is dismissed. The applicant is ordered to bear the costs.

Summary

Officials – Recovery of undue payments – Conditions

(Staff Regulations, Art. 85; Annex VII, Art. 1(3))

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. In the absence of evidence that he was aware that there was no due reason for the payment, the circumstances in which the payment was made must be examined in order to determine whether the overpayment was patently evident.

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.

Simply reading the provisions of Article 1(3) of Annex VII to the Staff Regulations informs any official, even without legal training, that he is entitled to the household allowance only if his spouse’s professional income does not exceed a certain threshold. Furthermore, an official in a position of authority, who has considerable seniority and experience, cannot fail to be aware of the consequences of exceeding the ceiling referred to in Article 1(3) of Annex VII to the Staff Regulations.

The fact that he has duly forwarded documentary evidence of his spouse’s professional income to the administration every year does not relieve the official of the need to determine for himself whether that income exceeds the ceiling referred to in Article 1(3) of Annex VII to the Staff Regulations . In any event, the administration’s mistake or negligence does not affect the application of Article 85 of the Staff Regulations, which in fact presupposes that the administration has made a mistake in making the irregular payment. It is not a question of whether or not the error was patent to the administration, but whether it should have been so to the recipient. Since the applicant, like any official, has a personal interest in checking the payments made to him every month, his situation cannot be compared to that of an administration responsible for the payment of thousands of salaries and allowances of all kinds.

(see paras 29-31, 34, 36, 39, 40)

See:

71/72 Kuhl v Council [1973] ECR 705, para. 11; 252/78 Broe v Commission [1979] ECR 2393, paras 11 and 13; 142/78 Berghmans v Commission [1979] ECR 3125, para. 9

T-111/89 Scheiber v Council [1990] ECR II‑429, para. 43; T-107/92 White v Commission [1994] ECR-SC I‑A‑41 and II‑143, point 38; T‑38/93 Stahlschmidt v Parliament [1994] ECR-SC I‑A‑65 and II‑227, para. 23; T-205/01 Ronsse v Commission [2002] ECR-SC I‑A‑211 and II‑1065, paras 47 to 49; T-180/02 and T-113/03 Gouvras v Commission [2004] ECR-SC I‑A‑225 and II‑987, para. 76