JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

25 April 1996

Case T-274/94

Antonio Castellacci

v

Commission of the European Communities

‛Officials — Household allowance — Residence condition — Allowance for a person treated as a dependent child — Recovery of undue payment’

Full text in French II-579

Application for:

— annulment of the Commission's decision of 24 November 1993 (1) withdrawing the household allowance and the allowance for a person treated as a dependent child and (2) providing for the recovery of the allegedly undue payments made in respect of those allowances, and

— annulment of the Commission's decision of 26 January 1994 laying down detailed measures for the repayment of the sums to be recovered pursuant to the decision of 24 November 1993.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant, a Commission official of grade A 6 based in Brussels, was seconded to Rome and returned to Brussels on 1 February 1991. The Commission, on application by him, granted him a household allowance and an allowance for a person treated as a dependent child, under Article l(2)(c) and Article 2(4) respectively of Annex VII to the Staff Regulations of Officials of the European Communities, for the period from 1 July 1990 to 30 June 1991. By various later decisions the two allowances were extended until 30 June 1993.

After suspending the allowance for a person treated as a dependent child with retroactive effect from 1 July 1993, on the ground that the applicant no longer satisfied the conditions for granting that allowance, the Commission, by decision of 24 November 1993, notified the applicant that the allowance was to be recovered pursuant to Article 85 of the Staff Regulations, that the household allowance was to be withdrawn with immediate effect, and that the undue payments in that respect would also be recovered under Article 85 of the Staff Regulations. With respect to the allowance for a person treated as a dependent child, the decision noted that, according to the opinion of the Commission's medical service, the applicant's mother, Mrs Marino, did not need a nurse and the costs relating thereto had thus not been accepted, and that in any event the applicant had not produced supporting evidence for payment of a nurse, although the Commission had requested him on several occasions to produce documents to prove that that payment had been made. With respect to the household allowance, the decision of 24 November 1993 found that the applicant's mother was not permanently resident under the same roof as the applicant in Brussels, and that the conditions for granting the allowance were consequently not satisfied.

After receiving a note of 20 January 1994 from the Commission setting out the arrangements for recovery of the sums in question, for the period from 1 February 1991 to 31 December 1993, followed by a note of 26 January 1994 cancelling and replacing the previous one and altering the schedule for recovery of the undue payment, the applicant lodged a complaint on 22 February 1994 against the decisions of 24 November 1993 and 20 January 1994. The complaint was rejected by a decision of 4 May 1994.

Admissibility

Since the conditions of admissibility are a matter of public policy, the Court may examine them of its own motion. In accordance with the principle of the necessary consistency between the complaint and the application, the subject-matter of the claims in the prior administrative complaint and in the application must be the same. In the present case, the complaint of 22 February 1994 was directed expressly against the decision of 20 January 1994, whereas the application concerns the annulment of the decision of 26 January 1994. Although the measure against which the complaint was formally directed no longer produced legal consequences, it is nevertheless apparent from the Commission's rejection decision that the appointing authority perfectly well understood that the object of the complaint was to contest the decision laying down the arrangements for recovery of the sums unduly paid. The head of claim seeking the annulment of the decision of 26 January 1994 must therefore be declared admissible (paragraph 16).

See: 242/85 Geist v Commission [1987] ECR 2181, para. 9; 224/87 Koutchoumoff v Commission [1989] ECR 99, para. 10; T-57/89 Alexandrakis v Commission [1990] ECR II-143, para. 8; T-1/90 Pérez-Minguez Casariego v Commission [1991] ECR II-143, paras 45 to 49; T-545/93 Kschwendt v Commission [1995] ECRSC II-565, para. 26; T-39/93 and T-553/93 Baltsavias v Commission [1995] ECRSC II-695, para. 73

Substance

The household allowance

The single plea in law alleging breach of Article l(2)(c) of Annex VII to the Staff Regulations

Article l(2)(c) of Annex VII to the Staff Regulations must be interpreted as requiring the family members concerned to live under the same roof. The person concerned must live permanently with the official and must thus be settled in his household with the purpose of creating there a stable base for his professional, economic and social relations. It follows that the ‘general provisions implementing Article l(2)(c) of Annex VII to the Staff Regulations (household allowance)’ are consistent with Article l(2)(c) of Annex VII to the Staf f Regulations (paragraph 22).

