Judgment of the Court (Second Chamber) of 27 June 1973. - Annemarie Kuhl v Council of the European Communities. - Case 71-72.



European Court reports 1973 Page 00705

Greek special edition Page 00595

Portuguese special edition Page 00285



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - DISPUTES WITH THE ADMINISTRATION - APPEAL - TIME LIMIT - COMMENCEMENT - MEASURE AFFECTING A SPECIFIC INDIVIDUAL - NOTIFICATION TO THE PERSON CONCERNED - CONCEPT

( STAFF REGULATIONS, ART . 91 )

2 . OFFICIALS - RECOVERY OF UNDUE PAYMENT - NO DUE REASON FOR PAYMENT - AWARENESS OF THE RECIPIENT - OBJECTION - EVIDENCE - ABSENCE - EXAMINATION OF THE CIRCUMSTANCES OF THE PAYMENT

( STAFF REGULATIONS, ART . 85 )

Summary

1 . THE EXPRESSION " NOTIFICATION ... TO THE PERSON CONCERNED ", IN ARTICLE 91 OF THE STAFF REGULATIONS MEANS THE WRITTEN COMMUNICATION TO THE OFFICIAL CONCERNED AS REQUIRED BY ARTICLE 25 OF THE STAFF REGULATIONS IN THE CASE OF ANY DECISION RELATING TO A SPECIFIC INDIVIDUAL .

2 . IN THE SECOND ALTERNATIVE REFERRED TO IN ARTICLE 85, IF THE RECIPIENT DISPUTES HAVING HAD KNOWLEDGE OF THE UNDUE PAYMENT, THE CIRCUMSTANCES IN WHICH THE PAYMENT WAS MADE MUST BE EXAMINED IN ORDER TO DETERMINE WHETHER THE UNDUE PAYMENT WAS PATENTLY EVIDENT .

Parties

IN CASE 71/72

ANNEMARIE KUHL, AN OFFICIAL AT THE COUNCIL OF MINISTERS OF THE EUROPEAN COMMUNITIES, RESIDING AT BRUSSELS, REPRESENTED BY OTTO KUHL OF THE DUESSELDORF BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF HORST HERGEL, 14 RUE DES BAINS, APPLICANT,

V

COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY GONZAGUE LESORT, LEGAL ADVISER AT THE GENERAL SECRETARIAT OF THE COUNCIL, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF EMILE REUTER, LEGAL ADVISER OF THE COMMISSION, 4 BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR ANNULMENT OF THE DECISION OF THE COUNCIL OF 30 JUNE 1972, REFUSING TO WAIVE A CLAIM FOR RECOVERY OF OVERPAYMENTS,

Grounds

1 THE APPLICANT, BY AN APPEAL ENTERED IN THE COURT REGISTRY ON 2 OCTOBER 1972, ASKS FOR ANNULMENT OF THE DECISION OF THE SECRETARY-GENERAL OF THE COUNCIL OF 30 JUNE 1972, WHICH REJECTS HER COMPLAINT OF 7 JUNE 1972 AGAINST THE DECISION OF 10 MARCH 1972, REFUSING TO WAIVE RECOVERY OF THE EDUCATION ALLOWANCES OVERPAID FOLLOWING HER CHILDREN' S CHANGE OF SCHOOL .

ADMISSIBILITY

2 THE COUNCIL HAS RAISED A PLEA OF INADMISSIBILITY BY REASON OF THE APPEAL BEING OUT OF TIME .

THE DECISION TO RECOVER THE OVERPAYMENT WAS ACTUALLY TAKEN AS AT 3 JANUARY 1972 .

THE APPLICANT' S NOTE OF 19 JANUARY 1972 WAS A COMPLAINT AGAINST THIS DECISION WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS .

THE SECRETARY-GENERAL OF THE COUNCIL REJECTED THIS COMPLAINT ON 10 MARCH 1972 AND AN APPLICATION AGAINST THIS DECISION SHOULD HAVE BEEN LODGED WITHIN THREE MONTHS .

3 UNDER ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS, IN THE FORM THEN IN FORCE, APPEALS MUST BE MADE WITHIN THREE MONTHS FROM THE TIME OF NOTIFICATION OF THE DISPUTED DECISION TO THE PERSON CONCERNED .

THE TERM " NOTIFICATION ... TO THE PERSON CONCERNED " IN ARTICLE 91 OF THE STAFF REGULATIONS CONTEMPLATES WRITTEN COMMUNICATION TO THE OFFICIAL CONCERNED AS REQUIRED BY ARTICLE 25 OF THE STAFF REGULATIONS IN CASE OF ANY DECISION RELATING TO A SPECIFIC INDIVIDUAL .

4 THE DEFENCE ALLEGES THAT THE DECISION OBJECTED TO IN THE APPEAL IS CONSTITUTED BY THE DOCUMENT OF 3 JANUARY 1972 AND THAT THE LATTER HAD BEEN COMMUNICATED TO THE APPLICANT .

