61982J0092

OFFICIALS - RECOVERY OF UNDUE PAYMENT - CONDITIONS - AWARENESS OF THE OFFICIAL THAT THERE WAS NO DUE REASON FOR THE PAYMENT

( STAFF REGULATIONS , ART . 85 )

IN CASE 92/82

MAX GUTMANN , A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHO DIED ON 22 MARCH 1982 LEAVING AS SOLE HEIRS HIS TWO DAUGHTERS , ANNE GUTMANN , A STUDENT , RESIDING AT 95 RUE DE LA FAISANDERIE , PARIS 75116 , AND ISABELLE GUTMANN , OF NO SPECIFIED PROFESSION , RESIDING AT THE SAME ADDRESS , WHO ARE CONTINUING THE ACTION BROUGHT BY THE DECEASED , ASSISTED AND REPRESENTED BY VICTOR BIEL , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 18 A RUE DES GLACIS ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY HENDRIK VAN LIER , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY ROBERT ANDERSEN , OF THE BRUSSELS BAR , 214 AVENUE MONTJOIE , 1180 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , PLATEAU DU KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION TO RECOVER , UNDER ARTICLE 85 OF THE STAFF REGULATIONS , SUMS PAID AS A RESETTLEMENT ALLOWANCE ,

1 BY APPLICATION DATED 18 MARCH 1982 , MR GUTMANN , A FORMER ADVISER AT THE OFFICE FOR OFFICIAL PUBLICATIONS OF THE EUROPEAN COMMUNITIES AT LUXEMBOURG , BROUGHT AN ACTION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 16 JUNE 1981 ORDERING THE RECOVERY , UNDER ARTICLE 85 OF THE STAFF REGULATIONS OF OFFICIALS , OF SUMS PAID AS A RESETTLEMENT ALLOWANCE .

2 MR GUTMANN DIED ON 22 MARCH 1982 AND THE PROCEEDINGS WERE CONTINUED BY HIS TWO DAUGHTERS .

3 FOLLOWING HIS RETIREMENT , MR GUTMANN RECEIVED , AT HIS REQUEST , PURSUANT TO ARTICLE 6 ( 4 ) OF ANNEX VII TO THE STAFF REGULATIONS , AN ALLOWANCE OF BFR 350 720 ON THE GROUND THAT HE HAD LEFT HIS PERMANENT RESIDENCE IN LUXEMBOURG AND RESETTLED IN PARIS . THE LUXEMBOURG WEIGHTING FOR THE CALCULATION OF THE PENSION WAS AT THE SAME TIME REPLACED BY THAT FIXED FOR FRANCE .

4 BY LETTER OF 4 MARCH 1981 , MR GUTMANN PROTESTED AGAINST THE ALTERATION IN THE WEIGHTING . IN THAT LETTER HE COMPLAINED THAT THE COMMISSION HAD ' ' COMPELLED HIM TO CARRY OUT A PRETENCE OF RESETTLEMENT ' ' . THE COMMISSION HAD REFUSED TO ALLOW HIS APPLICATION FOR THE EXTENSION OF THE PERIOD HE WAS ALLOWED FOR RESETTLEMENT ALTHOUGH AT THE SAME TIME IT GRANTED HIM AN EXTENSION OF THE PERIOD FOR REMOVAL . MR GUTMANN STATED THAT IN REALITY ' ' IT WAS IMPOSSIBLE FOR HIM TO EFFECT EITHER THE REMOVAL OR THE RESETTLEMENT ' ' FOR FAMILY REASONS AND THAT HE WAS CONTINUING TO LIVE IN LUXEMBOURG WITH HIS WIFE AND ONE OF HIS TWO DAUGHTERS .

5 BY LETTER OF 31 MARCH 1981 , THE COMMISSION REPLIED THAT IT WAS OBLIGED TO CONTINUE TO APPLY THE WEIGHTING FIXED FOR FRANCE .

6 ON 16 JUNE 1981 , AFTER MR GUTMANN HAD SUBMITTED A COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS , THE COMMISSION FINALLY AGREED TO APPLY THE WEIGHTING FOR LUXEMBOURG . HOWEVER , IT CONSIDERED THAT AT THE SAME TIME IT WAS OBLIGED TO RECOVER , UNDER ARTICLE 85 OF THE STAFF REGULATIONS AND ARTICLE 46 OF ANNEX VII THERETO , THE SUM WHICH HAD BEEN UNDULY PAID AS A RESETTLEMENT ALLOWANCE , ON THE GROUNDS THAT THAT PAYMENT HAD BEEN OBTAINED AS A RESULT OF FALSE DECLARATIONS , THAT IT DID NOT CORRESPOND TO ANY REAL STATE OF AFFAIRS AND CONSTITUTED AN UNJUSTIFIED ENRICHMENT OF MR GUTMANN .

7 IT IS FOR THE ANNULMENT OF THAT DECISION THAT MR GUTMANN HAS BROUGHT THIS ACTION .

8 PURSUANT TO ARTICLE 85 OF THE STAFF REGULATIONS , ' ' 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 ' ' .

9 IN HIS APPLICATION , MR GUTMANN CLAIMS THAT THE COMMISSION FAILED TO INDICATE IN WHAT WAY HE HAD MADE ' ' FALSE DECLARATIONS ' ' OR HOW HE SHOULD HAVE KNOWN THAT THE PAYMENT OF THE RESETTLEMENT ALLOWANCE REPRESENTED AN UNDUE PAYMENT . HE MADE IT SUFFICIENTLY CLEAR TO THE COMMISSION THAT HE WAS NOT ABLE TO RESETTLE HIS WHOLE FAMILY IN PARIS AT THE SAME TIME .

10 IT SHOULD BE NOTED THAT UNDER ARTICLE 6 ( 4 ) OF ANNEX VII TO THE STAFF REGULATIONS ' ' THE RESETTLEMENT ALLOWANCE SHALL BE PAID AGAINST EVIDENCE THAT THE OFFICIAL AND HIS FAMILY . . . HAVE RESETTLED . . . ' ' . MR GUTMANN HAS ACKNOWLEDGED ON A NUMBER OF OCCASIONS AND IN PARTICULAR IN HIS LETTER OF 4 MARCH 1981 THAT HE HAS NEVER RESETTLED IN PARIS AND THAT THE ALLEGED PERMANENT RESIDENCE IN PARIS IS THE FLAT WHERE HIS ELDER DAUGHTER IS LIVING WHILE A STUDENT WHEREAS HIS WIFE , HIS YOUNGER DAUGHTER AND HE HIMSELF CONTINUE TO LIVE IN LUXEMBOURG .

11 IN THOSE CIRCUMSTANCES , IT IS NECESSARY TO CONCLUDE THAT MR GUTMANN WAS OR SHOULD HAVE BEEN AWARE OF THE FACT THAT THE PAYMENT OF THE RESETTLEMENT ALLOWANCE REPRESENTED AN UNDUE PAYMENT WITHIN THE MEANING OF ARTICLE 85 OF THE STAFF REGULATIONS AND THAT , SEEN IN THAT CONTEXT , THE STATEMENT OF THE GROUNDS FOR THE COMMISSION ' S DECISION IS SUFFICIENT .

12 THE APPLICATION MUST THEREFORE BE DISMISSED AS UNFOUNDED .

COSTS

13 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

14 HOWEVER , ARTICLE 70 OF THE RULES OF PROCEDURE PROVIDES THAT , IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES , THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .