C-71/72
ECLI:EU:C:1973:75
- Súd
- Súdny dvor Európskej únie
- IČS
- 61972CJ0071
- Zdroj
- eur-lex.europa.eu ↗
JUDGMENT OF THE COURT (SECOND CHAMBER) OF 27 JUNE 1973 1
Annemarie Kuhl
v Council of the European Communities
Case 71/72
1. Officials — Disputes with the Administration — Appeal — Time limit — Com mencement — Measure affecting a specific individual — Notification to the person concerned — Concept (Staff Regulations, Art. 91) 2. Officials — Recovery of undue payment — No due reason for payment — Awareness of the recipient — Objection — Evidence — Absence — Examination of the circumstances of the payment (Staff Regulations, Art. 85)
1. The expression 'notification ... to the 2. In, the second alternative referred to person concerned', in Article 91 of in Article 85, if the recipient disputes the Staff Regulations means the having had knowledge of the undue written Communication to the official payment, the circumstances in which concerned as required by Article 25 of the payment was made must be the Staff Regulations in the case of examined in order to determine any decision relating to a specific whether the undue payment was individual. patently evident.
In Case 71/72
ANNEMAIE KUHL, an official at the Council of Ministers of the European Communities, residing at Brussels, represented by Otto Kuhl of the Düssel dorf Bar, with an address for service in Luxembourg at the offices of Horst Hergel, 14 rue des Bains,
applicant,
v
Council of the European Communities, represented by Gonzague Lesort, Legal Adviser at the General Secretariat of the Council, with an address for
1 — Language of the Case: German.
JUDGMENT OF 27. 6. 1973 — CASE 71/72
service in Luxembourg at the offices of Emile Reuter, legal adviser of the Commission, 4 boulevard Royal,
defendant,
Application for annulment of the decision of the Council of 30 June 1972, refusing to waive a claim for recovery of overpayments,
THE COURT (Second Chamber)
composed of: P. Pescatore, President, M. Sørensen and Lord Mackenzie Stuart (Rapporteur), Judges,
Advocate-General: H. Mayras Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and procedure attending a school in the place where the family home was situated. The facts and procedure may be summarized as follows: 3. Under Article 8 of the general provisions for giving effect to the Staff 1. The applicant has been in the service Regulations relating to the grant of an of the Council of Ministers since 1958 education allowance, and at present holds the post of reviser 'the servant is responsible for notifying in the language service in Grade LA/4. . . . any change likely to cause the with She has three children of school age, two drawal or reduction of the said allow of whom attended a school in Germany ance.' until August, 1970 and for whom she received an education allowance. In September 1970 these two children left 4. These provisions were promulgated Germany to go to the European school by staff announcements addressed in Brussels where the third child was individually to all servants of the also entered. Secretariat of the Council. They were reproduced in a staff announcement of 2. Under the relevant provisions of the 26 June 1963, and following subsequent Staff Regulations, the applicant was amendments, fresh announcements were entitled only to a smaller allowance, addressed to the staff at least once a because from then on her children were year. These announcements contained, in
KUHL v COUNCIL
addition to the amendments, the full appointing authority, replied to the up-dated provisions in force. applicant's note by a letter which begins as follows: 5. On 15 January 1971 the applicant lodged with the administrative depart 'In reply to your letter of 19 January ment of the Council the form 1972, I have to inform you that, after 'Application for reimbursement of thorough investigation, I must confirm education costs', where, under the head the notification sent to you by the 'Educational establishment attended', she administration concerning the recovery showed the European school in Brussels of the education allowances overpaid.' for her three children.
