CELEX: 61978CC0142
Language: en
Date: 1979-09-13 00:00:00
Title: Opinion of Mr Advocate General Reischl delivered on 13 September 1979. # Marcelle Exner, née Berghmans, v Commission of the European Communities. # Case 142/78.

OPINION OF MR ADVOCATE GENERAL REISCHL
      DELIVERED ON 13 SEPTEMBER 1979 (
            1
         )
      
         Mr President,
      
         Members of the Court,
      The proceedings in which I am giving my opinion today concern, first, the applicant's claim for payment of a household allowance within the meaning of Article 67 (1) (a) of the Staff Regulations of Officials and Article 1 of Annex VII to the Staff Regulations of Officials, to which inter alia married officials are entitled. Secondly, they concern the disputed duty of the applicant to repay the household allowance which, it is alleged, was for a certain period wrongly paid to her, in accordance with Article 85 of the Staff Regulations of Officials, which provides that:
      ‘Any sum overpaid shall be recovered if the recipient was aware that there was no due reason for the payment or if the fact of the overpayment was patently such that he could not have been unaware of it.’
      In this connexion the following details should be borne in mind. The applicant, who has two children (born in 1969 and 1971) by a previous marriage, married on 16 February 1974 an employee of Eurocontrol who had been in Grade B 5, step 1, since September 1972 and who has been classified in Grade B 4 since December 1976. In accordance with the service regulations of Eurocontrol, which are modelled on those of the European Communities, the applicant's husband has, from the date of the marriage, drawn a household allowance and an allowance for two dependent children. Since June 1975 he has also been drawing an education allowance and since November 1977 a second education allowance.
      On 1 June 1974 the applicant entered the service of the Commission as a probationer in Grade C 5, step 3. She was established with effect from1 December 1974 and since 1 January 1976 has been classified in Grade C 4, step 2. In connexion with her entry into service the applicant was required on 4 June 1974 to fill in and sign a questionnaire, in which — this refers to the requirement in Article 67 (2) of the Staff Regulations that officials declare allowances of like nature paid from other sources — under point No 18 she entered the sum of Bfr 3840, which clearly corresponded to the dependent child allowance paid to her husband by Euro-control. She did not submit supporting documents, which according to a footnote were also to be attached to the questionnaire. Since her entry into service she has accordingly received a household allowance and apparently also — this is, however, not important here — a portion of the dependent child allowances.
      As a result of a check carried out in 1976 it was established that the applicant had not amended her statement relating to the dependent child allowance paid by Eurocontrol although the allowance had been increased as from 1 July 1974. She was therefore requested to provide information concerning changes of that nature. She did so by submitting a statement drawn up by Eurocontrol on 30 September 1976 which referred to the dependent child allowance. At the same time the administration of the Commission contacted Eurocontrol and was informed by a letter of 21 October 1976 that the applicant's husband was in receipt of a household allowance, a dependent child allowance and an education allowance from Eurocontrol. As the sums received by the applicant's husband from Eurocontrol were greater than those received by the applicant under the Community rules the administration of the Commission was led to countermand, from December 1976, payment to the applicant of the household allowance and the proportion of the dependent child allowance; it is true that this was at first only to be inferred from the salary statement. In a letter dated 24 February 1977 the applicant then asked for an explanation of the reduction in her emoluments which was provided in a memorandum of 4 March 1977. She asked for further information in a letter dated 15 March 1977, to which she called the Commission's attention again on 20 April 1977. A memorandum of 18 May 1977 sent in reply to her letters informed her, with reference to Article 67 (2) of the Staff Regulations of Officials, that payment of the household allowance and the dependent child allowances had been countermanded with effect from 1 December 1976 because the corresponding allowances paid to her husband by Eurocontrol were equal to or greater than those paid by the Commission. At the same time the letter informed the applicant that she was under a duty to repay the household allowance granted to her. For the purposes of repayment the relevant date was given as 1 January 1975, apparently because the administration of the Commission misinterpreted a letter from Eurocontrol of 21 October 1976, and only on the basis of a letter from Euro-control dated 10 October 1977 did it become clear that the applicant's husband had been drawing the household allowance from as early as 1 February 1974.
      The applicant lodged a complaint against that decision which was received on 22 July 1977. An accompanying form stated that the subject-matter of the complaint was ‘recovery of the sums overpaid’. As regards the order for repayment, a memorandum from the Head of the Salaries, Pensions, Missions and Miscellaneous Allowances Division of 23 August 1977 specified that the applicant owed the sum of Bfr 22218. That memorandum also fixed the arrangements for the repayment, which was apparently completed in March 1978.
      The applicant received an express reply to her complaint, signed by a Member of the Commission which, as a result of illness, only reached her on 20 March 1978. In that letter it was emphasized that the Commission's request for repayment of the household allowance was correct, since the applicant had failed to state that her husband also received a household allowance. As a result the applicant lodged an application on 19 June 1978 in which she asked this Court to:
      
               1.
            
