1 THE APPLICATION RELATES TO A DISPUTE BETWEEN THE COMMISSION AND THE APPLICANT REGARDING RECOVERY OF SUMS OVERPAID TO THE LATTER, AS HEAD OF HOUSEHOLD ALLOWANCE AND THE PROPORTION OF SUBSISTENCE ALLOWANCE RELATING TO THE CAPACITY AS HEAD OF HOUSEHOLD, AS A RESULT OF A CHANGE HAVING TAKEN PLACE IN THE DOMESTIC CIRCUMSTANCES OF THE APPLICANT .
THE SUBJECT MATTER OF THE DISPUTE
2 THE APPLICANT, INFORMED ORALLY BY THE DEPARTMENT OF THE DIRECTORATE-GENERAL OF THE PERSONNEL OF THE MISTAKE MADE AND OF THEIR INTENTION TO RECOVER ALL THE SUMS OVERPAID, SUBMITTED IMMEDIATELY ON 23 FEBRUARY 1973, UNDER ARTICLE 90 OF THE STAFF REGULATIONS, A COMPLAINT TO THE PRESIDENT OF THE COMMISSION IN WHICH HE REQUESTED THAT THERE BE TAKEN WITH REGARD TO HIM " A DECISION ALLOWING HIM TO RETAIN THE SUMS PAID " UNDER THE PROVISIONS OF ARTICLE 85 OF THE REGULATIONS .
3 THIS REQUEST WAS UNANSWERED SAVE BY AN ACKNOWLEDGMENT OF RECEIPT DATED 25 FEBRUARY 1972 FROM THE GENERAL SECRETARIAT OF THE COMMISSION .
4 ON 10 MARCH 1972 THE HEAD OF THE PERSONNEL DEPARTMENT OF THE DIRECTORATE-GENERAL OF PERSONNEL SENT THE APPLICANT A NOTE GIVING DETAILS OF THE REASON AND THE AMOUNT OF THE SUMS TO BE REPAID AS WELL AS THE MANNER OF RECOVERY .
5 THE APPLICATION LODGED ON 22 JUNE 1972 IS CONCERNED WITH THE IMPLIED DECISION REJECTING THE REQUEST, ARISING FROM THE FAILURE ON THE PART OF THE COMPETENT AUTHORITY TO REPLY WITHIN A PERIOD OF TWO MONTHS FROM THE LODGING OF THE COMPLAINT OF 23 FEBRUARY 1972 .
6 IT FOLLOWS ON THE OTHER HAND FROM THE VERY TERMS OF THE APPLICATION THAT THE APPLICANT DID NOT CONSIDER THE NOTE OF 10 MARCH 1972 AS A DECISION ON WHICH AN APPLICATION COULD BE MADE, ESPECIALLY AS AT THE DATE OF 22 JUNE 1972 THE PERIOD FOR AN APPLICATION AGAINST THIS ACT HAD EXPIRED .
7 IT FOLLOWS THAT THE ADMISSIBILITY AND BASIS OF THE APPLICATION MUST BE JUDGED SOLELY ON THE IMPLIED DECISION OF REJECTION WHICH IS DEEMED TO BE CONSTITUTED BY THE SILENCE MAINTAINED BY THE COMMISSION WITH REGARD TO THE COMPLAINT OF 23 FEBRUARY 1972 .
THE GROUND OF LACK OF COMPETENCE
8 DURING THE COURSE OF THE ORAL PROCEEDINGS THE APPLICANT RAISED A NEW GROUND ARISING FROM THE FACT THAT THE DISPUTED DECISION WAS SIGNED BY AN OFFICIAL, I . E . THE HEAD OF THE PERSONNEL DEPARTMENT HOLDING OFFICE IN LUXEMBOURG, WHO WAS INCOMPETENT TO EXERCISE DELEGATED POWERS SUCH AS ARISE FROM THE DECISION OF THE COMMISSION OF 26 FEBRUARY 1971 REGARDING THE EXERCISE OF POWERS CONFERRED BY THE STAFF REGULATIONS ON THE APPOINTING AUTHORITY, WHICH DECISION WAS MADE UNDER THE FIRST PARAGRAPH OF ARTICLE 2 OF THE STAFF REGULATIONS .
9 ACCORDING TO THIS DECISION " RECOVERY OF UNDUE PAYMENT " DOES NOT COME WITHIN THE COMPETENCE OF THE SIGNATORY TO THE DECISION MENTIONED .
10 IT FOLLOWS FROM THE PREMISES THAT THIS PLEA RELATES TO AN ACT - THE NOTE OF 10 MARCH 1972 - WHICH IS NOT THE TRUE SUBJECT OF THE APPLICATION .