See: 248/87 Mourikl v Commission [1988] ECR 1721, para. 13

As regards the period from February 1991 to May 1992, the applicant concedes that his mother frequently travelled to Italy during that period. Moreover, the applicant has produced a written declaration of 2 May 1992, in which Mrs R., residing in Italy, stated that she was providing his mother with daily care. Finally, the applicant has not disputed that the allowances at issue were paid into his mother's account in Italy until 30 June 1992. Furthermore, the possession by the applicant's mother of a special identity card is not sufficient proof in the present case of her permanent residence in a particular place, especially as the card was issued in March 1992, that is, at a time when, as the applicant concedes, his mother was often absent from his household. Neither party based argument on various doctors' bills as evidence of the applicant's mother's residence during the period in question. Three bills merely for consultations are not capable of proving permanent residence. The applicant has therefore failed to establish that his mother was permanently resident under his roof. The Commission was consequently entitled to withdraw the household allowance for that period (paragraphs 23 to 27).

As regards the period from June 1992 to the adoption of the decision of 24 November 1993, firstly, the applicant did not produce to the Commission the additional evidence it had asked him for on several occasions. Secondly, the Commission cannot be criticized for having regarded the only evidence produced by the applicant as not enough to prove that his mother permanently resided with him. The two receipts from Brussels doctors prove only that the applicant's mother received care in Brussels, but not that she was living permanently under his roof. The documents containing Mrs D. 's statements do not present sufficient guarantees of credibility, since it is not impossible that they were drawn up as a favour, especially as on the dates in question Mrs D., who also worked for the applicant as a cleaning lady, was in a relationship of subordination toward him. Moreover, the probative value of the statement in which Mrs D. claims to have provided medical care since May 1992 is doubtful, given that Mrs R. signed a similar statement for care provided in Italy without specifying the period to which it related (paragraph 28).

The lawfulness of the Commission's decision cannot, having regard in particular to the fact that Article 2(4) of Annex VII to the Staff Regulations requires an official who applies for the allowance in question to produce supporting documents, be affected by documents produced after the adoption of the contested decision. The applicant does not claim that it was not possible for him to produce other evidence before the Commission's decision. It follows that the lawfulness of the decision must be assessed solely on the basis of the documents in the Commission's possession when it took the decision, and that there is no need to consider the probative value of the declarations produced by the applicant for the first time at the stage of the application (paragraph 29).

It follows that the Commission was entitled to consider that the applicant's mother was not living under his roof during the period from June 1992 to the date when the contested decision was adopted, and that consequently the conditions for grant of a household allowance were not satisfied (paragraphs 30 and 31).

The allowance for a person treated as a dependent child

The single plea in law alleging breach of Article 2(4) of Annex VII to the Staff Regulations

With reference to determining whether the applicant had assumed a legal maintenance responsibility involving heavy expenditure, the two medical certificates he relies upon to show that his mother's condition required daily care merely refer to a need for assistance and family care on the one hand and regular care on the other. Those two medical certificates therefore do not permit the conclusion that the state of health of the applicant's mother required the daily attendance of a nurse. Since those documents were not sufficient proof, the Commission was entitled to ask for additional evidence to be produced (paragraph 40).