By telephone she notified the 10. On 13 March 1972, the applicant sent a letter to an official of the appropriate departments of the change of school and, a few days later, received Personnel Division requesting him to refund the 28 691 BF and in future to a copy of a form which had been examined in the meantime by the reduce her salary by only 2 000 BF per administrative departments and which month. The letter begins thus: the accounts department had headed in 'My request for the waiver of recovery manuscript 'Change of school on 1 of the education allowances overpaid to September 1970'. me has been rejected by a notification The applicant had also signed the dated 10 March 1972 passed to me undertaking to 'notify any change in the today.' circumstances shown in this application'. 11. On 23 March the Director of the 6. In January 1972 the applicant was Personnel Division of the Council informed by the accounts department rejected this request. that for a period of 16 months she had been receiving an overpayment of education allowance. 12. On 7 June 1972 the applicant addressed a letter to the Secretary-Gen 7. The sum of 28 691 BF was deducted eral of the Council, headed 'Recovery from her pay in January 1972, as she cf amounts overpaid (education had been informed it would be. allowances) — complaint under Article 90 of the Staff Regulations.' 8. On 19 January 1972 the applicant addressed a note to the Director of the 13. On 30 June 1972 the Secretary- Personnel Division headed 'request for General addressed a note to the waiver of recovery of the overpayments- applicant which simply confirmed the excess education allowances during the note of 10 March 1972. years 1970 and 1971' The first paragraph of the note read: 14. The present appeal against the decision of the Council was entered in 'I have recently been informed that during the years 1970 and 1971 I was the Court Register on 2 October 1972. erroneously paid too large an education On the report of the Judge-Rapporteur, allowance. having heard the Advocate-General, the This sum, which now amounts to 28 691 Court (Second Camber) decided to BF, will be deducted from the January open the oral procedure without any payment of arrears.' preparatory enquiries. The remainder of the note deals with the The parties presented oral argument at allegedly unjust nature of the recovery. the hearing on 15 March 1973.
9. On 10 March 1972 the Secretary The Advocate-General presented his General of the Council, being the opinion at the hearing on 11 April 1973.
JUDGMENT OF 27. 6. 1973 — CASE 71/72
II — Submissions of the Regulations. The complaint was rejected parties by the appointing authority on 30 June 1972. The application is consequently The applicant asks the Court: admissible because the applicant, within the time limit allowed, brought both the — to declare the application admissible complaint against the Council's decision and justified on the merits; to reject her request and the disputed — to say that the applicant was application. unaware of the irregularity affecting For the defendant, it is by virtue of the the payments made to her and that document dated 3 January 1972 signed this was not so apparent that the by the authorizing officer and subse applicant could not have failed to be quently approved by the financial aware of it; controller that the amount of the sums overpaid was fixed. This document, — to annul the decision of the drawn up by the competent authority, defendant dated 30 June 1972 and to constituted at this stage a decision say that the defendant has no claim because it indicates succinctly but clearly to recover the overpayment; that the education allowances had been calculated on a different basis from that — to order the defendant to pay all costs. which should have been applied in the applicant's case after her two children The Council asks the Court: returned to Brussels. The note of 19 January 1972, whereby the applicant — to reject the application as brought before the appointing authority inadmissible for being out of time; a complaint against the decision taken concerning her, should be considered as — as a subsidiary plea, to reject the a complaint within the meaning of application as unfounded and to say Article 90 of the Staff Regulations that the conditions set out in Article because it manifestly led to a decision 85 of the Staff Regulations for the being obtained from the appointing recovery of undue payment are authority, which on 10 March 1972 fulfilled and the authority is effectively rejected this complaint. therefore entitled to demand it; An action against this decision should — to order the applicant to bear the have been brought within a time limit of costs. 3 months.
The applicant's answer is that the documents presented by the Council, the III — Pleas and arguments Staff notes on 'salaries and allowances' of the parties cannot be considered as a decision: a decision giving ground for complaint The pleas and arguments of the parties should have been addressed to the may be summarised as follows: applicant and should have mentioned the grounds on which, in the Council's Admissibility opinion, the conditions for the The applicant contends that the disputed application of Article 85 were fulfilled. decision was taken by the Secretary Moreover the accounting documents, General of the Council on 10 March allegedly drawn up on 3 January 1972, 1972, the date on which he rejected her never reached the applicant. She was request of 19 January 1972. The only orally informed by an official in applicant submitted a complaint on 7 Grade C that she had received an June 1972 against this rejection in overpayment; he also informed her that accordance with Article 90 of the Staff the administration would effect recovery
KUHL v COUNCIL
on the payment of arrears due by reason Merits of the retrospective increase in salaries payable in January 1972. The applicant claims that overpayments amounting on average to about 1 700 BF It is not therefore possible to speak of a per month did not represent for a Grade decision which could be the subject LA/4 salary a sum which would cause matter of a complaint any earlier than any surprise. Besides, as her children had the time of the decision of 10 March not in the past attended a school in the 1972 to reject the application. place where the family home was The defendant's reply is that the situated and, her youngest child having applicant received a duplicate of the just been entered at the school for the notes in question. The printed words on first time, she did not consider the the form were designed for this purpose. increase in the education allowance It bore the heading 'Copy' and the name anything out of the ordinary.
