C-310/87

OPINION OF MR TESAURO — CASE 310/87

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 1 December 1988""

applicant at the hearing, the observations of Mr President, my predecessor, Mr Advocate General Members of the Court, Mayras, in Case 252/78 (Broe v Commission [1979] ECR 2393). On the one hand the solutions adopted to the problem of the recovery of undue payment by the law governing the public service in the Member States are in general more severe than 1. The problem before the Court does not Article 85 of the Staff Regulations. On the seem to me to present much difficulty, in other, the intention of the Community legis­ view of the clarity of the rules cited and lature when amending the Staff Regulations the previous case-law of the Court. in 1972 was clearly to impose the principle Furthermore, the applicant's arguments and that in appropriate circumstances restitution those of the Commission, which were set of the sum wrongly received is the rule and out in the written procedure and are clearly cases in which the official may retain the presented in the Report for the Hearing, to benefit of those sums are the exception. which reference may be made, have not been changed at this hearing. In essence the question is whether a divorced official who continued to receive the household allowance after the date on which he ceased to have children dependent on him must return the sums wrongly received.

Finally, I do not think it necessary to in this case the applicant can maintain that consider the issue of deceit, suggested by he has exercised the care that may be the applicant at the hearing without any expected of an official of his level (A 2) and supporting evidence. his seniority (28 years), which he himself highlighted at the hearing. First of all, he received each month his salary slip, on 4. Obviously there may well be border-line which was shown the amount of the cases in which in spite of the care which an household allowance. Secondly, simple official should normally display he is not perusal of Article 1 of Annex VII to the able to appreciate the wrongful nature of Staff Regulations must enable an official of sums received. In such cases the official his grade and administrative responsibilities must adduce evidence to justify his failure to appreciate that from the moment when a to notice the mistake made by the adminis­ divorced official no longer has dependent tration; the applicant in the present case has children payment of the household not done so, and indeed could not have allowance is unjustified. done so in view of the clarity of the rule in question. To conclude, I thus think that the applicant has not given evidence of the normal degree 5. I should add that the Court's case-law of care corresponding to his grade and points unequivocally to the need to responsibilities in order for the exceptions determine the required degree of diligence and not the rule in Article 85 to apply; the by reference to the specific circumstances Commission was therefore right to apply and not in the abstract. I do not think that Article 85.