JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

10 March 2009

Case F-100/07

Kyriakos Tsirimiagos

v

Committee of the Regions of the European Union

(Civil service – Officials – Remuneration – Transfer of part of the emoluments outside the country of employment – Article 17(2)(b) of Annex VII to the old Staff Regulations – Building savings account – Recovery of amounts wrongly paid – Conditions – Irregularity of the transfers – Obvious nature of the irregularity)

Application: brought under Articles 236 EC and 152 EA, in which Mr Tsirimiagos essentially seeks, first, annulment of the decision of the Committee of the Regions of 21 November 2006 to recover, pursuant to Article 85 of the Staff Regulations, the amounts paid to him in respect of the correction coefficient on part of his emolument transferred to France from April 2004 to May 2005, totalling EUR 2 120.16, second, annulment, in so far as is necessary, of the decision of 21 June 2007 rejecting his complaint, in so far as that decision confirms the recovery of an amount of EUR 2 038.61, and finally, an order that the Committee of the Regions reimburse him the sum of EUR 2 038.61 withheld from his remuneration.

Held: The decision of the Committee of the Regions of 21 November 2006, as amended by the decision of 21 June 2007, is annulled in so far as it orders the recovery of sums resulting from the application of the correction coefficient to the transfers made by the applicant to his building savings account from April 2004 to May 2005, amounting to EUR 15 300. The Committee of the Regions is ordered to reimburse the applicant the sum of EUR 15 300, together with default interest, withheld from his remuneration, corresponding to the application of the correction coefficient to the transfers made to his building savings account from April 2004 to May 2005; that interest is to run from the date of the recovery until the date of the actual payment, at the rate fixed by the European Central Bank for its main refinancing operations and applicable during the period concerned, increased by 2 points. The remainder of the action is dismissed. The Committee of the Regions is ordered to pay, in addition to its own costs, half of the applicant’s costs. The applicant is to bear half of his own costs.

Summary

1.      Officials – Actions – Act adversely affecting an official – Definition – Note from the administration informing the official of its intention to recover amounts wrongly paid in view of his failure to provide a satisfactory explanation or additional supporting documentation – Not included

(Staff Regulations, Arts 90 and 91)

2.      Officials – Recovery of undue payments – Conditions – Patent overpayment – Known by the official concerned – Transfer of part of the official’s emoluments into a building savings account outside his country of employment

(Staff Regulations, Art. 85; Annex VII, Art. 17(2))

3.      Officials – Actions – Unlimited jurisdiction – Compensation for material harm suffered by an official as a result of the unlawful recovery of an amount – Repayment – Grant of default interest

(Staff Regulations, Art. 91(1))

1.      A note from the administration informing an official that it intended, in view of his failure to provide a satisfactory explanation or additional supporting documentation, to recover certain sums wrongly paid, and stating neither the amount of the sum to be recovered or how the recovery was to be effected, cannot be regarded as an act adversely affecting the official, since it does not directly and immediately affect his interests by bringing about a distinct change in his legal situation, nor does it constitute the adoption of a definitive position by the administration. Furthermore, such a note does not allow the official concerned to assess whether it is appropriate for him to contest the note by lodging a complaint under Article 90(2) of the Staff Regulations.

(see paras 41-42)

2.      It is apparent from Article 85 of the Staff Regulations that the recovery of amounts wrongly paid is subject to two cumulative conditions: first, that the payment which the administration seeks to recover must have been irregular, and second, that the official must have known of that irregularity or that the irregularity must have been so obvious that the official could not fail to be aware of it.

Even assuming that Article 17(2) of Annex VII to the Staff Regulations in the version prior to the entry into force of Regulation No 723/2004 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants, which allows an official to transfer part of his emoluments outside his country of employment in order to cover expenditure arising in particular out of commitments proved to have been regularly undertaken by him outside the country where his institution has its seat or outside the country where he carries out his duties, does not apply where the transfer is to a building savings account recognised as such by the legislation of a Member State, the irregular nature of such a payment is not so obvious that the official concerned could not fail to be aware of it, particularly where it is not unequivocally clear from the wording of the applicable provisions whether that rule applies to such a transfer, and where the conduct of the competent departments might reasonably have led the official to believe that they were inclined to deem it applicable.

However, even assuming that the transfer to a building savings account falls within the material scope of Article 17(2) of Annex VII to the Staff Regulations, in the version referred to above, such a transfer may not exceed the ceiling for that account laid down in national legislation. Therefore, the transfer of part of an official’s emoluments over and above that ceiling cannot in any circumstances be regarded as regular. Such an irregularity must be regarded as obvious for an official with experience in the field of Community civil service law.

(see paras 55, 60, 61, 64, 66, 70, 74-75)

3.      The Community civil service judicature, which has unlimited jurisdiction in financial matters, has the power to order, by way of compensation for material harm, repayment to the applicant of an amount wrongly recovered by the administration, with default interest from the date of the recovery until the date of the actual payment.

(see paras 79-80)

See:

T-29/01 Puente Martín v Commission [2002] ECR-SC I‑A‑157 and II‑833, para. 88; T-22/01 Efthymiou v Commission [2003] ECR-SC I‑A‑177 and II‑891, para. 45

F-126/05 Borbély v Commission [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 73