            
               Rule that she is entitled to payment of the household allowance, as well as to payment of arrears thereof from the date on which payment ceased;
            
         
               2.
            
            
               Annul the decision of the Commission of 6 February 1978;
            
         
               3.
            
            
               Order the Commission to pay the sum of Bfr 22218 with interest at the normal rate with effect from 15 July 1977;
            
         
               4.
            
            
               Alternatively, declare that there are not grounds for the application of Article 85 of the Staff Regulations of Officials.
            
         The Commission considers that inasmuch as those requests relate to the claim for payment of the household allowance they are inadmissible but that they are in any event to be dismissed as unfounded.
      My opinion on this issue is as follows:
      1. The claim for payment of the household allowance
      On that question the Commission has stated that the application is inadmissible since it was not preceded, as required by Article 91 of the Staff Regulations of Officials, by a complaint relating to the decision to cease payment of the household allowance. Should the applicant's complaint be regarded as having related to that question too the Commission claims that it must at least be accepted that it was submitted out of time, which also results in the inadmissibility of the application.
      In accordance with various judgments given in staff cases (Joined Cases 126/75, 34 and 92/76, Robert Giry v Commission, judgment of 27 October 1977 [1977] ECR 1937, Case 95/76, Herbert Bruns v Commission, judgment of 15 December 1977 [1977] ECR 2401, Case 122/77, Augusta Agneessens and Others v Commission, judgment of 26 October 1978 [1978] ECR 2085) I shall leave aside for the moment the question of admissibility, although I have serious doubts in this connexion on grounds of logic, and turn directly to the question whether the applicant's claim seems justified.
      First, Article 67 (1) and (2) of the Staff Regulations of Officials is important in this respect; it provides that:
      ‘1.   Family allowances shall comprise:
      
               (a)
            
            
               household allowance equal to 5o/o of the basic salary …;
            
         
               (b)
            
            
               dependent child allowance …;
            
         
               (c)
            
            
               education allowance.
            
         2.   Officials in reciept of family allowances specified in this Article shall declare allowances of like nature paid from other sources; such latter allowances shall be deducted from those paid under Articles 1, 2 and 3 of Annex VII’.
      Secondly, the question is governed by Article 1 of Annex VII to the Staff Regulations of Officials which states that:
      ‘1.   The household allowance shall be fixed at 5 % of the basic salary of an official …
      2.   The household allowance shall be granted to:
      
               (a)
            
            
               a married official;
            
         
               (b)
            
            
               …
            
         
               (c)
            
