JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

16 July 1998

Case T-156/96

Claus Jensen

v

Commission of the European Communities

‛Officials — Pay — Installation allowance — Recovery of undue payments’

Full text in French   II-1173

Application for:

annulment of the Commission decision of 13 November 1995 to recover the amount paid to the applicant by way of installation allowance following the cancellation of his contract as a member of the temporary staff and, in the alternative, damages in respect of the consequent harm.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant was engaged under a contract of indeterminate duration taking effect on 16 April 1994 in the cabinet of a member of the Commission, Mr Christofersen, as a member of the temporary staff in grade A 4, step 3.

According to Article 24(1) of the Conditions of Employment of Other Servants (RAA), a member of the temporary staff is to receive an installation allowance at an amount determined by the expected period of service.

As regards the expected length of service of members of the temporary staff working in the cabinet of a member of the Commission, a Commission decision of 23 April 1969 implementing Article 24 of the RAA provides that ‘... The expected length of service of members of the temporary staff employed in the cabinet of a member of the Commission shall be determined ... with reference to the term of office of that member.’ That decision is reproduced in a questionnaire from the Commission, entitled ‘Entry into service — Form 5’, which each probationer or member of the temporary staff is required to complete when the installation allowance is paid (Form 5).

It is apparent from the papers before the Court that in order to facilitate the installation of members of the temporary staff employed in the cabinet of a member of the Commission, the Commission pays them the full installation allowance by way of advance, on condition that if they leave the service before the expiry of the period which would entitle them to the full allowance they are on their departure to repay the part of the allowance not due to them having regard to the total actual length of service (see Form 5, p. 1) (system of advance).

By decision of 29 April 1994 the applicant was granted half of the amount of the installation allowance and the second half was paid to him in September 1994 when his family joined him at his place of employment in Brussels. It is stated that Mr Jensen was informed of the provisions of the rules governing the grant of the installation allowance and that, furthermore, ‘those conditions are clearly described in the form which he completed in order to obtain that allowance’.

Mr Christofersen's mandate was not renewed and the applicant's contract as a member of the temporary staff came to an end on 1 December 1994. The applicant was posted as a national expert to the Directorate-General for Industry (DG III).

By letter of 11 October 1995 the Commission informed the applicant that he had incorrectly received the amount of BEF 565976 in the form of a ‘reinstallation allowance’ and was therefore required to repay the amount unduly received to the Commission. The applicant replied that that allowance was definitively established in his favour.

By letter of 13 November 1995 the Head of Unit 6 ‘Pensions and relations with former staff’ of Directorate B ‘Rights and obligations’ of the Directorate-General for Personnel and Administration (DG IX), Mr De Graaf, informed the applicant that the expression ‘reinstallation allowance’ in the letter of 11 October 1995 was incorrect and that what was actually referred to was repayment of the ‘installation allowance’.

On 12 February 1996 the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Communities (Staff Regulations) against the decision to recover the sum of BEF 337639 in Mr De Graaf's letter of 13 November 1995 (contested decision). By a decision in a letter of 8 July 1996 the appointing authority rejected the applicant's complaint.

By letter of 15 November 1996 the Commission informed the applicant that from December 1996 to November 1997 a sum equivalent to BEF 28136 would be deducted each month from the daily allowance paid to him.

It was in those circumstances that, by an application lodged at the Court Registry on 6 October 1996, the applicant brought the present action.

Substance

The claim for annulment of the decision of 13 November 1995

First plea, alleging a lack of legal basis for the contested decision and a breach of Article 45 of the RAA and Article 85 of the Staff Regulations

The applicant maintains in substance that the Commission should have demanded repayment of the installation allowance on the basis of the system of advance, assuming that that system is legal, and Article 24 of the RAA rather than base its decision on Article 45 of the RAA and Article 85 of the Staff Regulations (paragraph 32).

There is no reason to annul an administrative decision on the ground of the wrong legal basis where such an error did not have a decisive influence on the administration's assessment. In the present case the choice of Article 45 of the RAA and Article 85 of the Staff Regulations as the formal legal basis of the decision of 13 November 1995 ordering repayment of the installation allowance instead of the system of advance adopted by the Commission to implement Article 24 of the RAA had no decisive influence on the actual content of that decision.

This first part of the plea must therefore be rejected as inoperative (paragraphs 33 and 34).

As regards the alternative part of the plea, whereby it is alleged that in any event the conditions for repayment of the undue payment are not met because the decision to pay the allowance in issue was lawful when it was adopted in April 1994, the Court considers that that argument fails to take account of the fact that the system of advance, practised in the context of the implementation of the decision of 23 April 1969, remains subject to the condition that the right to the installation allowance depends on the actual period during which the person concerned is employed in the cabinet of a member of the Commission. It follows that payment of the indemnity allowance to the applicant in April 1994 was lawful only in so faias it was made in the form of an advance and therefore recoverable in accordance with that system (paragraphs 36 and 37).