It is also of the party concerned. noteworthy that the overpayment was made at a time when work was The payment of arrears of salaries was in fact carried out by the accounts particularly heavy. The applicant relied department which can confirm having on the normal functioning of the administrative services. been instructed to do so. She claims that knowledge of the matter In her complaint of 19 January 1972 the in dispute or the impossibility of the lack applicant made no reference to the of such knowledge can only be a absence of a decision in writing; nor did condition for the admissibility of the she put forward this complaint after right of recovery and that the burden of receiving the decision of 10 March 1972 proof is on the defendant; in this case which stated however: 'after thorough the right of recovery therefore lost its investigation, I must confirm the
legal basis. As a subsidiary plea the notification sent to you by the administration . . .' applicant makes the point that Article 85 constitutes a power and it would be a Supposing that the applicant's statement misuser if the defendant intends to were accepted that the decision was exercise it after such a long delay. neither given in writing, nor The defendant's reply is that the well-founded and that it never reached competent authority, before deciding to her, her application remains nonetheless reject the applicant's request, took
inadmissible. It is in fact clear that a account of her material and social decision was taken, otherwise the circumstances and did not consider that applicant could not have contested it in these circumstances justified any her complaint of 19 January. Moreover departure from the principle of recovery in this complaint she did not dispute the of sums received by way of formal validity of the decision; she overpayment. merely disputed its contents. The defendant contends that the Furthermore both her pay-slip and the applicant, knowing the relevant discussions she had with officials of the provisions could not in any event be administration would have shown her unaware that there was no due reason the existence of a decision whose formal for the payment. Moreover a duplicate validity she should have disputed within of the request made by the applicant in the legal time limits.
January 1971 was sent to her, completed The alleged decision of 30 June 1972 by the salaries branch on the basis of the was only a confirmation of the note of sum she should have received.
10 March. Moreover, according to the The defendant makes the further Court's consistent rulings, decisions observation that the applicant is partly which are purely confirmatory do not set responsible for the administrative error a new time limit. because she failed in her clearly defined
JUDGMENT OF 27. 6. 1973 — CASE 71/72
obligation 'to notify any change of of the Staff Regulations but this error circumstances as declared'. cannot of itself justify the retention of an The request for repayment of education advantage improperly acquired. The costs, normally made at the beginning of only question which arises is that of the year was not made in this case until knowing whether the party concerned 4 months after the change in question was aware of the overpayment or had taken place and cannot therefore be whether it was patently such that she could not fail to be aware of it. considered as satisfying the requirements of the implementing provisions Only if the applicant refuses to learn concerning education allowances. what are her rights and obligations or to take cognizance of information sent to The applicant's reply is that the general her personally, at frequent intervals and promulgation of the implementing in clear terms, can she contend that it is provisions dates partly from 1963, when normal to receive every month a sum her eldest child was not yet three years' not due, amounting to almost three old. times the normal education allowance. So long as there is no particular ground The request for reimbursement of for suspicion minor errors pass educational expenses was in no way unnoticed given that the final result was intended as a notification to the feasible. administration of changes which had The defendant's reply is that an error on occurred. The obligation to notify an the part of the institution necessarily alteration is entirely different from a forms the basis for recourse to Article 85 request for an allowance.
Grounds of judgment
1 The applicant, by an appeal entered in the Court Registry on 2 October 1972, asks for annulment of the decision of the Secretary-General of the Council of 30 June 1972, which rejects her complaint of 7 June 1972 against the decision of 10 March 1972, refusing to waive recovery of the education allowances overpaid following her children's change of school.
Admissibility
2 The Council has raised a plea of inadmissibility by reason of the appeal being out of time.
The decision to recover the overpayment was actually taken as at 3 January 1972.
KUHL v COUNCIL
The applicant's note of 19 January 1972 was a complaint against this decision within the meaning of Article 90 of the Staff Regulations.
The Secretary-General of the Council rejected this complaint on 10 March 1972 and an application against this decision should have been lodged within three months.
3 Under Article 91 (2) of the Staff Regulations, in the form then in force, appeals must be made within three months from the time of notification of the disputed decision to the person concerned.
