61978J0252

OFFICIALS - RECOVERY OF UNDUE PAYMENT - CONDITIONS - ' ' PATENT ' ' OVERPAYMENT - CONCEPT

( STAFF REGULATIONS OF OFFICIALS , ART . 85 )

ARTICLE 85 OF THE STAFF REGULATIONS , UNDER WHICH ANY SUM OVERPAID IS TO BE RECOVERED , IN PARTICULAR IF THE FACT OF THE OVERPAYMENT WAS PATENTLY SUCH THAT THE RECIPIENT COULD NOT HAVE BEEN UNAWARE OF IT , MUST BE INTERPRETED AS REFERRING NOT TO WHETHER THE ERROR WAS OR WAS NOT PATENT TO THE ADMINISTRATION BUT WHETHER IT WAS SO FOR THE BENEFICIARY , WHO , FAR FROM BEING EXONERATED FROM ANY EFFORT TO REFLECT OR CHECK , IS , ON THE CONTRARY , REQUIRED TO MAKE REPAYMENT WHERE THE ERROR IS ONE WHICH WOULD NOT ESCAPE THE NOTICE OF AN OFFICIAL EXERCISING ORDINARY CARE .

IN CASE 252/78

ARNE BROE , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 22 AVENUE DE LA CHARMILLE , BRUSSELS , REPRESENTED AND ASSISTED BY EDMOND LEBRUN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER , ADVOCATE AT THE COURT , 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DENISE SORASIO , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY DANIEL JACOB , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , M . CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION TO RECOVER FROM THE APPLICANT SUMS PAID BY WAY OF THE HOUSEHOLD ALLOWANCE IN RESPECT OF THE PERIOD FROM 1 JANUARY 1975 TO 31 AUGUST 1977 , AS WELL AS OF THE IMPLIED DECISION REJECTING THE COMPLAINT SUBMITTED BY THE APPLICANT ON 14 APRIL 1978 ,

1 THE APPLICATION , DATED 10 NOVEMBER 1978 , SEEKS THE ANNULMENT OF THE DECISION OF THE COMMISSION TO RECOVER FROM THE APPLICANT THE SUMS OVERPAID BY WAY OF THE HOUSEHOLD ALLOWANCE IN RESPECT OF THE PERIOD FROM 1 JANUARY 1975 TO 31 AUGUST 1977 , AS WELL AS OF THE IMPLIED DECISION REJECTING THE APPLICANT ' S COMPLAINT IN THAT CONNEXION WHICH WAS SUBMITTED TO THE APPOINTING AUTHORITY ON 14 APRIL 1978 .

2 THE APPLICANT AND HIS WIFE , WHO ARE DANISH NATIONALS , HAVE BOTH BEEN EMPLOYED IN THE SERVICE OF THE COMMUNITY AT BRUSSELS SINCE THE BEGINNING OF 1974 . FROM THAT DATE THE APPLICANT RECEIVED THE HOUSEHOLD ALLOWANCE PROVIDED FOR IN ARTICLE 67 ( 1 ) ( A ) OF THE STAFF REGULATIONS OF OFFICIALS , THE CONDITIONS FOR THE GRANT OF WHICH ARE LAID DOWN IN ARTICLE 1 OF ANNEX VII TO THE STAFF REGULATIONS . ACCORDING TO THE TERMS OF THE LATTER PROVISION THE HOUSEHOLD ALLOWANCE SHALL BE GRANTED , FIRST , TO MARRIED OFFICIALS AND , SECONDLY , TO OFFICIALS WHO ARE WIDOWED , DIVORCED , LEGALLY SEPARATED OR UNMARRIED , PROVIDED THAT THEY HAVE ONE OR MORE DEPENDENT CHILDREN ( ARTICLE 1 ( 2 )). WHERE A HUSBAND AND WIFE ARE BOTH EMPLOYED IN THE SERVICE OF THE COMMUNITY THE ALLOWANCE IS PAYABLE ONLY TO THE PERSON WHOSE BASIC SALARY IS THE HIGHER ( ARTICLE 1 ( 4 )).

3 ON THE BASIS OF THE FOREGOING PROVISIONS THE APPLICANT DREW THE HOUSEHOLD ALLOWANCE UNTIL HE INFORMED THE ADMINISTRATION THAT HE AND HIS WIFE HAD BEEN DIVORCED ON 8 AUGUST 1977 . FOLLOWING COMMUNICATION OF THAT INFORMATION AND AS THE APPLICANT HAD NO DEPENDENT CHILD PAYMENT OF THE HOUSEHOLD ALLOWANCE WAS STOPPED WITH EFFECT FROM JANUARY 1978 .

