CELEX: 61982CC0092
Language: en
Date: 1983-10-06
Title: Opinion of Mr Advocate General Mancini delivered on 6 October 1983. # Max Gutmann v Commission of the European Communities. # Official - Resettlement allowance - Recovery of undue payment. # Case 92/82.

OPINION OF MR ADVOCATE GENERAL MANCINI
      DELIVERED ON 6 OCTOBER 1983 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               The application of 18 March 1982 initiating these proceedings consists of a number of claims made by Max Gutmann, a former official of the Commission of the European Communities, against that institution, seeking the annulment of a decision concerning the recovery of a resettlement allowance, and the repayment with interest of sums withheld.
               The facts may be summarized as follows: Mr Gutmann, an official of the Communities since 1956, retired on 3 December 1977 on reaching the age of 65. As he wished to move to Nice, his place of origin, on 21 April 1980 he asked the Commission to inform him of the amount of the resettlement allowance, the period within which he had to apply for the allowance and the documentation he had to produce. The Commission informed him that he would be paid an allowance of BFR 340720 against documentary evidence that he and his family had resettled at a place situated not less than 70 kilometres from the place where he had been employed, within three years of his retirement (and therefore before 2 December 1980). As the end of the three years approached, Mr Gutmann submitted (on 27 October 1980) a medical certificate stating that his wife was seriously ill, and requested more time to effect his resettlement and removal. He was granted an extension (to 31 December 1981), but only in respect of the removal. The Commission maintained that the Staff Regulations do not permit the extension of the prescribed period for resettlement after the termination of service.
               Mr Gutmann did not contest the decision. In a memorandum of 17 November 1980, he declared that he had moved from Luxembourg to Paris and produced a certificate of permanent residence certifying that he has resided in Paris since October 1980. On 9 December 1980 the Commission requested additional documentary evidence (such as a lease, or a telephone or electricity bill) in order to establish that, although no removal had taken place, Mr Gutmann and his family had actually resettled. By the same letter, the Commission notified Mr Gutmann that, pursuant to Article 82 of the Staff Regulations, as from December 1980 his pension would be calculated on the basis of the weighting fixed for France.
               Mr Gutmann complied with the Commission's request by submitting, on 19 December 1980, a telephone bill dated 14 August 1980 in respect of August and September 1980 and also some services provided in the preceding months. On the basis of that evidence, the Commission decided to pay the resettlement allowance (which was clone on 23 March 1981) and to apply to the pension the weighting for France. Subsequently, Mr Gutmann's pension for February 1980 was reduced by some BFR 20000 which represented the overpayment resulting from the application of the Luxembourg weighting to the monthly pension payments for December 1980 to February 1981.
               It was that deduction that provoked this dispute. That and the future reduction in his purchasing power brought about by the change of weighting induced Mr Gutmann to send a further letter to the Commission. That letter is decisive for the outcome of these proceedings and requires careful consideration. In it Mr Gutmann claimed in particular that the refusal to allow him more time, as he had previously requested, had “forced (him) to carry out a pretence of resettlement”. He then stated that the address in Paris referred to in the memorandum of 17 November was that of a flat owned by his two daughters and occupied by the elder daughter. Finally, he declared that he had continued to reside in Luxembourg with his wife and his younger daughter. On that basis he sought the annulment of the decision to apply the weighting fixed for France to his pension and the reimbursement of the sums deducted and asked that his correspondence be directed to Luxembourg. There followed a voluminous correspondence which culminated in Mr Gutmann submitting a complaint (21 May 1981) against the decision concerning the application of the weighting for France. The Commission gave way and on 16 June 1981 annulled the earlier decision (5 January 1981) and acceded to Mr Gutmann's claim to have his pension calculated on the basis of the weighting for Luxembourg and to have his correspondence sent to Luxembourg City.
               However, since the payment of the allowance had been obtained by means of false declarations, the Commission stated that it regarded it as an undue payment and notified Mr Gutmann of its intention to recover that amount on the basis of Article 85 of the Staff Regulations in conjunction with Article 46 of Annex VIII thereto. Mr Gutmann submitted a complaint through official channels against that part of the decision and when that complaint was rejected, initiated these proceedings on 18 March 1982. A few days later he died and the proceedings were continued by his daughters.
            
         
               2. 
            
