JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

27 February 1996

Case T-235/94

Roberto Galtieri

v

European Parliament

‛Officials — Household allowance — Recovery of undue payment — Abuse of power — Legitimate expectations — Damages and interest’

Full text in French   II-129

Application for:

—	annulment of the decision of the European Parliament, notified by letter of 19 January 1994, to recover sums unduly paid to the applicant by way of household allowance;

—	an order requiring the European Parliament to reimburse the sums deducted from the applicant's monthly pay;

—	an order requiring the European Parliament to pay damages and default interest.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant is a temporary servant at the Parliament. In July 1980 he was classified in grade B 2. Since January 1990 he has occupied a post in category A. He has been married since July 1984, and his wife also works for the Community institutions. Pursuant to Article 1 of Annex VII to the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), he was in receipt of the household allowance from 1 July 1984 until 30 November 1993.

Following notification of the transfer of the applicant's spouse from the Council to the Parliament, the latter considered that the applicant ceased to be entitled to the household allowance as from 1 January 1992 on account of the retroactive promotion of his wife to grade C 3 on that date. The Parliament decided to recover the sums which it considered to have been unduly paid to the applicant, totalling BFR 267628, and informed the applicant thereof. When the Parliament confirmed that decision following an objection by the applicant, the latter submitted an official complaint under Article 90 of the Staff Regulations.

After the plaintiff had brought an action and applied for an order suspending the operation of the contested decision, the main proceedings before the Court of First Instance were stayed, in accordance with Article 91(4) of the Staff Regulations, pending an express or implied decision rejecting the complaint. By order of 14 July 1994, the President of the Court of First Instance found that it was unnecessary to adjudicate on the application for the adoption of interim measures since the parties had in the meantime reached a settlement, according to which the defendant waived its claim to the immediate recovery of the sum which, in its view was still outstanding.

Even though the applicant was invited, in accordance with Article 100 of the Rules of Procedure, to attend the hearing, he was not represented. The applicant's lawyer applied to the Court for the oral procedure to be reopened on the ground that he had not received the summons to the hearing as a result of an error regarding the address on the part of the person designated for service, who acknowledged that he had received the summons.

Procedure

Failure by a party duly summoned to be represented at the hearing cannot justify the reopening of the oral procedure unless that party's absence is attributable to a case of force majeure, which must be construed as abnormal difficulties, independent of the will of the person concerned and apparently inevitable, even if all due care has been taken. The applicant merely refers to an error of communication between the person designated by him for service and his lawyer, a fact which cannot be described as force majeure (paragraph 17).

See: T-12/90 Bayer v Commission [1991] ECR II-219, para. 44

Admissibility

The Court points out that in principle an application brought before the expiry of the time-limit for replying to a complaint directed against an implied decision of rejection is premature and, as such, inadmissible. Nevertheless, the obligation to exhaust the administrative procedure, laid down by Article 91(2) of the Staff Regulations, is restricted by Article 91(4). It follows from that provision that the person concerned may, after submitting a complaint to the appointing authority under Article 90(2), immediately bring an action before the Court, on condition that it is accompanied by an application for an order suspending the operation of the contested measure or for interim relief (paragraph 28).

See: T-18/89 and T-24/89 Tagaras v Court of Justice [1991] ECR II-53, paras 49 and 50

Article 91(4) of the Staff Regulations does not set a time-limit for instituting proceedings before the Court and cannot therefore be given a restrictive interpretation. That provision is designed to enable proceedings to be brought before the Court before completion of the pre-litigation procedure on condition that an application for interim measures is lodged at the same time as the main proceedings are instituted, and not to impose a strict time-limit for bringing proceedings. The Court cannot hold that the applicant was precluded from relying on the derogation provided for in Article 91(4) of the Staff Regulations on the ground that he did not institute proceedings before the Court until over three months had elapsed after the submission of his complaint to the appointing authority. This plea of inadmissibility must therefore be rejected (paragraph 29).

The Court points out that the applicant retains an interest in seeking annulment of the decision to proceed with recovery of the undue payment. The Parliament's reply to the complaint altered the initial decision, but met the applicant's claims only in part. Accordingly, this plea of inadmissibility cannot be upheld either (paragraph 30).

Since the Court has declared the claim for annulment to be admissible, the Parliament's plea of inadmissibility based on the rule that inadmissibility of the claim for annulment entails that of the claim for damages must also be rejected. The application must therefore be declared admissible (paragraphs 31 and 32).

Substance

Tlie claim for annulment

First plea alleging breach of Article 85 of the Staff Regulations

According to Article 85 of the Staff Regulations, any sum overpaid is to 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 the light of the arguments of the parties, it is sufficient to examine whether the fact of the overpayment in question was patently such that the applicant could not have been unaware of it (paragraph 45).