4 IN ADDITION TO THE PROVISIONS REFERRED TO ABOVE ARTICLE 1 OF ANNEX VII CONTAINS A PARAGRAPH ( 3 ) WHICH LIMITS THE RIGHT TO THE HOUSEHOLD ALLOWANCE . ACCORDING TO THE VERSION OF THAT PARAGRAPH IN FORCE AT THAT TIME , A MARRIED OFFICIAL WITH NO DEPENDENT CHILD WHO IS IN PRINCIPLE ENTITLED TO RECEIVE THAT ALLOWANCE SHALL NOT RECEIVE IT IF THE SPOUSE IS GAINFULLY EMPLOYED WITH AN ANNUAL INCOME , BEFORE DEDUCTION OF TAX , OF MORE THAN BFR 250 000 . THAT FIGURE WAS RAISED TO BFR 292 500 WITH EFFECT FROM 1 NOVEMBER 1973 FOR OFFICIALS EMPLOYED IN BELGIUM .

5 A CHECK CARRIED OUT WHEN , FOLLOWING NOTIFICATION BY THE APPLICANT , THE ADMINISTRATION CEASED PAYMENT OF THE HOUSEHOLD ALLOWANCE WITH EFFECT FROM 31 DECEMBER 1977 , SHOWED THAT FROM 1 JULY 1974 HIS WIFE ' S INCOME HAD EXCEEDED THE UPPER LIMIT LAID DOWN IN ARTICLE 1 ( 3 ) OF ANNEX VII TO THE STAFF REGULATIONS , WITH THE RESULT THAT FROM THAT DATE THE HOUSEHOLD ALLOWANCE HAD NOT BEEN DUE TO THE APPLICANT AND HAD BEEN PAID TO HIM IN ERROR .

6 IN THOSE CIRCUMSTANCES THE ADMINISTRATION INFORMED THE APPLICANT ON 10 FEBRUARY 1977 THAT THE SUMS OVERPAID WOULD BE RECOVERED WITH THE EXCEPTION OF THOSE PAID BETWEEN 1 JULY AND 31 DECEMBER 1974 DURING WHICH PERIOD HIS WIFE ' S SALARY HAD EXCEEDED THE UPPER LIMIT IN QUESTION ONLY AS A RESULT OF A RETROACTIVE READJUSTMENT . THE APPOINTING AUTHORITY FAILED TO REPLY TO A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS WITHIN THE PERIOD OF FOUR MONTHS PRESCRIBED BY THAT ARTICLE WITH THE RESULT THAT ON THE EXPIRY OF THAT PERIOD ITS SILENCE CONSTITUTED THE IMPLIED DECISION REJECTING THE COMPLAINT , ANNULMENT WHEREOF IS NOW SOUGHT TOGETHER WITH THAT OF THE DECISION OF 10 FEBRUARY 1977 .

7 THE APPLICANT DOES NOT CONTEST THAT THE SUMS HE RECEIVED WERE PAID WITHOUT DUE REASON BUT MAINTAINS THAT ARTICLE 85 OF THE STAFF REGULATIONS PREVENTS THEIR RECOVERY . ACCORDING TO THAT PROVISION : ' ' 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 ' ' .

8 HE ALSO RELIED , IN THE ALTERNATIVE , ON THE BREACH OF THE PRINCIPLES OF FAIRNESS AND EQUALITY , INASMUCH AS HE CLAIMED THAT THE UNDUE PAYMENT WAS RECOVERED FROM HIM WHEREAS IT WAS NOT RECOVERED FROM OTHER OFFICIALS WHOSE SITUATION WAS SIMILAR . HOWEVER , HE ABANDONED THAT SUBMISSION IN THE COURSE OF THE PROCEEDINGS WHEN THE ALLEGATION OF A DISPARITY BETWEEN THE MEASURES ADOPTED BY THE COMMISSION PROVED TO BE INCORRECT .

9 ARTICLE 85 ENVISAGES TWO POSSIBLE CASES : FIRST , WHERE THE RECIPIENT WAS AWARE THAT THERE WAS NO DUE REASON FOR THE PAYMENT AND , SECONDLY , WHERE THE FACT OF THE OVERPAYMENT WAS ' ' PATENTLY SUCH ' ' THAT HE COULD NOT HAVE BEEN UNAWARE OF IT . THE APPLICANT MAINTAINS THAT NEITHER APPLIES TO HIS CASE .

10 THE APPLICANT STATES THAT HE WAS NOT AWARE THAT THE SUMS IN QUESTION WERE PAID IN ERROR . ALTHOUGH IT MAY BE SERIOUSLY DOUBTED WHETHER SUCH A STATEMENT IS ADEQUATE AND ALTHOUGH A REASONABLE INTERPRETATION OF ARTICLE 85 RATHER APPEARS TO REQUIRE THE RECIPIENT OF THE UNDUE PAYMENT TO PROVIDE EVIDENCE MAKING THE ALLEGED UNAWARENESS PLAUSIBLE , IT IS SUFFICIENT IN THE PRESENT CASE TO CONSIDER WHETHER ' ' THE FACT OF THE OVERPAYMENT WAS PATENTLY SUCH ' ' THAT HE COULD NOT HAVE BEEN UNAWARE OF IT .

