JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

19 November 2014

EH

v

European Commission

‛Civil service — Official — Remuneration — Family allowances — Rule against overlapping national allowances and allowances under the Staff Regulations — Official’s spouse in receipt of national family allowances — No declaration by the official to his administration of a change in his personal circumstances — Disciplinary proceedings — Disciplinary penalty — Demotion in step — Proportionality — Statement of reasons — Mitigating circumstances — Failure by the administration to exercise due care and attention’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which EH seeks annulment of the decision of the appointing authority of the European Commission of 24 June 2013 to impose a penalty on him of demotion by three steps, as well as annulment of the decision of 24 January 2014 rejecting his complaint.

Held:

The action is dismissed. EH is to bear his own costs and is ordered to pay the costs incurred by the European Commission.

Summary

Where an official applies for and is granted a benefit relating to his family situation, he may not rely on his alleged ignorance of the situation of his spouse, whether as regards the spouse’s engagement in an occupation, the amount of remuneration earned from that occupation, or the receipt by the spouse of national benefits equivalent to benefits under the Staff Regulations. If such an argument were to be accepted, it might allow officials or other staff receiving all the family allowances provided for in the Staff Regulations to regard themselves as exempt from the obligation to declare national family allowances received from other sources, paid not directly to the official but into the personal bank account of his or her spouse. Furthermore, such an approach could encourage the withholding of information, which would be detrimental to the financial interests of the Union. (see paras 99, 100)

Any official receiving financial benefits is under a general obligation, expressly laid down in Article 67(2) of the Staff Regulations in connection with the rule against overlapping family allowances, to provide full details of his personal circumstances and to make his administration aware of any change in those circumstances. No inefficiency or inaction on the part of an administrative department responsible for protecting the Union’s financial interests can excuse an official’s failure to comply with that obligation. A diligent official who has acquainted himself with the provisions of the Staff Regulations on the basis of which he applies for and receives a benefit, particularly where those provisions are referred to in the decision granting the benefit concerned, may not simply carry on receiving that benefit in silence even though his spouse is receiving full equivalent national benefits in respect of the same children. In such a situation the official cannot justify his silence by the fact that the payments were implicitly accepted or tolerated by his administration through lack of care. Accepting such negligence on the administration’s part as a mitigating circumstance would be tantamount to encouraging officials and other staff to take advantage of any errors made by the administration. Furthermore, it is in any event for the official receiving the benefit under the Staff Regulations to submit the documents he already has in his possession and to inform his administration of any social benefits paid to his spouse by a national body responsible for the payment of those benefits. (see paras 104, 105, 107, 108) See: judgment in Lopez Cejudo v Commission, F-28/13, EU:F:2014:55, para. 67

The duty of loyalty referred to in Article 11 of the Staff Regulations implies that officials must facilitate the task of the administration in determining the extent of their pecuniary entitlements under the Staff Regulations. In that respect, a reasonably diligent official should not be unaware that notification of a change in his family situation, on the basis of which he receives allowances, must be addressed directly to the competent department of his institution, clearly and unequivocally, and in that respect the official cannot rely on the fact that the administration obtained certain details by chance or indirectly. That applies all the more since it is unambiguously clear from the wording of Article 67(2) of the Staff Regulations that the institution is not required to obtain information about any family allowances of like nature paid from other sources, but it is for members of staff to declare that they are receiving such allowances from other sources. Moreover, Article 11 of the Staff Regulations, among others, specifically sets out the duty of loyalty requiring an official not just to refrain from conduct likely to prejudice the dignity of his functions and the respect due to the institution and its authorities, but also to conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained. (see paras 108, 112, 123) See: judgment in Costacurta v Commission, T-34/89 and T-67/89, EU:T:1990:20, paras 45 and 46 judgment in Andreasen v Commission, F-40/05, EU:F:2007:189, para. 233 and the case-law cited therein

The fact that an official, having been apprised of the opinion of the disciplinary board, voluntarily undertook to reimburse the amounts wrongly paid in respect of family allowances makes no difference to the characterisation of the alleged infringement, particularly where it has come to light only as a result of checks by the institution and not through a declaration made by the official at the time. An official is grossly negligent when he makes an error which, while not reflecting a deliberate intention to enrich himself at the expense of the Union budget, is still basically inexcusable, particularly in the light of the official’s duties and responsibilities, his senior grade and his seniority in the service of the institution. Furthermore, there is nothing in the wording of Article 10 of Annex IX to the Staff Regulations which requires the appointing authority to regard the fact that an official is nearing retirement age as a circumstance warranting the imposition of a lesser penalty. (see paras 115, 118, 124, 125)