JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

24 February 1994

Case T-93/92

Eberhard Burek

v

Commission of the European Communities

‛Officiala — Household allowance — Recovery of undue payment’

Full text In German II-201

Application for:

— the annulment of the Commission decision of 20 December 1991 discontinuing with retroactive effect the household allowance received by the applicant up to that date;

— reimbursement of the amounts deducted from the applicant's pension pursuant to the Commission decision of 6 February 1992;

— a declaration that the Commission is not entitled in law to deduct the amounts referred to in that decision.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant, who was a widower at the material time, was a former Commission official in Grade A 4 with the Commission whose service terminated in accordance with the conditions set out in Regulation No 1679/85 introducing special and temporary measures to terminate the service of certain officials in the scientific and technical services of the European Communities.

Under Article 3(5) of that regulation the applicant received a dependent child allowance, an education allowance and a household allowance. The latter allowance was paid subject to the conditions set out in Article l(2)(b) of Annex VII to the Staff Regulations.

When the applicant's son reached the age of 26 on 26 May 1988, the Commission discontinued, with effect from 1 June 1988, the payment of the dependent child allowance, the education allowance and the orphan's pension received by the applicant's son.

By letter of 3 March 1989 the applicant informed the Commission that since 26 May 1988 he no longer had a dependent child. The Commission, however, continued to pay the applicant household allowance after 1 June 1988 until, by a decision of 20 December 1991, it discontinued payment with retroactive effect from 1 June 1988 and informed the applicant by letter of 6 February 1992 that he had to repay a sum totalling DM 22407.

The sole plea in law based on infringement of Article 85 of the Staff Regulations defining the conditions for recovery of undue payments

The Court notes that when the applicant left the Commission he had in his possession a copy of the Staff Regulations and of Regulation No 1679/85, Article 3(5) of which, an unambiguous provision, refers expressly to Article l(2)(b) of Annex VII to the Staff Regulations, which entitles a widowed official to a household allowance only if he has one or more dependent children (paragraph 26).

Having regard to the clarity of the applicable provisions and in view of the fact that the applicant declared on 3 March 1989 that he no longer had a dependent child at a time when the household allowance was the only family allowance which he was still receiving, the Court seriously questions the applicant's assertion that he was unaware that the payments made after 1 June 1988 in respect of household allowance had been wrongly made (paragraph 28).

In any event, the Court considers that the conditions for recovery of undue payments are satisfied on the ground that the fact that the payments in question were not due was so obvious that the applicant could not have failed to be aware of it. The phrase ‘patently such’ in 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 (paragraph 29).

See: 252/78 Broe v Commission [1979] ECR 2393, para. 13; 310/87 Stempels v Commission [1989] ECR 43, para. 10; T-34/89 and T-67/89 Costacurta v Commission [1990] ECR II-93, paras 39 to 42

The Court takes the view that in this case the applicant ought to have concluded that his entitlement to household allowance had become questionable once he no longer had a dependent child and the dependent child allowance, the education allowance and the orphan's pension had been discontinued. In view of the clarity of the legal provisions, a summary check would have enabled a former official in Grade A 4, even though he had no legal background, to discover tliat since he was a widower and had no dependent children he was no longer entitled to a household allowance (paragraph 30).

Operative part:

The application is dismissed.