C-150/96

the other party to the proceedings being:

European Parliament, represented by Manfred Peter, Head of Division in the Legal Service, acting as Agent, with an address for service in Luxembourg at the Secretariat-General of the European Parliament, Kirchberg,

T H E C O U R T (First Chamber),

composed of: L. Sevón, President of the Chamber (Rapporteur), D. A. O. Edward and P. Jann, Judges,

* Language of the case: French.

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2 As regards the legal and factual background to the dispute between Mr Galtieri and the Parliament, the Court of First Instance found:

' 1 . Pursuant to Article 1 of Annex VII to the Staff Regulations of Officials of the European Communities (hereinafter, "Annex VII" and "the Staff Regulations", respectively), in conjunction with Article 21 of the Conditions of employment of other servants of the European Communities (hereinafter "the Conditions of employment of other servants"), a member of the temporary staff who is married is in principle entitled to a household allowance equal to 5% of that person's basic salary. However, if the spouse is gainfully employed with an income before deduc­ tion of tax which is higher than the basic annual salary of an official in the third step of grade C 3, the person concerned is not to receive the household allowance save by special decision of the appointing authority.

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ORDER OF 6. 3. 1997 — CASE C-150/96 Ρ

2. Article 85 of the Staff Regulations provides that any sum overpaid is to 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. Pursuant to Article 45 of the Conditions of employment of other servants, Article 85 of the Staff Regulations applies to members of the temporary staff.

3. Mr Galtieri is a member of the Parliament's temporary staff. In July 1980 he was classified in grade Β 2. Since January 1990 he has occupied a post as adminis­ trator with the Green Group. Since July 1984 he has been married to Mrs P, who is also a member of the staff of the Community institutions.

on that date. The Parliament decided to recover the sums which it regarded as hav­ ing been unduly paid to Mr Galtieri, which amounted in total to BFR 267 628. Mr Galtieri was first informed of that decision when he was sent a copy of a note, dated 22 November 1993, from the "Staff Regulations and personnel management" service to the "payments and allowances" service, stating that as from 1 January 1992 he was " n o longer entitled to the household allowance" because of the "pro­ motion of his spouse to grade C 3/2". Subsequently, Mrs Puech, Head of the "Staff Regulations and personnel management" service, sent a letter dated 19 January 1994 to Mr Galtieri, explaining that the negative entry of BFR 267 628 on his December 1993 salary slip represented the household allowance to which he had no longer been entitled as of January 1992. In her letter, Mrs Puech stated that recovery of that sum would be spread over nine months — with BFR 30 000 per month being deducted for the first eight months — and called on Mr Galtieri, should that arrangement prove difficult to reconcile with his personal circum­ stances, to contact her.

7. By letter of 25 January 1994, addressed to Mrs Puech, Mr Galtieri challenged that decision. The Parliament confirmed its position in a reasoned letter of 4 Feb­ ruary 1994, whereupon Mr Galtieri submitted, by letter of 22 February 1994, a formal complaint under Article 90 of the Staff Regulations against the decision set out in the letter of 19 January 1994. H e sought annulment of the decision and compensation for the damage it had caused him.

'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.'

5 In paragraph 46 of the contested judgment, the Court of First Instance pointed out that, according to established case-law, the expression 'patently such' in that provi­ sion does not mean that an official who receives undue payments need make no effort to reflect or check, but rather that recovery is appropriate where the error is one which would not escape the notice of an official exercising ordinary care, who is deemed to know the rules governing his salary (see Case T-93/92 Burck ν Com­ mission [1994] ECR-SC II-201, paragraph 29, Case T-107/92 White ν Commission [1994] ECR-SC II-143, paragraph 33). The Court also recalled that, in order to determine whether the official concerned showed due care, account should be taken of his ability to make the necessary checks (Case T-38/93 Stahlschmidt ν Parliament [1994] ECR-SC II-227, paragraph 19).

6 Subsequently, in paragraph 47 of the contested judgment, the Court of First Instance identified the provision governing the award of the allowance in question, namely Article 1(3) of Annex VII to the Staff Regulations, which provides that an official is not to receive the household allowance, save by special decision of the appointing authority, if the spouse is gainfully employed 'with an annual income before deduction of tax of more than the basic salary of an official in the third step of grade C 3'. In paragraph 48, the Court concluded that that rule must be

9 In paragraph 56 of the contested judgment, the Court of First Instance concluded that, if Mr Galtieri had exercised ordinary care, he would have realized that the payments in question were patently in error. The Parliament was accordingly entitled to proceed with the recovery of the sums unduly paid by way of house-

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ORDER OF 6. 3. 1997 — CASE C-150/96 Ρ

hold allowance from 1 November 1992 to 30 November 1993. The Court also found that Mr Galtieri had placed himself in an irregular situation by reason of his own conduct — in omitting to inform the administration of his wife's promotion to grade C 3, step 4, as of 1 November 1992 — and could not therefore plead that he had acted in good faith in order to be released from the obligation to return the undue payment.

The appeal

10 In his application, Mr Galtieri claims inter alia that the Court should 'declare the appeal admissible and well founded', 'reverse' the judgment of the Court of First Instance, declare the original action well founded and, consequently, annul the Par­ liament's decision, set out in the letter of 19 January 1994, to recover the sum of BFR 267 628.

1 4 Article 119 of the Rules of Procedure provides that where an appeal is clearly inad­ missible or clearly unfounded, it may at any time be dismissed by reasoned order of the Court.

15 A straightforward comparison of the contested judgment with Mr Galtieri's account of it reveals that his understanding of the judgment is manifestly selective and incorrect. In determining whether the error was patent, the reasoning of the Court of First Instance was not based solely on the amount overpaid. The Court also took into account, on the one hand, the clarity of the rule set out in Article 1 (3) of Annex VII to the Staff Regulations, the level of Mr Galtieri's responsibili­ ties ('Category A') and the length of his professional experience with the Commu­ nity institutions ('since 1980') and, on the other, the fact that Mr Galtieri had omit­ ted to inform the Parliament of his wife's promotion.

16 In so far as Mr Galtieri asserts that the contested judgment is based on a single fac­ tor, when it is quite apparent from that judgment that the Court of First Instance took into account a series of circumstances in arriving at its decision, the appeal must be dismissed as clearly unfounded.

Costs

17 Under Article 69(2) of the Rules of Procedure, which applies to the appeal procedure by virtue of Article 118, the unsuccessful party is to be ordered to pay

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2. The appellant is ordered to pay the costs.

Luxembourg, 6 March 1997.

R. Grass L. Sevón

Registrar President of the First Chamber

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