The term 'notification ... to the person concerned' in Article 91 of the Staff Regulations contemplates written communication to the official concerned as required by Article 25 of the Staff Regulations in case of any decision relating to a specific individual.
4 The defence alleges that the decision objected to in the appeal is constituted by the document of 3 January 1972 and that the latter had been communicated to the applicant.
The slip adjusting her salary addressed to the applicant on 15 January 1972 constituted at least a communication to her of the decision taken on 3
January, 1972.
5 Even if the applicant had received these documents — which she disputes — they do not explicitly show that a decision had been taken under Article 85 of the Staff Regulations, as they were merely accounting slips.
6 It follows that the only decision taken expressly under this provision is contained in the letter dated 10 March 1972.
7 The applicant made a complaint against this decision to the appointing authority and she has brought the present appeal within the time limits against the express rejection of this complaint.
It follows that the application is admissible.
JUDGMENT OF 27. 6. 1973 — CASE 71/72
Merits
8 Article 85 of the Staff Regulations provides two conditions in which a sum overpaid may be recovered.
9 In the first case, the overpayment may be recovered if the recipient was aware that there was no due reason for the payment.
This condition requires actual knowledge on the part of the recipient of the irregular nature of the payment.
10 In the second case, any sum overpaid may be recovered if the fact of the overpayment was patently such that the recipient could not have been unaware of it.
11 It follows that if the recipient denies having been aware of it and if there 11 no proof of any knowledge of the irregularity of the payment, then the circumstances in which the payment was made must be examined in order to determine whether the irregularity of the payment should have been plain to see.
12 Under Article 8 of the general implementing provisions dealing with the conditions for the grant of the education allowance 'the employee is responsible for notifying any change involving the withdrawal or reduction of the education allowance'.
Moreover the applicant had signed an undertaking in this sense at the time of her request for reimbursement of the education costs.
13 The applicant should have known that the change of school by her two elder children, from Germany to the place where the family home was situated, involved a reduction of the education allowance.
14 Not until 15 January 1971 did she notify her institution of the change of school which had taken place from 1 September 1970.
KUHL v COUNCIL
In these circumstances she is herself responsible for the irregularity in the rate at which the education allowance was paid to her for the last four months of the year 1970.
15 Since, even after this notification of change of school, she continued to receive as before the same education allowance for the two elder children, the applicant should have been aware of the perpetuation of the error.
is In the circumstances the fact of overpayment was patently such that the applicant could not have been unaware of it.
The Council therefore properly required recovery of the overpayment.
Costs
17 The applicant has failed in her application.
Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.
However, under Article 70 of the Rules of Procedure, costs incurred by the institutions, in applications by servants of the Communities, shall be borne by the institutions.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaties establishing the European Communities; Having regard to the Protocol on the Statute of the Court of Justice; Having regard to the Staff Regulations of Officials of the European Communities, especially Articles 85, 90 and 91; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;
OPINION OF MR MAYRAS — CASE 71/72
THE COURT (Second Chamber)
hereby:
1. Dismisses the application;
2. Orders each party to bear its own costs.
Pescatore Sørensen Mackenzie Stuart
Delivered in open court in Luxembourg on 27 June 1973.
A. Van Houtte P. Pescatore
Registrar President of the Second Chamber
OPINION OF MR ADVOCATE-GENERAL MAYRAS
DELIVERED ON 11 APRIL 1973 1
Mr President, — Where the children of the official
Members of the Court, attend a school away from the place where the family home is situated, I — The Facts the sum granted is the maximum monthly allowance. By way of family benefits listed under — Where the children attend an Article 67 of the staff regulations, establishment in the area in which officials of the European Communities the family home is situated, the receive for each dependent child who is official must choose between a in regular full-time attendance at an flat-rate allowance which is slightly educational establishment, an education less than the maximum, and repay allowance which, by virtue of Article 3 ment of the costs actually incurred, Annex VII of the staff regulations, is on evidence that they were so incur equal to the actual education costs up to red. a monthly maximum. Finally, by Article 8 of the general However, the general provisions for provisions for giving effect to the staff giving effect to these Regulations regulations, officials are obliged to adopted under the conditions laid down inform the Administration of any change in Article 110 make a distinction in the educational situation of their between two situations: children which is likely to lead to the
1 — Translated from the French.