            
               The crux of the dispute is the Commission's decision to recover the resettlement allowance and its outcome turns on the provisions to which I have just referred. Article 85 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.” Article 6 (4) of Annex VII to the Staff Regulations provides that the resettlement allowance is to be paid “against evidence that the official and his family ... have resettled at a place situated not less than 70 kilometres from the place where the official was employed” provided that resettlement takes place “within three years of the date of termination of his service”.
               Of the two conditions laid down in that provision, the second does not pose any problem in this instance. As has been established, the applicant asked for more time to effect his resettlement, but did not contest the decision refusing his request. Therefore it is not disputed that the three-year period was respected.
               The first requirement is met, in the Commission's view, only if the official resettles together with all his family. I do not find that view convincing, and, more to the point, it is contrary to the recent case-law of the Court. The Court has stated, in interpreting Article 6, that an official who does not settle with his family is to receive half the allowance to which he would otherwise be entitled (judgment of 25 November 1982, Case 79/82 Evens v Court of Auditors [1982] ECR 4033). Since the provision in question is silent on that issue, the Court reached that conclusion by referring to the provision (Article 5 (4)) which governs the installation allowance. The two allowances do, in fact, have very similar aims. They are both intended to cover or offset the expenses incurred by an official in his integration in new surroundings for an indeterminate but substantial period of time (cf. as regards Article 5, judgment of 9 November 1978, Case 140/77 Verbaaf v Commission [1978] ECR 2117, paragraph 18 of the decision).
               However, those considerations do not mean that the payment of the allowance to Mr Gutmann was not an undue payment. The fictitious nature of his resettlement in Paris is quite evident from the letters he wrote to the Commission. Moreover, he himself admitted that it was a “pretence”. The truth of that admission is confirmed by the contradictory documents which he produced. Whilst the certificate of residence was intended to prove that Mr Gutmann was resident in Paris from October 1980, the telephone bill referred to rental and services relating to an earlier period. As a matter of fact Mr Gutmann never moved from Luxembourg. That too is something he has expressly admitted. That admission is, in turn, confirmed by the fact that he did not request reimbursement of the travelling expenses for himself and his family from Luxembourg to Paris.
            
         
               3. 
            
            
               It is therefore clear that the payment of the resettlement allowance constituted an undue payment but the question remains whether the Commission correctly applied Article 85. As we have seen, that provision tempers the civil law principles relating to recovery of undue payments in order to protect officials acting in good faith.
               The Commission considers that Mr Gutmann was not acting in good faith, inasmuch as he had made “false declarations”. Mr Gutmann denies that and complains that the Commission's decision does not contain a statement of the grounds on which it is based in relation to that point. He is wrong. As I have attempted to show, the letters he wrote and the documents he produced are riddled with contradictions, which result from his vain attempt to reconcile the irreconcilable, namely to obtain an allowance for resettling in Paris and a pension calculated on the basis of the weighting which requires residence in Luxembourg.
               But even supposing, purely for the sake of argument, that the applicant was not aware that the allowance constituted an undue payment, he ought to have recognized the irregularity of the situation, at least if, as the Court required in its judgment of 11 July 1979 (Case 252/78 Broe v Commission [1979] ECR 2393, paragraph 14 of the decision) he had acted with “the ordinary degree of care to be expected of an official”. Indeed it is inconceivable that an official in Grade A 3, who was moreover very familiar with the case-law of this Court and academic writing concerning the European Community civil service (see his memorandum of 4 March 1981), could have misconstrued the effect of the provisions of the Staff Regulations — despite the fact that they are extremely clear — and that he was not capable of appreciating the contradictory nature of his own claims.
            
         
               4. 
            
            
               The applicant also claims that Article 46 of Annex VIII to the Staff Regulations applies to his case. That article provides that: “Any sums due from an official of the Communities at the date when a benefit is payable under this pension scheme shall be deducted from the amount of his benefit or from the benefits payable to those entitled under him. The deduction may be spread over a number of months.” Mr Gutmann claims that the debt he owes the Commission was incurred after (23 March 1981) the date on which he became entitled to a pension (1 December 1978).
               However that argument is unfounded as Article 46 does not derogate from the general rules for the recovery of undue payment but serves to implement that system in respect of pensions. The Commission may therefore avail itself of that provision and recover in instalments the sums which Mr Gutmann owes it, which is, moreover, to the latter's advantage.
            
         
               5. 
            
            
               In the light of all the aforementioned considerations I am therefore of the opinion that the Court should dismiss the action brought against the Commission of the European Communities by Mr Max -Gutmann on 18 March 1982. I consider, in addition, that each party should bear its own costs.
            
         (
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         )	Translated from the Italian.