JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

27 February 2015

Case T‑430/13 P

European Economic and Social Committee (EESC)

v

Mohammed Achab

(Appeal — Civil service — Officials — Remuneration — Expatriation allowance — Naturalisation — Article 4(1)(a) and (b) of Annex VII to the Staff Regulations — Recovery of overpayments — First paragraph of Article 85 of the Staff Regulations)

Appeal: against the judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 26 June 2013 in Achab v EESC (F‑21/12, ECR-SC, EU:F:2013:95), seeking to have that judgment set aside.

Held: The appeal is dismissed. The European Economic and Social Committee (EESC) is to bear its own costs and is ordered to pay those incurred by Mr Mohammed Achab in the present proceedings.

Summary

1. Officials — Recovery of overpayments — Conditions — Patent overpayment — Criteria

(Staff Regulations, Art. 85)

2. Officials — Remuneration — Expatriation allowance — Event warranting the administration’s review of the recipient’s situation — Scope — Change of nationality

(Staff Regulations, Annex VII, Art 4(1)(a) and (b))

3. EU law — Principles — Principle of the prohibition of unjust enrichment on the part of the Union — Definition

4. Appeals — Pleas in law — Plea directed at the Civil Service Tribunal’s decision on costs — Inadmissibility in the event of rejection of all the other pleas

(Statute of the Court of Justice, Anne I, Art. 11(2))

1. In the context of the application of Article 85 of the Staff Regulations, any sum overpaid must be recovered where the irregularity is one which does not escape the notice of an official exercising due care. In that regard, account must be taken in each case of the ability of the official concerned to make the necessary checks.

Moreover, the phrase ‘patently such’ in the first paragraph of Article 85 of the Staff Regulations does not mean that an official who receives overpayments need make no effort to reflect or check. On the contrary, recovery is due where the error is one which would not escape the notice of an official exercising ordinary care, who is deemed to know the rules governing his salary.

Finally, the factors taken into consideration by the Union judicature in that regard concern the official’s level of responsibility, his grade and seniority, the degree of clarity of the provisions of the Staff Regulations laying down the conditions for granting the allowance, and the significance of the changes which have taken place in his personal or family circumstances, where the payment of the contested sum is dependent on the administration’s assessment of that situation. An official in a relatively high grade and with long service in the EU civil service should therefore be capable of recognising that he is receiving an overpayment.

The condition that the fact of the overpayment must be patently such that the official concerned could not have been unaware of it should not be examined from the point of view that seniority is more important than other criteria such as the grade or post occupied, but must be considered in the light of a series of factors which determine to what extent the official should have been aware that he was receiving an overpayment.

(see paras 29-32)

See:

Judgments of 11 July 1979 in Broe v Commission, 252/78, ECR, EU:C:1979:186, paras 13 and 14; 17 January 1989 in Stempels v Commission, 310/87, ECR, EU:C:1989:9, paras 10 and 11, and order of 14 July 2005 in Gouvras v Commission, C‑420/04 P, ECR, EU:C:2005:482, para. 59

Judgments of 28 February 1991 in Kormeier v Commission, T‑124/89, ECR, EU:T:1991:12, paras 17 and 18; 24 February 1994 in Stahlschmidt v Parliament, T‑38/93, ECR-SC, EU:T:1994:23, para. 19; 27 February 1996 in Galtieri v Parliament, T‑235/94, ECR-SC, EU:T:1996:22, para. 46 and the case-law cited therein; 5 November 2002 in Ronsse v Commission, T‑205/01, ECR-SC, EU:T:2002:269, para. 47 and the case-law cited therein, and 2 March 2004 in Di Marzio v Commission, T‑14/03, ECR-SC, EU:T:2004:59, para. 91

2. Whereas officials who are not nationals of the country where they are employed will lose or be refused the grant of the expatriation allowance only if they were habitually resident in their future country of employment throughout the five-year reference period, for officials with the nationality of their country of employment, on the other hand, the fact that they kept or established their habitual residence there, albeit for a very short time in the ten-year reference period, is sufficient to result in the loss or refusal of the grant of that allowance.

Although Article 4(1)(a) of Annex VII to the Staff Regulations is unambiguous, an examination of the situation of the official in question may also require an interpretation of Article 4(1)(b) of that annex. That applies in the situation of an official who had the nationality of a third country when he was appointed and who, despite being resident in his country of employment for the three years preceding his appointment, received the expatriation allowance under Article 4(1)(a) of Annex VII to the Staff Regulations and, as a result of acquiring the nationality of his country of employment, was then refused the expatriation allowance on the basis of Article 4(1)(b) of Annex VII on the ground that, in the ten years preceding his appointment, he was resident in his country of employment.

Thus, in so far as, even in the case of an official exercising ordinary care, a period of three years’ residence in his country of employment during the five-year period preceding the date of his entry into the service did not prevent him from receiving the expatriation allowance, that might reasonably lead him to assume that that same period would not prevent him from being granted the allowance if he acquired the nationality of his country of employment.

(see paras 53-56)

3. According to the principles common to the laws of the Member States, a person who has suffered a loss which increases the wealth of another person without there being any legal basis for that enrichment has the right, as a general rule, to restitution from the person enriched, up to the amount of the loss. Hence, in order for such an action to be upheld, it is essential that there be no valid legal basis for the enrichment.

(see para. 60)

See:

Judgment of 16 December 2008 in Masdar (UK) v Commission, C‑47/07 P, ECR, EU:C:2008:726, paras 44 and 46

4. It is apparent from Article 11(2) of Annex I to the Statute of the Court of Justice that no appeal lies regarding only the amount of the costs or the party ordered to pay them. It follows that, where all the other pleas in law in an appeal against a decision of the Civil Service Tribunal have been rejected, claims concerning the alleged irregularity of the Tribunal’s decision as to who should pay the costs must be dismissed as inadmissible.

(see para. 72)

See:

Judgment of 26 May 2005 in Tralli v ECB, C‑301/02 P, ECR, EU:C:2005:306, para. 88 and the case-law cited therein

Order of 29 October 2009 in Nijs v Court of Auditors, T‑375/08 P, EU:T:2009:423, para. 71