THE SLIP ADJUSTING HER SALARY ADDRESSED TO THE APPLICANT ON 15 JANUARY 1972 CONSTITUTED AT LEAST A COMMUNICATION TO HER OF THE DECISION TAKEN ON 3 JANUARY, 1972 .

5 EVEN IF THE APPLICANT HAD RECEIVED THESE DOCUMENTS - WHICH SHE DISPUTES - THEY DO NOT EXPLICITLY SHOW THAT A DECISION HAD BEEN TAKEN UNDER ARTICLE 85 OF THE STAFF REGULATIONS, AS THEY WERE MERELY ACCOUNTING SLIPS .

6 IT FOLLOWS THAT THE ONLY DECISION TAKEN EXPRESSLY UNDER THIS PROVISION IS CONTAINED IN THE LETTER DATED 10 MARCH 1972 .

7 THE APPLICANT MADE A COMPLAINT AGAINST THIS DECISION TO THE APPOINTING AUTHORITY AND SHE HAS BROUGHT THE PRESENT APPEAL WITHIN THE TIME LIMITS AGAINST THE EXPRESS REJECTION OF THIS COMPLAINT .

IT FOLLOWS THAT THE APPLICATION IS ADMISSIBLE .

MERITS

8 ARTICLE 85 OF THE STAFF REGULATIONS PROVIDES TWO CONDITIONS IN WHICH A SUM OVERPAID MAY BE RECOVERED .

9 IN THE FIRST CASE, THE OVERPAYMENT MAY BE RECOVERED IF THE RECIPIENT WAS AWARE THAT THERE WAS NO DUE REASON FOR THE PAYMENT .

THIS CONDITION REQUIRES ACTUAL KNOWLEDGE ON THE PART OF THE RECIPIENT OF THE IRREGULAR NATURE OF THE PAYMENT .

10 IN THE SECOND CASE, ANY SUM OVERPAID MAY BE RECOVERED IF THE FACT OF THE OVERPAYMENT WAS PATENTLY SUCH THAT THE RECIPIENT COULD NOT HAVE BEEN UNAWARE OF IT .

11 IT FOLLOWS THAT IF THE RECIPIENT DENIES HAVING BEEN AWARE OF IT AND IF THERE IS NO PROOF OF ANY KNOWLEDGE OF THE IRREGULARITY OF THE PAYMENT, THEN THE CIRCUMSTANCES IN WHICH THE PAYMENT WAS MADE MUST BE EXAMINED IN ORDER TO DETERMINE WHETHER THE IRREGULARITY OF THE PAYMENT SHOULD HAVE BEEN PLAIN TO SEE .

12 UNDER ARTICLE 8 OF THE GENERAL IMPLEMENTING PROVISIONS DEALING WITH THE CONDITIONS FOR THE GRANT OF THE EDUCATION ALLOWANCE " THE EMPLOYEE IS RESPONSIBLE FOR NOTIFYING ANY CHANGE INVOLVING THE WITHDRAWAL OR REDUCTION OF THE EDUCATION ALLOWANCE ".

MOREOVER THE APPLICANT HAD SIGNED AN UNDERTAKING IN THIS SENCE AT THE TIME OF HER REQUEST FOR REIMBURSEMENT OF THE EDUCATION COSTS .

13 THE APPLICANT SHOULD HAVE KNOWN THAT THE CHANGE OF SCHOOL BY HER TWO ELDER CHILDREN, FROM GERMANY TO THE PLACE WHERE THE FAMILY HOME WAS SITUATED, INVOLVED A REDUCTION OF THE EDUCATION ALLOWANCE .

14 NOT UNTIL 15 JANUARY 1971 DID SHE NOTIFY HER INSTITUTION OF THE CHANGE OF SCHOOL WHICH HAD TAKEN PLACE FROM 1 SEPTEMBER 1970 .

IN THESE CIRCUMSTANCES SHE IS HERSELF RESPONSIBLE FOR THE IRREGULARITY IN THE RATE AT WHICH THE EDUCATION ALLOWANCE WAS PAID TO HER FOR THE LAST FOUR MONTHS OF THE YEAR 1970 .

15 SINCE, EVEN AFTER THIS NOTIFICATION OF CHANGE OF SCHOOL, SHE CONTINUED TO RECEIVE AS BEFORE THE SAME EDUCATION ALLOWANCE FOR THE TWO ELDER CHILDREN, THE APPLICANT SHOULD HAVE BEEN AWARE OF THE PERPETUATION OF THE ERROR .

16 IN THE CIRCUMSTANCES THE FACT OF OVERPAYMENT WAS PATENTLY SUCH THAT THE APPLICANT COULD NOT HAVE BEEN UNAWARE OF IT .

THE COUNCIL THEREFORE PROPERLY REQUIRED RECOVERY OF THE OVERPAYMENT .

Decision on costs

17 THE APPLICANT HAS FAILED IN HER APPLICATION .

UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, COSTS INCURRED BY THE INSTITUTIONS, IN APPLICATIONS BY SERVANTS OF THE COMMUNITIES, SHALL BE BORNE BY THE INSTITUTIONS .

Operative part

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION;

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .