Case T‑529/22

European Investment Bank

Judgment of the General Court (Fifth Chamber, Extended Composition), 11 October 2023

(Civil service – EIB staff – Remuneration – Dependent child allowance – Education allowances – Recovery of sums paid but not due – Lack of competence of the author of the act – Infringement of the limitation period)

Actions brought by officials – Staff of the European Investment Bank – Action against a decision rejecting an administrative appeal – Effect – Disputed measure referred to the Court – Exception – Decision not confirmatory in character – Account taken of the reasoning therein

(European Investment Bank Staff Rules, Art. 41)

(see paragraphs 13-17)
EU institutions – Exercise of powers – Delegation – Conditions – European Investment Bank – Remuneration – Dependent child allowances – Education allowances – Decision for the recovery of sums wrongly paid – Decision not issued by the authorised authority or by an authority having been delegated that power – Lack of competence of the author of the recovery decision – Infringement of the rules of sound administration in the management of staff – Annulment of the decision

(see paragraphs 21, 22, 24, 28-32)
Officials – Staff of the European Investment Bank – Remuneration – Dependent child allowances – Education allowances – Decision for the recovery of sums wrongly paid – Limitation period – Interruption or suspension in the event of the opening of an investigation by the European Anti-Fraud Office (OLAF) relating to the lawfulness of such payments – None

(see paragraphs 42-48, 51, 53, 54)

Résumé

The applicant, QT, an employee of the European Investment Bank (EIB), received dependent child allowances and education allowances from July 2014 to June 2017.

Following information received concerning potential irregularities in the award of education allowances and derived entitlements at the EIB, the European Anti-Fraud Office (OLAF) opened an investigation concerning, inter alia, the applicant. Following that investigation, the EIB adopted the decision of 28 September 2021 for the recovery of an amount of EUR 61 186.61 wrongly paid to the applicant towards education allowances, dependent child allowances and related benefits during the period from July 2014 to June 2017 (‘the recovery decision’).

The General Court, sitting in extended composition, before which the applicant brought her action, annuls that decision and rules, on that occasion, inter alia, on whether the opening of an investigation by OLAF is capable of interrupting or suspending the limitation period laid down for the recovery of allowances paid but not due.

Findings of the Court

In support of her action for annulment, the applicant disputed, inter alia, the competence of the author of the recovery decision, submitting that there was no lawful subdelegation of powers to the Head of the ‘Individual Rights and Payment’ Unit by the competent authority within the EIB to adopt decisions for the recovery of undue amounts, namely the Director-General of Personnel.

In that regard, the Court points out that a delegation of powers cannot be presumed and that even when entitled to delegate its powers the delegating authority must take an express decision transferring them, since the delegation can relate only to clearly defined executive powers. However, the material in the file does not substantiate that subdelegation. Nor can the reference, in the recovery decision, to the Director-General of Personnel’s agreement with that decision be regarded as equivalent to an express decision to transfer to the Head of Unit the power to carry out the recovery procedure. It follows that the recovery decision was adopted by an authority without competence to do so.

In her action for annulment, the applicant also alleged infringement of the limitation period laid down in Article 16.3 of the EIB Staff Rules.

According to the Court, it is apparent from the clear wording of that article that the EIB must recover the sums wrongly paid to its staff within a period of five years from their payment, except where it is established that the member of staff concerned intended to mislead it in order to obtain that payment. The determination of such a limitation period, by preventing situations which arose a long time previously from being indefinitely brought into question, tends to strengthen legal certainty but can also allow the acceptance of situations which at least in the beginning were unlawful. The extent to which provision is made for it is thus the result of a choice between the requirements of legal certainty and those of legality, on the basis of the historical and social circumstances prevailing in a society at a given time. It is accordingly a matter for the legislature alone to decide, and, once a limitation period is adopted by it, the judicature cannot substitute another period in a particular case.

As regards the EIB’s argument that the limitation period ceased to run during the OLAF investigation, the Court notes that Article 16.3 of the abovementioned staff rules does not contain any reference to the interruption or suspension of that period in the event of the opening of an investigation by OLAF. Furthermore, although the institutions, bodies, offices and agencies of the European Union must refrain from opening a parallel investigation whilst OLAF conducts an internal investigation into the same facts, ( 1 ) the adoption of a decision for the recovery of sums wrongly paid cannot amount to an investigation.

Accordingly, there was nothing to prevent the EIB from recovering the amounts that it considered had been wrongly paid to the applicant before the conclusion of OLAF’s investigation concerning her, since the principles of sincere cooperation and sound administration on which it relies cannot justify the recovery of the allowances at issue outside the five-year limitation period, unless the principle of legal certainty is disregarded.

In the light of the foregoing, the Court annuls the recovery decision.

( 1 ) Under Article 5(3) of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by [OLAF] and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ 2013 L 248, p. 1).