11 ON THE OTHER HAND THIS GROUND DOES NOT AFFECT THE IMPLIED DECISION TO REJECT, WHICH, ACCORDING TO THE PROVISIONS OF ARTICLE 91 ( 2 ), SECOND INDENT, OF THE REGULATIONS IN THE VERSION APPLICABLE TO THE PRESENT APPLICATION, IS DEEMED TO COME " FROM THE COMPETENT AUTHORITY ", TO WHOM THE APPLICANT HAS SUBMITTED HIS REQUEST .
12 IN THESE CIRCUMSTANCES IT IS NOT NECESSARY TO CONSIDER WHETHER THE VALIDITY OF THE NOTE OF 10 MARCH 1972 COULD HAVE BEEN AFFECTED BY THE FACT THAT, BY VIRTUE OF THE DELEGATION OF POWER AGREED TO BY THE COMMISSION, THE RECOVERY OF UNDUE PAYMENT IS ENTRUSTED TO AN OFFICIAL OTHER THAN THE ONE WHO APPEARS AS SIGNATORY TO THIS NOTE .
THE PLEA MUST THEREFORE BE REJECTED AS IRRELEVANT .
MERITS
14 THE NATURE AND THE AMOUNT OF THE OVERPAYMENTS ARE NOT DISPUTED BY THE APPLICANT .
15 THE DISPUTE RELATES SOLELY TO THE QUESTION WHETHER THE COMMISSION IS WITHIN ITS RIGHTS TO EXACT REPAYMENT OF THE DISPUTED SUMS HAVING REGARD TO ARTICLE 85 OF THE REGULATIONS, WHICH PROVIDES THAT 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 ".
16 IT IS ESTABLISHED THAT THE APPLICANT, FOLLOWING THE CHANGE IN HIS DOMESTIC CIRCUMSTANCES WHICH TOOK PLACE ABOUT 1 JULY 1970, DELAYED UNTIL OCTOBER OF THE SAME YEAR GIVING NOTICE OF THIS TO THE COMMUNITY AUTHORITIES .
17 THUS HAVING PLACED HIMSELF IN AN IRREGULAR SITUATION BY HIS OWN CONDUCT HE CANNOT RELY ON HIS GOOD FAITH TO BE RELEASED FROM THE OBLIGATION TO RETURN THE SUMS OVERPAID DURING THIS PERIOD .
18 AS REGARDS THE PAYMENT OF THE HEAD OF HOUSEHOLD ALLOWANCE FOR THE PERIOD AFTERWARDS, IT IS ESTABLISHED BY THE DOCUMENTS PRODUCED BY THE COMMISSION THAT THE SALARY SLIPS ISSUED TO THE APPLICANT FROM MARCH 1971 TO JANUARY 1972 SHOW EACH TIME THE PAYMENT OF AN ALLOWANCE AS " HEAD OF HOUSEHOLD ".
19 AS REGARDS THESE MONTHLY PAYMENTS EVEN A SUPERFICIAL EXAMINATION OF THE SALARY SLIPS WOULD HAVE SHOWN THE APPLICANT THAT HE WAS CONTINUING TO RECEIVE AN ALLOWANCE IN A CAPACITY WHICH WAS NO LONGER HIS .
20 ON THE OTHER HAND FOR THE SALARY PERIODS FROM NOVEMBER 1970 - THE FIRST MONTHLY PAYMENT FOLLOWING THE DECLARATION BY THE APPLICANT OF THE CHANGE IN HIS DOMESTIC SITUATION - UNTIL FEBRUARY 1971 THE VOUCHERS ISSUED TO THE APPLICANT DID NOT ALLOW A PERSON EXERCISING NORMAL DILIGENCE TO RECOGNIZE THE UNDUE PAYMENT OF AN ALLOWANCE AS HEAD OF HOUSEHOLD .
21 FOR NOVEMBER 1970 THE APPLICANT RECEIVED ONLY AN ADVANCE ON HIS SALARY, HIS POSITION NOT BEING AT THAT TIME COMPLETELY SETTLED .
22 FOR DECEMBER 1970, JANUARY 1971 AND FEBRUARY 1971, HE RECEIVED HIS SALARY SLIPS ON PLAIN PAPER, THE STOCK OF PRINTED FORMS HAVING BEEN TEMPORARILY EXHAUSTED, AS IS ESTABLISHED BY THE STATEMENTS OF THE COMMISSION .
23 IN ADDITION, THE ISSUE OF THESE SALARY SLIPS COINCIDED WITH AN INCREASE IN THE SALARIES PAID BY THE COMMUNITY .
24 IT IS TRUE THAT DETAILS WERE SUBSEQUENTLY GIVEN IN AN EXPLANATORY NOTE ISSUED TO THE OFFICIALS AND STAFF OF THE COMMISSION IN LUXEMBOURG ON THE SALARY COMPUTATIONS FOR FEBRUARY 1971, BUT THESE WERE NOT OF A NATURE TO PERMIT THE ACTUAL IDENTIFICATION OF THE FIGURES SHOWN IN THE SALARY SLIPS PREVIOUSLY ISSUED .
25 IT MUST BE RECOGNIZED THAT FOR THIS PERIOD THE OVERPAYMENT WAS NOT PATENT .
26 FINALLY AS REGARDS THE DAILY SUBSISTENCE ALLOWANCE PAID FOR THE PERIOD FROM NOVEMBER 1970 TO OCTOBER 1971, IT APPEARS FROM THE EXPLANATIONS GIVEN BY THE PARTIES AND THE DOCUMENTS PRODUCED BY THE COMMISSION THAT THESE ALLOWANCES WERE MADE ON A DECLARATION BY THE APPLICANT BY A SPECIAL PAYMENT DISTINCT FROM THE PAYMENT OF SALARY .
27 THE DECLARATIONS SIGNED TO THIS EFFECT BY THE APPLICANT ON FORMS SUPPLIED BY THE ADMINISTRATION CONTAIN NO VISIBLE DISTINCTION AS TO WHETHER THESE ALLOWANCES WERE CLAIMED AS HEAD OF HOUSEHOLD OR NOT .
28 ALTHOUGH THE INTERNAL ACCOUNTING DOCUMENTS OF THE COMMISSION MAKE A DISTINCTION IN THIS RESPECT, IT IS EQUALLY ESTABLISHED THAT THE VOUCHERS ISSUED TO THE APPLICANT AT THE TIME OF PAYMENT INDICATED THE GROUND OF PAYMENT ONLY IN A GENERAL MANNER AS BEING " DAILY SUBSISTENCE ALLOWANCES ".
29 IN THESE CIRCUMSTANCES IT CANNOT BE HELD AGAINST THE APPLICANT THAT HE DID NOT RECOGNIZE THE FACT THAT THESE ALLOWANCES WERE STILL BEING PAID TO HIM AT THE RATE APPLICABLE TO OFFICIALS WHO WERE HEADS OF HOUSEHOLD .
30 IT FOLLOWS FROM THE PREMISES THAT THE COMMISSION IS NOT ENTITLED TO RECOVER FROM THE APPLICANT THE UNDUE PAYMENT AS REGARDS THE ALLOWANCE AS HEAD OF HOUSEHOLD FOR THE MONTHS OF NOVEMBER 1970, DECEMBER 1970, JANUARY 1971 AND FEBRUARY 1971 AND, AS REGARDS THE DAILY SUBSISTENCE ALLOWANCES, ALL THE MONTHLY PAYMENTS FROM NOVEMBER 1970 .
31 TO THIS EXTENT THE DECISION OF THE COMMISSION MUST THEREFORE BE ANNULLED .
32 UNDER THE TERMS OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE, WHERE EACH PARTY SUCCEEDS ON SAME AND FAILS ON OTHER HEADS, THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART .
33 THE APPLICANT HAS BEEN SUCCESSFUL IN PART OF HIS CLAIM .
34 IT IS THUS APPROPRIATE THAT THE COMMISSION SHOULD PAY A PART OF THE COSTS OF THE APPLICANT, ASSESSED AT 50 PER CENT .
35 MOREOVER, UNDER THE TERMS OF ARTICLE 70 OF THE RULES OF PROCEDURE, THE COSTS INCURRED BY THE INSTITUTIONS IN PROCEEDINGS INSTITUTED BY SERVANTS OF THE COMMUNITIES SHALL BE BORNE BY THE INSTITUTIONS .
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . ANNULS THE DECISION WHEREBY THE COMMISSION REFUSED TO FOREGO RECOVERY FROM THE APPLICANT OF THE SUMS OVERPAID AS HEAD OF HOUSEHOLD ALLOWANCE FOR THE PERIOD JULY 1970 TO JANUARY 1972 AND THAT PART OF THE DAILY SUBSISTENCE ALLOWANCES ATTRIBUTABLE TO THE CAPACITY OF HEAD OF HOUSEHOLD FOR THE PERIOD FROM JULY 1970 TO NOVEMBER 1971, AS REGARDS
- THE HEAD OF HOUSEHOLD ALLOWANCE : THE MONTHLY PAYMENTS FOR NOVEMBER 1970, DECEMBER 1970, JANUARY 1971 AND FEBRUARY 1971;
- THE PART OF THE DAILY SUBSISTENCE ALLOWANCES ATTRIBUTABLE TO THE CAPACITY OF HEAD OF HOUSEHOLD : THE MONTHLY PAYMENTS FOR NOVEMBER 1970 TO NOVEMBER 1971;
2 . ORDERS THE COMMISSION TO BEAR ITS OWN COSTS AND HALF THE COSTS OF THE APPLICANT .