            
               …
            
         3.   If the spouse of an official is gainfully employed, with an annual income, before deduction of tax, of more than Bfr 250000,’ (that sum is to be found in the version of the Staff Regulations of Officials of April 1977) ‘the official entitled to the household allowance shall not receive this allowance save by special decision of the appointing authority. The official shall, however, be entitled to the allowance where the married couple have one or more dependent children.
      4.   In cases where, under the foregoing provisions, a husband and wife employed in the service of the Communities are both entitled to the household allowance, this shall be payable only to the person whose basic salary is the higher.’
      The applicant originally expressed the view that Article 67 (2) of the Staff Regulations of Officials only related to allowances which were drawn by the official himself. She abandoned that view in the reply, apparently because she realized its untenability after the Commission drew attention to the amendment to the French version of the Staff Regulations of Officials by Regulation No 1473/72 (Official Journal, English Special Edition 1972 (III), p. 703), the meaning and purpose of the provision and paragraphs 11 to 17 of the decision in Case 106/76 (judgment of 13 October 1977, Francine Gelders nee Deboeck v Commission of the European Communities [1977] ECR 1623 at 1634). The only question which remains to be examined therefore is what opinion must be taken of her view that although Article 67 (2) of the Staff Regulations clearly expresses a general principle the special rule in Annex VII which lays down the conditions governing payment takes precedence over it. It follows from that, however, that the right to the household allowance exists in any event when there are one or more dependent children and that the prohibition on the overlapping of the allowance is limited to cases in which both spouses are in the service of the Communities.
      Let me say at once that I consider that view to be completely untenable.
      In that connexion reference may certainly be made to the judgments in Case 106/76 (Gelders née Deboeck) and Case 14/77 (Gerarda Emer née van den Branden v Commission of the European Communities, judgment of 13 October 1977 [1977] ECR 1683) which state that the manifest objective of Article 67 (2) is to prevent a couple from receiving family allowances twice in respect of the same children if the allowances are comparable and have the same purpose. Since that is simply a reference to Article 67 (2) and since — having regard to the purpose of the provision — the same must apply to other allowances, the findings in those judgments are definitely to be regarded as generally applicable.
      A further important point is that the terms of Article 67 (2) lay down a principle which is applicable in all cases and is subject to no reservation whatever. As against that principle reference cannot be made to Article 1 of Annex VII, in particular paragraph 3, as a special provision which takes precedence over the general rule contained in Article 67 for the cases provided for therein. In that connexion an important factor is that the above-mentioned Article 1 (3) actually contains no rule prohibiting the overlapping of allowances which means, therefore, that its scope is different from that of Article 67 of the Staff Regulations of Officials: it provides that the household allowance is no longer paid if the income of the official's spouse exceeds a certain limit, regardless of whether the spouse draws such an allowance, and that rule against payment of the allowance is only inapplicable if the couple has children. It cannot therefore be deduced therefrom that couples with children may in any event draw two household allowances.
      Furthermore, this would — and this is another important aspect — lead to quite incongruous results as regards Article 1 (4) of Annex VII to the Staff Regulations, which clearly lays down the prohibition on the overlapping of allowances where both husband and wife are employed in the service of the Communities. Indeed, there is no reason why in such a case only one spouse draws a household allowance, when if one of the spouses is employed outside the Communities two allowances should immediately be payable. It can be inferred from the two judgments referred to above that the real aim of Article 67 is not to save the Community budget expenditure: since the aim of the household allowance is manifestly to provide compensation for increased expenditure resulting from a larger household its basic aim is rather to pay the amount of the highest allowance only once where both spouses are in theory entitled to the allowance.
      As in the present case, however, it is not contested that the applicant's spouse draws an allowance of like nature — the rules applying to Eurocontrol are faithfully modelled on the Community rules — and as, on account of his higher basic salary, the household allowance paid to the spouse is higher than that payable to the applicant, the only proper conclusion can be that the applicant was correctly refused the household allowance on the basis of Article 67 (2) of the Staff Regulations of Officials.
      As a result, the requests made in the application which relate thereto must clearly be dismissed. Consequently, in accordance with the case-law referred to at the outset it is not necessary to give further consideration to the question whether they would have been admissible.
      However, I would like with at least a few words to indicate that the arguments put forward by the Commission in that connexion appear to me to be more convincing than the applicant's defence and that doubts as to the admissibility of the application may therefore exist as regards the need for a prior complaint to be lodged and — should the complaint cover the claims for the household allowance — as regards compliance with the time-limits applicable for its lodging.
      
               2.
            
            
               The second group of issues to which I turn next concerns the rule governing repayment contained in Article 85 of the Staff Regulations of Officials which — if my view is correct — concerns only a part of the household allowance paid to the applicant from her entry into service. As no objections of inadmissibility have been put forward in that connexion and the Court can perceive no such questions of its own motion I may with a clear conscience turn directly to the question of the validity of the submissions put forward on that point.
               The applicant contests that the conditions governing an order for repayment under Article 85 of the Staff Regulations of Officials are satisfied. She considers that there can be no question of a clear absence of any due reason for the payment because the legal situation under the Staff Regulations — Article 67 (2) in conjunction with Annex VII — is not completely clear. She cannot therefore be said to have acted in bad faith but must rather be regarded as having made an excusable error. The applicant claims that her grade and level of education must be taken into account in that connexion, together with the fact that as a married woman with children of school age she has no time to study the Staff Regulations of Officials and related administrative communications. Furthermore, before she took up her appointment she was employed in the private sector in Belgium and under the relevant Belgian social security legislation the term ‘family allowances’ is to be understood to mean allowances for dependent children alone. She claims, moreover, that her view of the legal situation — that she was entitled to the household allowance despite payment of a similar allowance to her husband — was confirmed in discussions which she had with officials of the Commission at the time she took up her employment.
               On the other hand, the Commission emphasizes, first, that when she took up her employment the applicant failed to fill in correctly the questionnaire referred to in the statement of the facts — in spite of precise questions information was not given concerning the household allowance granted to her husband by Eurocontrol — and that she also failed to submit any supporting documents — such as her husband's salary statement — from which it could immediately have been seen that her husband draws a household allowance. The Commission claims in addition that the applicant also failed to provide the correct information later, although the attention of officials was regularly drawn to the rule laid down in Article 67 (2) of the Staff Regulations of Officials, as, for example, by a staff note of 13 October 1975. The Commission claims that for those reasons the applicant can in no way rely on her good faith in order to avoid the obligation to repay the overpayments.
               In examining those points at issue it seems to me to be unnecessary to consider every aspect possible under Article 85 of the Staff Regulations. The case-law of the Court has already affirmed (Case 36/72, François Meganck v Commission of the European Communities, judgment of 30 May 1973 [1973] ECR 527, and Case 71/72, Annemarie Kuhl v Council of the European Communities, judgment of 27 June 1973 [1973] ECR 705) that the important factor is the circumstances under which payment is made and that a belated notification of a change in family circumstances accordingly rules out reliance on good faith. Moreover, I regard as correct the view expressed by Mr Advocate General Mayras in his opinion in Case 71/72; his view is that, as regards Article 85, the important question is not only whether the recipient was aware that there was no due reason for the payment or whether that fact was patent but also whether the official who claimed the allowance caused the administrative error which resulted in the payment by failing to provide or by providing inaccurate information.
               Accordingly, the applicant is correctly criticized for having indicated in the questionnaire to be filled in on entry into service in reply to the request to ‘Give details below of the family allowances which you receive from other sources’ only the dependent child allowance paid to her husband and for having failed to submit any supporting documents although expressly requested to do so in the questionnaire.
               As against that the applicant cannot rely on the fact that she was previously employed in the private sector and that under the social security legislation applicable to that sector the term ‘family allowances’ has a narrower meaning. The allowance in question was in fact paid to her husband — whom she of course consulted — by Eurocontrol where, as already mentioned, a system modelled on the Community rules applies under which the term ‘family allowances’ also includes the household allowance.
               Similarly, the applicant cannot rely on a conversation which she had with an official in Grade B on taking up her appointment according to which she was informed — although her statements are contested by the Commission after consultation with the official concerned — that allowances paid by Eurocontrol were not to be taken into account since it is not an organization which forms part of the Communities. In fact this ought never to have been understood — and for that reason it was possible to dispense with calling the official in question as a witness — to mean that when filling in her questionnaire the applicant did not have to provide any information on that subject, since she nevertheless mentioned as well the dependent child allowance which was also paid by Eurocontrol.
               Finally, the applicant is also unable to rely on the fact that she did not react to the regular notices in the Staff Courrier such as, for example, that of 13 October 1975, because she was convinced that they did not concern her. Those notices clearly refer to the prohibition on drawing family allowances concurrently with others and the clear wording of Article 67 of the Staff Regulations of Officials leaves no doubt that the household allowance also belongs to that category.
               Accordingly, it is only possible to hold that Article 85 of the Staff Regulations of Officials was properly applied to the payment of the household allowance to the applicant.
               There is, however, one point, which was referred to in the oral procedure in particular, with which I must nevertheless deal. It is remarkable in fact that the manifestly incorrect submission of the questionnaire to which I have already referred several times did not produce any reaction on the part of the administration. Had the administration immediately reminded the applicant to submit the supporting documents and then indeed received them it is highly unlikely that the applicant would ever have been paid the household allowance. It is therefore possible to speak of the existence of a wrongful act or omission, or a son of contributory negligence on the part of the administration, which, in my opinion, cannot be ignored completely even in a case such as the present. Of course, it ought not to lead to the complete abandonment of the claim for recovery but only to its being restricted. It appears, however, — for whatever reasons — already to have been taken into account since recovery is — if my view is correct — required for only a part and not for the whole of the relevant period.
               In conclusion, therefore, it will be possible to state that in the form in which it was drawn up the order for repayment cannot be contested and that as a result the submissions in the application which relate to that order are also to be rejected.
            
         
               3.
            
            
               Having dealt with those questions a word still remains to be said about the costs of the proceedings. The applicant considers that they should be borne wholly or in part by the Commission on the ground that she acted in good faith, that is, she assumed through no fault of her own that she was entitled to the household allowance in spite of an equivalent payment made to her husband by Eurocontrol.
               After all my previous statements regarding the applicant's failure when filling in the questionnaire to provide complete information and submit supporting documents I have difficulty in endorsing that argument.
               At most it may be asked whether the applicant's argument that she was confirmed in her opinion of the legal situation by officials of the administration and thereby as it were induced to lodge a hopeless application is relevant as regards the question of costs. I would like to say that it is not. Inasmuch as the applicant relies on information allegedly given by Mrs Nicora in the spring of 1977 it is not only of importance that the official in question held a minor position but also that the conversation apparently — and even that is contested by the Commission after consultation with the official concerned — only concerned the fact that the applicant had no claim to the household allowance because Eurocontrol had to be regarded as a Community organization. Inasmuch as the applicant has also maintained that another official, Mr Campey, approved her view of the legal situation in a conversation which took place after she lodged her complaint, this has been classified by the examination of that official which was held at the start of the oral procedure. It is accordingly to be assumed from this that no such approval was given but rather that a misunderstanding arose — apparently because the conversation took place in French.
               As no other grounds have been found for a departure from the normal decision as to costs it only remains to decide them in accordance with Article 70 of the Rules of Procedure.
            
         
               4. 
            
            
               I therefore propose that the application be dismissed in its entirety and that the parties be ordered to bear their own costs.
            
         (
            1
         )	Translated from the German.