The expression ‘patently such’ in that provision does not mean that an official who receives undue payments need make no effort to reflect or check, but rather that recovery is appropriate 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. In order to determine whether the official concerned showed due care, account must be taken of his ability to make the necessary checks (paragraph 46).

See: T-107/92 White v Commission [1994] ECRSC II-143, para. 33; T-93/92 Burck v Commission [1994] ECRSC II-201, para. 29; T-38/93 Stahlschmidt v Parliament [1994] ECRSC II-227, para. 19

Article 1(3) of Annex VII to the Staff Regulations, which provides that an official is not to receive the household allowance ‘if the spouse ... is gainfully employed, with an annual income before deduction of tax, of more than the basic salary of an official in the third step of grade C 3 ...’, must be considered sufficiently clear to enable an official in category A, who has been working in the Community institutions since 1980, to identify the upper limit beyond which he ceases to be entitled to the household allowance, save by special decision of the appointing authority (paragraphs 47 and 48).

With regard to the applicant's omission to inform the Parliament of his wife's promotion, the Court notes that, according to the judgment in White v Commission, an official who delays in notifying the authorities of his institution of changes in his domestic circumstances places himself in an irregular situation by reason of his own conduct and cannot rely on his good faith in order to be released from the obligation to return an allowance which he has wrongly continued to receive. While, in that judgment, the Court considered that the requirement that the overpayment must be patent had not been satisfied in the circumstances of the case which included, amongst other reasons which led to that conclusion, the fact that the upper limit had been exceeded by a very small amount, it took the view that for such limit to be exceeded by BFR 110000 per annum was ‘serious’ and could not have escaped the notice of an official exercising ordinary care (paragraphs 49 and 50).

See: White v Commission, cited above, paras 38 and 50

As to the amount by which the upper limit has been exceeded in the present case, which has been calculated by the parties in different ways, the Court finds that the applicant has not provided any evidence that the Parliament's calculations are incorrect. In those circumstances, the conclusion must be drawn that the sum by which the upper limit in question was exceeded amounted to at least BFR 87000 per annum, an amount which cannot be regarded as negligible and which cannot escape the notice of an official exercising ordinary care (paragraphs 51 to 55).

The conclusion reached by the Court is that, if he had exercised ordinary care, the applicant would have realized that the overpayments in question were patent. The Parliament was accordingly entitled to proceed with the recovery of the sums unduly paid by way of household allowance from 1 November 1992 to 30 November 1993. Furthermore, the applicant has placed himself in an irregular situation by reason of his own conduct - in omitting to inform the administration of his wife's promotion to grade C 3, step 4, on 1 November 1992 - and cannot rely on his good faith in order to be released from the obligation to return the undue payment. For all those reasons, this plea must be rejected (paragraphs 56 and 57).

Second plea alleging misuse or abuse of power

The Court finds that by this plea the applicant seeks in substance merely to demonstrate that the Parliament acted in breach of Article 85 of the Staff Regulations. Since the Court has taken the view that Article 85 was correctly applied, this plea is not well founded and must be rejected (paragraph 60).

Third plea alleging breach of the principle of the protection of legitimate expectations

The right to rely on the principle of the protection of legitimate expectations extends to any individual whom the administration has led to entertain reasonable expectations. However, breach of that principle may not be pleaded unless the administration has given him precise assurances (paragraph 63).

See: T-498/93 Domonville de la Cour v Commission [1994] ECRSC II-813, para. 46

The note attaching to the calculations, to which the applicant refers, merely states that the administration took cognizance of the change in the activity carried on by his wife. That note cannot be interpreted as being of such a kind as to arouse reasonable expectations in the applicant with regard to the maintenance of his right to the household allowance, or as a precise assurance given by the administration. Even on the assumption that the note in question could have been interpreted as a precise assurance, it cannot arouse a legitimate expectation in the applicant in so far as such an assurance would not have been consistent with the Staff Regulations (paragraphs 64 and 65).

With regard to the applicant's right to a monthly salary, the Court points out that the enforcement of a lawful decision to recover an undue payment cannot be regarded as an impairment of that right. This plea must therefore be rejected (paragraphs 66 and 67).

The claim for reimbursement and default interest

This claim presupposes that the contested measure has been found to be null and void. Since the Court has rejected the claim for annulment, this claim is not well founded and cannot therefore be upheld (paragraph 69).

The claim for damages

The Court has found that the application of Article 85 of the Staff Regulations was not vitiated by illegality. The claim for damages, which is based on the allegedly unlawful application ofthat provision, cannot be upheld either (paragraph 71).

Operative part:

The application is dismissed.