Moreover, the applicant's assertion concerning the expenditure for daily assistance is based solely on the statements of Mrs R. and Mrs D. and on a declaration by a bank certifying that the applicant made monthly cash withdrawals of at least BFR 40000. Firstly, however, the statements of Mrs R. and Mrs D. do not present sufficient guarantees of credibility. Secondly, the bank's declaration does not specify the destination of the money withdrawn, and the applicant, despite numerous reminders, has not produced sufficiently convincing evidence that the alleged payments to Mrs R. and Mrs D. were really made. In those circumstances, the Commission was perfectly entitled to consider that the documents produced by the applicant were not sufficient proof of the alleged fact that he had borne heavy expenditure in respect of his mother (paragraphs 41 and 42).

Recovery of the undue payments

The single plea in law alleging breach of Article 85 of the Staff Regulations

Article 85 of the Staff Regulations provides for two cases in which a sum overpaid is to be recovered: where the recipient was aware that there was no due reason for the payment, and where the fact of the overpayment was patently such that he could not have been unaware of it. On the one hand, by pleading his good faith, the applicant is implicitly denying that he was aware of the irregular nature of the payments at issue. On the other hand, the Commission has not shown that the recipient was actually aware of the irregular nature of the payments. The Court must therefore examine whether the irregularity of the payments to the applicant was so patent that he could not have been unaware of it (paragraphs 48 and 49).

An irregularity is patent if it is one which cannot escape the notice of an official exercising ordinary care. Among the factors taken into account by the Community judicature in assessing whether an official could be aware of an irregularity are the official's level of responsibility, grade and seniority, the degree of clarity of the provisions of the Staff Regulations setting out the conditions for the grant of the allowance, and the significance of the changes in the circumstances which gave rise to payment of the allowance (paragraphs 50 and 51).

See: T-38/93 Stahlschmidt v Parliament [1994] ECRSC II-227, para. 19; Kschwendt v Commission, cited above, para. 104; T-122/95 Ombert v Commission [1996] ECRSC II-63, para. 32

As an official of grade A 6, the applicant holds a position of responsibility. The provisions of the Staff Regulations in question are sufficiently clear for an official to be able to understand their scope. In those circumstances, the applicant has not shown that he exercised ordinary care (paragraph 52).

With respect to the household allowance, Article l(2)(c) of Annex VII to the Staff Regulations provides that only officials who actually assume family responsibilities may be granted a household allowance. Articles 2 and 5 of the provisions implementing that provision specify clearly and unequivocally that that condition is satisfied only if the person concerned actually and permanently resides with the official, and that the condition of actual and permanent residence is no longer satisfied if the official and the member of his family cease to reside together for a continuous period of one month during the period for which the allowance is granted. An official of grade A 6 in receipt of a household allowance cannot reasonably be unaware that he is due the allowance only if he provides proof that he actually and permanently resides with the member of his family. It follows that the applicant, who has conceded that his mother did not live with him permanently during the period from February 1991 to May 1992, should have known that the provisions in question may not be interpreted as meaning that the concept of permanent residence covers periods of absence of such length (paragraphs 53 and 54).

As regards the subsequent period, up to the date of adoption of the contested decision, the Commission requested the applicant to produce supporting documentation, under threat of recovery of undue payments. The applicant cannot plead good faith, since he failed to respond to the Commission's requests. In view of the clarity of the provisions in question, the irregularity of the payments was patently such that the applicant could not have been unaware of it (paragraph 55).

With respect to the allowance for a person treated as a dependent child, an official of grade A 6 exercising ordinary care cannot be unaware of the exceptional nature of such an allowance and of the fact that Article 2(4) of Annex VII to the Staff Regulations prescribes that supporting documents must be produced. Having regard to those two factors, the applicant should have been aware that a document which merely stated that his mother needed regular care was not enough to establish either that the services of a nurse or companion were needed or that the expenditure to obtain the services of those persons constituted heavy expenditure as a result of a legal maintenance obligation. Not having produced supporting documents, the applicant ought thus to have known that the payments made in respect of the allowance for a person treated as a dependent child were irregular (paragraph 56).

It follows that the Commission was entitled to demand repayment of the allowances wrongly paid, pursuant to Article 85 of the Staff Regulations (paragraphs 57 and 58).

Operative part:

The application is dismissed.