See: T-75/95 Giinzler Aluminium v Commission [1996] ECR II-497, para. 55; C-268/94 Portugal v Council [1996] ECR I-6177, para. 79; T-57/96 Costantini v Commission [1997] ECRSC H-1293, paras23and24

Second plea, alleging the illegality of the system of advance

While it is true that neither Article 24 of the RAA nor the Commission decision of 23 April 1969 expressly provides that the Commission may grant members of the temporary staff belonging to the cabinet of a member of the Commission an advance of all or part of the installation allowance, there is no reason, having regard to the interests of the members or the staff concerned and the purpose of the installation allowance, why the Commission, instead of taking a definitive decision on the entitlement of the servant concerned to the grant of the installation allowance based on the expected length of service, should not grant him an advance of all or part of the allowance in order to facilitate his installation in his place of employment (paragraphs 47 and 48).

See: 140/78 Verhaaf v Commission [1978] ECR2117

The introduction by the Commission of a system of advance of part of the full installation allowance to members of the temporary staff required to work in the cabinet of a member of the Commission, with the aim of facilitating their installation in Brussels, cannot be considered contrary to the Commission decision of 23 April 1969 and Article 24 of the RAA (paragraph 49).

Third plea, alleging a breach of Article 45 of the RAA and Article 85 of the Staff Regulations, in that the conditions governing repayment of the undue payment are not met

According to Article 85 of the Staff Regulations, to which Article 45 of the RAA refers, ‘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’. It is for the administration to show that the recipient was aware that there was no due reason for the payment in question. If the recipient disputes that he was aware that there was no due reason for the payment it is necessary to examine the circumstances in which the payment was made in order to establish whether the fact of the overpayment was patent. The words ‘patently such’ are to be interpreted as meaning that the question is not whether the error was patent to the administration but whether it was patent to the recipient. Not only is the latter not exempted from making any effort to give consideration to and check payments made to him, he is required to make repayment immediately an error is made which would not escape a normally diligent servant or official who is deemed to know the rules governing his pay (paragraph 63).

In the present case the Court points out that the conditions in which the installation allowance was paid to the applicant were set out in Form 5, which the applicant signed upon taking up his post and the second page of which was detached and added to his personal file (paragraph 64).

Even supposing that the applicant was not aware of the first page of Form 5, the fact that there was no due reason why the payment should have been made on a permanent basis was so patent that the applicant ‘could not have been unaware of it’ for the purposes of Article 85 of the Staff Regulations (paragraph 67).

See: 252/78 Broe v Commission [1979] ECR 2393; 142/78 Berghmans v Commission [1979] ECR 3125; 310/87 Stempels v Commission [1989] ECR 43; T-107/92 White v Commission [1994] ECR II-143; T-38/93 Stahlschmidt v Parliament [1994] ECRSC II-227; T-122/95 Chaberl v Commission [1996] ECRSC II-63; T-235/94 Galtieri v Parliament [1996] ECRSC II-129

Claim for the annulment of the Commission decision of 15 November 1996 and for an order directing the Commission to repay the applicant the sums received pursuant to that decision

As regards the claim for the annulment of the Commission decision of 15 November 1996, it should be pointed out that, contrary to Article 44(1) of the Rules of Procedure, which provides that in order to be admissible the application must state,inter alia, a ‘summary of the pleas in law on which [it] is based’, the applicant did not raise any plea or argument in support of that claim in his reply. His claim is therefore inadmissible (paragraph 75).

As regards the applicant's claim that the Commission must be ordered to repay the sums already received pursuant to the decision of 15 November 1996, the Community judicature has no jurisdiction to issue directions to the Community institutions (paragraph 76).

See: T-99/95 Stött v Commission [1996] ECR-SC II-1583

Claim for compensation

Liability on the part of the Community supposes that a number of conditions are met as regards the unlawfulness of the conduct of which the institutions are accused, actual damage and a causal link between the conduct and the damage alleged to have been suffered (paragraph 85).

See: C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, para. 42

As is apparent from examination of the pleas submitted in the context of the claim for the annulment of the decision of 13 November 1995, the applicant has failed to show that the Commission committed an error susceptible of rendering it liable where it paid him the installation allowance in the form of an advance.

The claim for damages in respect of pecuniary and non-pecuniary harm must therefore be rejected without its being necessary to consider whether the other two conditions are met (paragraphs 88 and 89).

Operative part:

The application is dismissed.