11 IN THAT CONNEXION THE APPLICANT CLAIMS , FIRST , THAT AN ERROR WHICH THE ADMINISTRATION HAS ITSELF COMMITTED OVER SEVERAL YEARS CANNOT BE REGARDED AS PATENT , PARTICULARLY AS IT HAD FULL KNOWLEDGE OF THE SALARY WHICH IT WAS ITSELF PAYING TO HIS WIFE . THAT ARGUMENT CANNOT BE ACCEPTED . IT IS NOT A QUESTION OF WHETHER THE ERROR WAS OR WAS NOT PATENT TO THE ADMINISTRATION , BUT WHETHER IT WAS SO TO THE APPLICANT AND THE SITUATION OF AN ADMINISTRATIVE AUTHORITY , WHICH IS RESPONSIBLE FOR THE PAYMENT OF THOUSANDS OF SALARIES AND ALLOWANCES OF ALL KINDS , CANNOT BE COMPARED TO THAT OF AN OFFICIAL WHO HAS A PERSONAL INTEREST IN CHECKING THE PAYMENTS MADE TO HIM EACH MONTH .

12 SECONDLY , THE APPLICANT CLAIMS THAT THE SALARY STATEMENTS ON WHICH THE AMOUNT OF THE ALLOWANCE WAS INDICATED DID NOT ENABLE HIM TO ASCERTAIN THAT IT WAS IRREGULAR WHILE ON THE OTHER HAND , ' ' TO CALCULATE THE UPPER LIMIT ON THE INCOME OF ONE ' S SPOUSE , ABOVE WHICH THE ALLOWANCE IS NO LONGER PAID . . . IS COMPLICATED AND WOULD BE A TASK FOR AN EXPERT ' ' .

13 THE APPLICANT CANNOT CLAIM THAT HE WAS UNAWARE OF THE AMOUNT OF THE REMUNERATION AND OTHER ALLOWANCES RECEIVED BY HIS WIFE AS AN OFFICIAL OF THE COMMISSION SINCE UNTIL A SHORT TIME BEFORE THE DIVORCE THE SALARY OF BOTH PARTIES WAS AT THEIR OWN REQUEST PAID INTO THE SAME BANK ACCOUNT . MOREOVER , AT THE PERIOD IN QUESTION ARTICLE 1 OF ANNEX VII TO THE STAFF REGULATIONS STATED IN THE FORM OF A FIGURE ( BFR 250 000 SUBSEQUENTLY RAISED TO BFR 292 500 ) THE UPPER LIMIT ON THE SPOUSE ' S INCOME BEFORE DEDUCTION OF TAX ABOVE WHICH PAYMENT OF THE HOUSEHOLD ALLOWANCE CEASES . ACCORDINGLY , WHERE , AS IN THIS INSTANCE , THE NET AMOUNT OF THE SPOUSE ' S REMUNERATION , AS INDICATED ON THE SALARY STATEMENT , ALREADY EXCEEDED THOSE UPPER LIMITS BY A CONSIDERABLE AMOUNT ( THE STATEMENT FOR JANUARY 1975 INDICATED A NET MONTHLY SALARY OF BFR 33 091 ) ANY NORMALLY CAREFUL OFFICIAL SHOULD CLEARLY HAVE BEEN PUT ON NOTICE THAT HIS RIGHT TO THE HOUSEHOLD ALLOWANCE WAS DOUBTFUL AND THAT IT WAS , AT THE LEAST , NECESSARY TO MAKE A CHECK . THE TERM ' ' PATENTLY SUCH ' ' IN ARTICLE 85 OF THE STAFF REGULATIONS DOES NOT IMPLY THAT THE OFFICIAL WHO RECEIVES UNDUE PAYMENT IS EXONERATED FROM ANY EFFORT TO REFLECT OR CHECK BUT RATHER THAT RECOVERY IS DUE WHERE THE ERROR IS ONE WHICH DOES NOT ESCAPE THE NOTICE OF AN OFFICIAL EXERCISING ORDINARY CARE .

14 ALL THE CIRCUMSTANCES OF THE CASE AND THE ARGUMENTS RELIED ON BY THE APPLICANT SHOW THAT IF HE DID NOT BECOME AWARE OF THE ADMINISTRATIVE ERROR FROM WHICH HE BENEFITED UNDULY THAT WAS ONLY BECAUSE HE DID NOT PROCEED TO CARRY OUT CHECKS WITH THE ORDINARY DEGREE OF CARE TO BE EXPECTED OF AN OFFICIAL OF HIS LEVEL WHO , FURTHERMORE , PERFORMED HIS DUTIES AT THE FINANCING AND AUDITING DIVISION OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND , WHICH IMPLIES A KNOWLEDGE OF ACCOUNT ENABLING HIM TO CARRY OUT THE NECESSARY CHECK MORE EASILY .

15 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT IN THIS INSTANCE THE COMMISSION MADE A CORRECT USE OF ARTICLE 85 OF THE STAFF REGULATIONS , WITH THE RESULT THAT THE APPLICATION MUST BE DISMISSED .

COSTS

16 UNDER ARTICLE 96 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . AS THE APPLICANT HAS FAILED IN HIS SUBMISSIONS HE MUST BE ORDERED TO PAY THE COSTS .

HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .