AL v Commission (Civil service - Family allowances - Judgment) [2023] EUECJ T-714/21 (24 May 2023)

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(Civil service – Officials – Remuneration – Family allowances – Dependent child allowance – Article 2(4) of Annex VII to the Staff Regulations – Person treated as a dependent child – Conditions for granting – Withdrawal of entitlement to the allowance – Recovery of undue payments – Article 85 of the Staff Regulations)

European Commission, represented by T.S. Bohr, L. Hohenecker and D. Milanowska, acting as Agents,

composed of R. da Silva Passos, President, N. Półtorak (Rapporteur) and T. Pynnä, Judges,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

1 By his action based on Article 270 TFEU, the applicant, AL, seeks annulment of the decision of the Office for the Administration and Payment of Individual Entitlements (PMO) of the European Commission of 11 January 2021 (‘the contested decision’), which sought, in essence (i) to reject his request for an allowance for his mother as a person treated as a dependent child on the basis of Article 2(4) of Annex VII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) for the period from 1 November 2020 to 31 October 2021 and, (ii) to order the recovery of the sums which he had received by way of that allowance for the period from 1 November 2019 to 31 October 2020.

2 The applicant has been an official in the General Secretariat of the Council of the European Union since 1 December 2007.

3 By decision of 21 November 2019, the PMO granted the applicant, on a provisional basis, the renewal of an allowance for his mother as a person treated as a dependent child under Article 2(4) of Annex VII to the Staff Regulations for the period from 1 November 2019 to 31 October 2020 (‘the decision of 21 November 2019’).

4 On 22 July 2020, the applicant was informed by the Anti-Fraud Office (OLAF) that he was the subject of an investigation, opened at the end of 2016, concerning possible fraud relating to his family composition declaration and the requirements for obtaining family allowances which he had applied for (‘the OLAF investigation’).

5 By email of 6 October 2020, the applicant contacted the PMO to inform him that it followed from the OLAF investigation that his mother might have an apartment in Bucharest (Romania). He confirmed that information by email of 28 October 2020, stating that his mother had owned that apartment since December 1996.

6 By the contested decision, the PMO informed the applicant that it had decided to review the decision of 21 November 2019. The reason given was that, on the basis of the information newly provided by the applicant concerning the apartment owned by his mother in Bucharest and in so far as he had not provided sufficient evidence that his mother had spent at least 180 days a year in Belgium, the place of residence which had to be taken into account in assessing his request for an allowance was Romania. According to the PMO, it was apparent from the calculations made taking that change into account that the allowance for his mother as a person treated as a dependent child should not have been granted to him for the period from 1 November 2019 to 31 October 2020 and that the sums which had been paid to him in that regard should therefore be recovered pursuant to Article 85 of the Staff Regulations. In addition, the PMO also considered that that allowance should not be granted to the applicant for the period from 1 November 2020 to 31 October 2021.

7 On 9 April 2021, pursuant to Article 90(2) of the Staff Regulations, the applicant lodged a complaint seeking annulment of the contested decision. The appointing authority of the Commission rejected that complaint on 4 August 2021 (‘the decision rejecting the complaint’).

– order the Commission to determine the maintenance cost of his mother, treated as a dependent child, for the period from 1 November 2020 to 30 September 2021, on the basis of her residence in Belgium;

– order the Commission to pay the allowance for his mother, treated as a dependent child, for the period from 1 November 2020 to 30 September 2021;

– order the Commission to produce, first, the documentary evidence on which its decision of 21 November 2019 is based and, second, the full text of the reply to a complaint cited in an email from the PMO of 8 December 2020;

10 By his first head of claim, the applicant asks the Court to annul the decision rejecting the complaint.

11 According to settled case-law, an administrative complaint, such as that referred to in Article 90(2) of the Staff Regulations, and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Consequently, the action before the judicature, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint would differ from that of the measure against which that complaint was made (see judgment of 27 October 2016, CW v Parliament, T‑309/15 P, not published, EU:T:2016:632, paragraph 27 and the case-law cited).

12 Moreover, in view of the evolving nature of the pre-litigation procedure, an express decision rejecting a complaint which contains only further particulars and thus merely reveals, in a detailed manner, the grounds for confirming the earlier act, does not constitute an act adversely affecting the person concerned. Nevertheless, that evolving nature of the pre-litigation procedure means that those further particulars must be taken into consideration in assessing the lawfulness of the contested measure (see judgment of 14 July 2021, IN v Eismea, T‑119/20, not published, EU:T:2021:427, paragraph 39 and the case-law cited).

13 In the present case, the Court observes that the decision rejecting the complaint confirms the contested decision, by setting out the grounds for the PMO’s position with regard to that decision. Thus, the claim for annulment must be regarded as being directed against the contested decision, the legality of which will be examined taking into consideration the reasons set out in the decision rejecting the complaint.

14 In support of his action, the applicant relies, in essence, on four pleas in law, alleging, first, infringement of the rights of the defence, second, infringement of the principle of the protection of legitimate expectations, third, an error of assessment of his mother’s place of residence and, fourth, infringement of Article 85 of the Staff Regulations.

15 By his first plea, the applicant claims, in essence, that, although he had been informed that he could submit documentary evidence to substantiate his requests until 29 January 2021, the PMO ultimately adopted the contested decision before the expiry of that time limit. Moreover, he submits that, by stating in the contested decision that he had not adduced proof that his mother had spent at least 180 days in Belgium, the PMO relied on a criterion which has no legal basis and the existence of which had never been communicated to him before the adoption of the contested decision. He concludes that his rights of defence have been infringed.

16 It should be recalled at the outset that, according to settled case-law, observance of the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law. That principle, which serves to ensure sound administration, requires that the person concerned must have been afforded the opportunity effectively to make known his or her views on any incriminating information taken into account for the purpose of adopting such a measure (see judgment of 10 October 2006, Van der Spree v Commission, T‑182/04, EU:T:2006:298, paragraph 70 and the case-law cited).

17 However, in order for an infringement of the rights of the defence to result in annulment of the contested measure, it must be established that, had it not been for such an irregularity, the outcome of the procedure might have been different (see judgment of 14 February 2017, Kerstens v Commission, T‑270/16 P, not published, EU:T:2017:74, paragraph 74 and the case-law cited).

18 As regards the applicant’s first argument, alleging that the contested decision was not adopted on the agreed date, it is true that, by email of 29 October 2020, the PMO informed the applicant that he was required to send it a number of documents and that the deadline for discharging that obligation was 29 January 2021. Furthermore, it is common ground that the contested decision was adopted before that deadline, on 11 January 2021.

19 However, first, it should be noted that the applicant and the PMO had numerous exchanges between 29 October 2020 and 11 January 2021, which enabled the applicant to send to the PMO many of the documents requested from him and the PMO to inform him of its doubts in the light of the documents received. In the context of those exchanges, the applicant, by email of 30 November 2020, sent numerous documents reproducing the classification made by the PMO in the email which it had sent to the applicant on 29 October 2020 and indicating for each of those documents the category to which it belonged in the light of that classification, while attaching other documents presented as ‘additional’ documents. Subsequently, the applicant provided clarifications and comments on those documents, but he never stated that he wished to submit new documents. On the contrary, he repeatedly urged the PMO to calculate the allowance at issue as soon as possible on the basis of the information he had sent to it and even expressly informed the PMO that it had all the information necessary to do so, by email of 4 January 2021.

20 In that context, the PMO could legitimately consider that all the relevant documentation had been sent to it by the applicant. That is all the more so since, by email of 6 January 2021, he had been informed that the PMO was preparing his file with a view to taking a final decision, but that an additional document still had to be provided for that purpose. The applicant sent that document, by email of the same date, without indicating in any way that he intended to supplement his file again thereafter.

21 Second, it must be observed above all that the applicant claims only in the abstract that the date of adoption of the contested decision prevented him from possibly appending other evidence to the file. Thus, he does not specify in any way what evidence could have been involved, nor does he place it on the file in the present case.

22 Therefore, and even if it were to be held that the PMO was required to comply with the time limit set out in the email which it had sent to the applicant on 29 October 2020, namely 29 January 2021, it must be stated that the applicant has not specified in any way what arguments he intended to raise or what documents he intended to produce in support thereof between the date of adoption of the contested decision, namely 11 January 2021, and 29 January 2021.

23 Consequently, it has not been established that the outcome of the procedure might have been different if the contested decision had been adopted after the deadline of 29 January 2021. Accordingly, the first argument raised by the applicant must be rejected.

24 As regards the second argument, alleging that the contested decision is based on a criterion which has no legal basis and was never communicated to the applicant before, and which was the sole basis for that decision, the Court finds as follows.

25 First of all, it is apparent from the wording of the contested decision that, if the PMO found that the applicant had not provided evidence that his mother spent at least 180 days a year in Belgium, that is because a body of evidence, consisting in particular of the property which she owned in Romania and her dual residence in those two States, had led it to doubt that her actual place of residence was in Belgium and to consider that such a period was relevant, in the circumstances of the present case, to determining whether or not she was resident in Belgium.

26 In the decision rejecting the complaint, the appointing authority provided clarification in that regard, explaining, in essence, to the applicant that the reference to the duration of 180 days’ presence in Belgium was merely an approximate indication, inasmuch as, in the particular circumstances of the case as described in the contested decision, it was capable of demonstrating the predominant presence of the applicant’s mother in that country despite the doubts arising from the various matters referred to in that decision.

27 In the light of the foregoing, and contrary to what the applicant claims, it cannot be considered that the period of 180 days’ presence in Belgium referred to in the contested decision was the sole justification for that decision.

28 Next, it should be observed that the contested decision was adopted following numerous exchanges which, it is common ground, concerned the determination of the applicant’s mother’s actual place of residence. During those exchanges, it was clearly specified to the applicant that it was necessary for him to show that she spent more time in Belgium than only a few days or a few months per year.

29 Lastly, the applicant does not explain in any way how the requirement, in the contested decision, to show that his mother had spent at least 180 days of the year in Belgium constitutes an infringement of his rights of defence.

30 Consequently, the PMO did not infringe the applicant’s rights of defence by stating that, in the context described in the contested decision, he had not adduced sufficient proof that his mother had spent at least 180 days per year in Belgium.

– Second plea in law, alleging infringement of the principle of the protection of legitimate expectations

32 By his second plea, the applicant claims that the Commission infringed the principle of the protection of legitimate expectations, first of all because it never informed him of the nature of the documents that had to be sent to it in order to demonstrate that his mother lived in Belgium, next because it gave him to understand that the ‘Composition des ménages’ (Household composition) document was sufficient to prove that a member of his family lived under his roof and, lastly, because the appointing authority had never called into question his mother’s place of residence when examining the various requests for an allowance for his mother to be treated as a dependent child that he had submitted.

33 In that regard, it should be recalled that the right to rely on the principle of the protection of legitimate expectations presupposes that precise, unconditional and consistent assurances originating from authorised, reliable sources have been given to the person concerned by the competent authorities of the European Union (see judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 144 and the case-law cited).

34 First, in so far as the applicant submits that the Commission did not inform him which documents he was required to produce in order to demonstrate that his mother’s place of residence was in Belgium, it should be noted, as has been pointed out in paragraph 19 above, that it is apparent from the documents before the Court that the PMO referred to certain types of documents which could be sent to it in order to demonstrate the applicant’s mother’s actual place of residence, such as, for example, medical receipts which could prove that she resided full-time in Belgium and that she did not spend only a few months there each year, while indicating that documents of any other nature would also be welcomed. Consequently, that argument must be rejected.

35 Second, as regards the assurances allegedly given to the applicant, it must be observed that, although he was indeed asked to send the ‘Composition des ménages’ (Household composition) document, it is not apparent from the documents before the Court that he was informed that that document would be sufficient to establish that his mother’s place of residence was in Belgium.

36 Third, in so far as the applicant claims that his mother’s place of residence had never been called into question when the previous decisions granting him the allowance for his mother as a person treated as a dependent child were issued, it is sufficient to recall that it is because the applicant informed the PMO that the statements he had made when he had submitted a request for that allowance were incorrect, as revealed by the OLAF investigation, that the calculations to determine whether he was entitled to it were, in the present case, carried out again in the contested decision.

37 Moreover, it should be pointed out that payments made in favour of the applicant by the administration, even over several years, by themselves cannot be regarded as precise, unconditional and consistent assurances giving entitlement to rely on the protection of legitimate expectations. Otherwise, any decision of the administration refusing for the future, and possibly with retroactive effect, to pay a pecuniary benefit unduly paid to the person concerned for several years would be systematically annulled by the Courts of the European Union for non-compliance with the principle of legitimate expectations (judgment of 12 May 2017, Costa v Parliament, T‑15/15 and T‑197/15, not published, EU:T:2017:332, paragraph 75), with the consequence that Article 85 of the Staff Regulations, on the recovery of undue payment, would be largely deprived of any practical effect.

39 By his third plea, the applicant submits, in essence, that the administration made an error of assessment in finding that he had not adduced proof that his mother was permanently resident in Belgium.

40 In that regard, he submits a number of items of evidence which, in his view, were never taken into account, even though they were such as to show that his mother’s place of residence was indeed in Belgium. In his submission, such evidence is sufficient, since it made it possible to establish his mother’s place of residence in accordance with the criteria set out in Article 11(1) and (2) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1).

41 As a preliminary point, it should be recalled that Article 2(1) to (3) of Annex VII to the Staff Regulations allows officials who have one or more dependent children to receive, under certain conditions, an allowance for each of them. Paragraph 4 of that article states that, by special decision of the appointing authority based on supporting documents, any person whom the official has a legal responsibility to maintain and whose maintenance involves heavy expenditure may exceptionally be treated as a dependent child.

42 That latter provision was implemented by Commission Decision C (2004) 1364 of 15 April 2004 on general implementing provisions concerning persons treated as dependent children (Article 2(4) of Annex VII to the Staff Regulations) (‘the GIPs’), the first and second paragraphs of Article 4 of which are worded as follows:

‘It shall be for the official to establish, on the basis of supporting documents, the existence of legal responsibility for maintenance, the expenditure stemming from it and the amount of the financial contribution actually made.

Treatment as a dependent child may be authorised only if the expenditure stemming from the legal responsibility for maintenance is at least equal to the amount resulting from such authorisation.’

43 Furthermore, it is apparent from the first paragraph of Article 8 of the GIPs that the amount of the cost of maintenance of a person who an official requests to be treated as a dependent child must be weighted according to that person’s place of residence.

44 It was on the basis of those provisions that, in the contested decision, the PMO took the view that, in the light of the new information, which had not previously been declared, according to which the applicant’s mother owned an apartment in Bucharest, the applicant had not been able to produce sufficient evidence that his mother’s actual place of residence was in Belgium and that, consequently, it was the residence in Romania of the applicant’s mother that had to be taken into account in calculating the cost of her maintenance. After recalculating the maintenance costs of the applicant’s mother on the basis of her residence in Romania, pursuant to Article 8 of the GIPs, the PMO found that the financial burden arising from the applicant’s maintenance obligation towards his mother was less than the minimum amount required for the grant of the allowance under Article 4 of the GIPs; this finding triggered the recovery of the amounts already paid for the period from 1 November 2019 to 31 October 2020 and the refusal to grant a new allowance for the period from 1 November 2020 to 31 October 2021.

45 In accordance with Article 8 of the GIPs, the determination of the applicant’s mother’s place of residence has an impact on the calculation of the amount of the allowance for her, as a person treated as a dependent child, and may even lead to a refusal to grant that allowance. It is the determination of the place of residence in Romania that the applicant disputes, relying on a number of documents which he provided at the stage of the administrative procedure and which, in his view, are such as to demonstrate that his mother’s residence was in Belgium.

46 According to settled case-law, EU law provisions conferring entitlement to financial benefits must be strictly interpreted and such an interpretation must also be given as regards the treatment of a person as a ‘dependent child’ within the meaning of the Staff Regulations (see judgment of 19 December 2019, Zotkov v Commission, T‑457/18, not published, EU:T:2019:875, paragraph 28 and the case-law cited). In that regard, it is necessary to take into account the fact that it is only exceptionally and on the basis of a reasoned decision of the appointing authority of the EU institution, body, office or agency concerned that an adult and member of the official’s family, other than his or her legitimate, natural or adopted children or those of his or her spouse, may be regarded, under Article 2(4) of Annex VII to the Staff Regulations, as a ‘dependent child’ where the official has a ‘legal responsibility to maintain’ that person and where ‘[that person’s] maintenance involves heavy expenditure’ (judgment of 16 January 2018, SE v Council, T‑231/17, not published, EU:T:2018:3, paragraph 38).

47 Furthermore, it is for the official to prove that the conditions to be satisfied in order to obtain payment of an allowance are satisfied (see order of 17 June 2019, BS v Parliament, T‑593/18, not published, EU:T:2019:425, paragraph 39 and the case-law cited).

48 In the first place, the applicant relies on the provisions of Article 11(1) and (2) of Regulation No 987/2009 in order to claim that the evidence which he produced during his exchanges with the PMO was sufficient to demonstrate that his mother’s actual permanent residence was in Romania.

49 In that regard, it should be noted (i) that Regulation No 987/2009 does not refer to EU officials and (ii) that Article 11 of that regulation referred to by the applicant concerns a difference of views between the institutions of two Member States about the determination of a person’s residence, in the context of the coordination of social security systems. However, those issues do not fall within the scope of the present case and the applicant’s argument on that point must therefore be rejected on that ground.

50 In the second place, it is necessary to examine whether the contested decision is vitiated by an error of assessment, inasmuch as the appointing authority considered that, since the applicant had not adduced proof that his mother resided in Belgium, it had to take her residence in Romania into account in calculating her maintenance cost.

51 As a preliminary point, it should be observed that the Commission is not justified in claiming, in essence, that the applicant’s general reference to six annexes in the application renders his claims based on those annexes inadmissible. The applicant expressly explains in the application the arguments which he derives from each of those annexes.

52 Furthermore, it should be noted that neither Article 2(4) of Annex VII to the Staff Regulations nor the GIPs lay down the criteria applicable for the purposes of determining the actual place of residence of a person who is the subject of a request for entitlement to the allowance for a dependent child.

53 However, the concept of ‘residence’ has been consistently interpreted by the case-law as being the place where the person concerned has established, with the intention that it should be of a lasting character, the permanent or habitual centre of his or her interests. Furthermore, irrespective of the purely quantitative element of the time spent by the person in a particular country, ‘residence’ implies not only the actual fact of living in a given place, but also the intention of thereby achieving the continuity which stems from a stable way of life and from the course of normal social relations (see judgment of 4 June 2003, Del Vaglio v Commission, T‑124/01 and T‑320/01, EU:T:2003:153, paragraph 71 and the case-law cited).

54 In support of his position, the applicant relies on a number of documents which, in his view, are such as to demonstrate that his mother’s actual residence was in Belgium.

55 First, the applicant refers to the transfer of his mother’s medical insurance to Belgium since October 2013. Contrary to what he claims, that mere transfer is not such as to demonstrate that his mother’s residence is in that country. It is apparent from the explanations given by the applicant himself that that transfer results solely from the registration of his mother, on her own initiative, with the Belgian medical insurance scheme. Moreover, registration with the medical insurance scheme of a given country is not such as to show that that country must be regarded as the individual’s place of residence (see, to that effect, judgment of 3 May 2001, Liaskou v Council, T‑60/00, EU:T:2001:129, paragraph 63). In addition, that information must be weighed against the fact that the administration asked the applicant on several occasions for other documents to demonstrate his mother’s residence in Belgium, such as documentary evidence of the medical expenses covered by that insurance, which the applicant was unable to produce.

56 Second, the applicant submits his mother’s tax return for 2020, relating to income for 2019. However, that tax return was drawn up by the applicant’s mother herself in order to state that she was not in gainful employment in Belgium and it is therefore not such as to show that her place of residence was in Belgium during that period.

57 Third, as regards the ‘Avertissement extraits de rôle’ (Notice of Assessment) documents submitted by the applicant for the years 2008, 2009 and 2019, it should be noted that those documents are also not capable of establishing his mother’s continuous presence in Belgium, since it is apparent from those documents that she did not receive any taxable income in that country during those years.

58 Fourth, as regards the certificate of principal residence dated 28 November 2020 and in respect of which the applicant claims, at the stage of the reply, that he was the subject of a prior police investigation, it should be noted that that certificate indicates that the applicant’s mother has been entered at four different addresses in Belgium’s national register since 2008. Nevertheless, it must be borne in mind that, according to settled case-law, registration in a locality is a purely formal element which does not prove that the person concerned is resident in that locality (see, to that effect, judgment of 15 October 2020, Karpeta-Kovalyova v Commission, T‑249/19, not published, EU:T:2020:490, paragraph 84 and the case-law cited). Moreover, that entry was made in the register of foreign nationals of the municipality of Zaventem (Belgium) on a date prior to the two periods to which the contested decision relates. It must be observed in that regard that, on the assumption that such an investigation was carried out at that time, it would have been carried out only on an ad hoc basis, before the certificate at issue was issued, and it would therefore have made it possible to demonstrate the presence of the applicant’s mother in Belgium only for a limited period.

59 Fifth, the applicant refers to several documents whose probative value must be regarded as low, since they originate either from his mother herself or from his own family. That is true of the various sworn statements of which the applicant’s mother is the signatory and that made by the applicant’s ex-wife. It is apparent, in particular, from the case-law, that statements of the person concerned alone have no probative value for the purpose of establishing the existence of his or her actual residence (see, to that effect, judgment of 27 September 2006, Kontouli v Council, T‑416/04, EU:T:2006:281, paragraphs 90, 105 and 106).

60 The same applies to the residence in Belgium entered in the Romanian passport of the applicant’s mother, since that entry could also be based on her own statement (see, to that effect, judgment of 4 June 2003, Del Vaglio v Commission, T‑124/01 and T‑320/01, EU:T:2003:153, paragraph 87). Similar considerations apply as regards the declaration of the Romanian consul in Brussels (Belgium), dated 20 November 2013, since it is stated therein that that declaration was drawn up at the request of the applicant’s mother, without any indication that checks were carried out by the Romanian consular services when it was drawn up, and since that declaration in any event predates the period relevant to the resolution of the present dispute. In addition, in the absence of any other information, the declaration from the Romanian doctor, which contains information going beyond mere medical findings and which may therefore reproduce information given by the applicant’s mother, raises doubts as to the real independence of its author, as the Commission claims.

61 Sixth, in so far as the applicant refers vaguely to air tickets and fuel invoices, it is sufficient to note that the air tickets establish that his mother travelled from Brussels to Bucharest on 13 June 2019 and 20 November 2020 and from Bucharest to Brussels on 8 January 2021 on one-way trips, which is not capable of demonstrating any permanence of her stays in those two cities. Moreover, the fuel invoices paid by the applicant do not establish in any way that his mother was with him when he made those payments.

62 In addition, it should be borne in mind that the contested decision was adopted after the applicant informed the Commission that, contrary to what he had stated in the various requests he had made in order to obtain the allowance for his mother as a person treated as a dependent child, the mother appeared to be the owner of an apartment in Bucharest. It was in that context that the PMO considered that, in the light, in particular, of that new information, the applicant’s mother’s place of residence was in Romania. In the decision rejecting the complaint, the appointing authority stated that that new information had been assessed in conjunction with other factors, such as, for example, the nationality of the applicant’s mother, the fact that a pension was still paid to her in Romania, or the fact that the applicant’s mother had a registered residence in an apartment in Romania, and in the light of the absence of evidence demonstrating a daily life in Belgium.

63 Thus, contrary to what the applicant appears to claim, the contested decision is not based on the sole ground that his mother owned an apartment in Bucharest, but is based on the finding that, in the context described in the previous paragraph, the applicant did not succeed in providing the PMO with a body of evidence capable of demonstrating that his mother had established her residence in Belgium.

64 In the light of the foregoing, it must be held that the evidence produced by the applicant, even taken together, is indeed such as to indicate the presence of his mother in Belgium on various occasions during the relevant period and the existence of links with that country, but is not, however, sufficient to show that she actually resided there, with the intention of achieving by that presence the continuity which stems from a stable way of life and from the course of normal social relations, within the meaning of the case-law cited in paragraph 53 above.

65 Consequently, it cannot be held that the PMO made an error of assessment in finding that the applicant had not established that his mother’s place of residence was in Belgium and that that place should be regarded as being in Romania.

– The fourth plea, alleging infringement of Article 85 of the Staff Regulations

67 The applicant claims that he did not intentionally fail to communicate to the PMO in good time the information relating to his mother’s ownership of an apartment in Bucharest, since he was not aware of that ownership when he completed the request for renewal of the allowance at issue in 2019 and that he immediately remedied this as soon as those facts were communicated to him by OLAF. Furthermore, the applicant asserts that it is apparent from the case-law that the fact that his mother owns an apartment in Romania was not such as to demonstrate that her permanent centre of interests was in that country. Consequently, he submits that the resulting irregularity for the period from 1 November 2019 to 31 October 2020 was not sufficiently obvious for him to be criticised for not having noticed it. In essence, he therefore takes the view that the conditions laid down in Article 85 of the Staff Regulations were not satisfied.

68 The Commission disputes the applicant’s line of argument. It observes that Article 85 of the Staff Regulations allows the recovery of sums overpaid in two situations: where the recipient was aware that there was no due reason for the payment and where that overpayment was patently such that he or she could not have been unaware of it. In the present case, it relies on the second of those situations, pointing out, first, that the applicable provisions were clear and, second, that the applicant was an official in grade AST 4 with almost thirteen years’ experience when he submitted the request for an allowance relating to the period at issue. It considers that he should therefore have demonstrated a high degree of diligence.

69 As was noted in paragraph 6 above, it is apparent from the contested decision that it was under Article 85 of the Staff Regulations that the recovery order concerning the allowance paid to the applicant by way of allowance for his mother as a person treated as a dependent child for the period from 1 November 2019 to 31 October 2020 was issued. Furthermore, in the decision rejecting the complaint, first, it was stated that it was clear from the relevant rules that an applicant for the dependent person allowance was required to produce all the relevant documents and to submit them to the Commission as regards the property ownership status of the person for whom the allowance was requested and that the form which was sent to each applicant by the PMO included a question relating precisely to that status. In that regard, the explanations by which the applicant sought to claim that he was unaware that his mother owned an apartment in Bucharest were not considered convincing. Second, it was observed that the applicant was a very experienced official and that his grade was relatively high when he made the request at issue. Furthermore, it was also noted, inter alia, that, in the numerous exchanges he had with the PMO, the applicant had frequently relied on the provisions of the GIPs, thus proving that he was aware of the requirements which they contained, in particular those relating to the establishment of his mother’s place of residence.

70 In that regard, it should be recalled, as a preliminary point, that it is apparent from the first paragraph of Article 85 of the Staff Regulations 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’.

71 The case-law states that an official in receipt of an allowance, far from needing to make no effort to reflect or check the payment he or she receives, is, on the contrary, required to make repayment where the payment is made as a result of an error which would not escape the notice of a member of staff exercising ordinary care. In that regard, account must be taken in each case of the ability of the member of staff concerned to make the necessary checks. It must also be borne in mind that the diligence required of members of the EU’s staff on the basis of Article 85 of the Staff Regulations stems from the fact that the situation of the administration, which is responsible for the payment of thousands of salaries and allowances of all kinds, cannot be compared to that of a staff member, who has a personal interest in checking the payments made to him or her every month and that, therefore, it is not a question of whether or not the error was patent to the administration, but of whether it was patent to the applicant (see judgment of 23 March 2022, ON v Commission, T‑730/20, not published, EU:T:2022:155, paragraph 21 and the case-law cited).

72 In the present case, it is common ground that the Commission relied on the second situation provided for in Article 85 of the Staff Regulations in considering that the applicant had been negligent when he made the request for the allowance for his mother as a person treated as a dependent child, since he had indicated that she did not own any property, even though she owned an apartment in Bucharest.

73 In that regard, it is apparent from the case-law that the factors taken into account by the EU judicature in determining whether or not the error committed by the administration was patently such, for the party concerned, include his or her level of responsibility, his or her grade and seniority, and also the degree of clarity of the applicable Staff Regulations provisions setting out the conditions for granting the emoluments owing to the party concerned and, where relevant, the significance of the changes in his or her personal or family circumstances (see judgment of 23 March 2022, ON v Commission, T‑730/20, not published, EU:T:2022:155, paragraph 23 and the case-law cited).

74 It cannot be inferred from the case-law that one criterion is generally given priority over the others. On the contrary, that case-law makes it clear that all factors must be considered together, as the circumstances of each one may justify greater weight being attached to certain criteria over others (see judgment of 23 March 2022, ON v Commission, T‑730/20, not published, EU:T:2022:155, paragraph 24 and the case-law cited).

75 In the first place, as regards the clarity of the applicable provisions, it should be noted, first of all, that it is apparent from Article 7 of the GIPs that account is to be taken, in the assessment of the income of the person for whom treatment as a dependent child is sought, of the rental value of the dwelling which he or she owns. Furthermore, as the appointing authority correctly stated in the decision rejecting the complaint, the form which the applicant for the dependent child allowance is required to send to the PMO expressly includes a question concerning the property ownership status of the person who is the subject of the request.

76 Consequently, even on the assumption that the applicant’s claim that he was not aware that his mother owned a property in Romania were correct, it was nevertheless for him to satisfy himself that the information which he communicated to the PMO in that regard was correct.

77 In that regard, as regards the claims raised by the applicant for the first time at the stage of the reply, according to which his mother suffers from disorders of the memory diagnosed on 26 February 2021, which, in his view, might perhaps explain why she did not specifically mention to him that she owned an apartment in Bucharest, it is sufficient to note, first, that that apartment had been purchased by her in 1996 and, second, that the request at issue was submitted in 2019, with the result that those claims must be rejected without it even being necessary to rule on their admissibility.

78 In the second place, as regards the factors relating to the assessment of the official’s ability to carry out the necessary checks concerning the error in question, it should be borne in mind, first, that the applicant was an official in grade AST 4 when he made the request at issue in 2019 and, second, that he had been working at the Council since 1 December 2007.

79 Thus, the applicant already had 12 years’ experience at the time of the request at issue.

80 Therefore, given that the applicant was a very experienced official in the General Secretariat of the Council, and in view of the clarity of the provisions at issue in the present case, it must be concluded that the error in question would not escape the notice of an official exercising ordinary care in a similar situation.

81 In those circumstances, the applicant did not show the diligence required of members of the EU’s staff, within the meaning of the case-law cited in paragraph 71 above.

82 In the light of the foregoing, the fourth plea in law must be rejected and, therefore, the application for annulment must be dismissed in its entirety.

The claim that the Commission should be ordered to pay the allowance for the applicant’s mother as a person treated as a dependent child

83 By the third head of claim, the applicant asks the Court to order the Commission to pay the allowance for his mother to be treated as a dependent child.

84 It is true that, in the context of the unlimited jurisdiction conferred on it by Article 91(1) of the Staff Regulations, the EU Courts may order an institution, in an appropriate case, to pay a sum to which the applicant is entitled under the Staff Regulations or another legal measure (see, to that effect, judgments of 18 December 2007, Weißenfels v Parliament, C‑135/06 P, EU:C:2007:812, paragraph 68, and of 10 September 2015, Review Missir Mamachi di Lusignano v Commission, C‑417/14 RX-II, EU:C:2015:588, paragraph 40).

85 However, in the present case, the claim for annulment of the contested decision has been rejected. Thus, the applicant has not established that he is entitled to the allowance for his mother to be treated as a dependent child, so that his claim for payment by the Commission of such an allowance must also be rejected.

The request for production of the documents on which the PMO relied in order to issue the decision of 21 November 2019

86 The applicant requests the Court to ask the Commission to produce the documents on which the PMO relied in order to issue the decision of 21 November 2019, by which it granted the applicant, on a provisional basis, the renewal of the allowance for his mother as a person treated as a dependent child, on the basis of the information that he provided, for the period from 1 November 2019 to 31 October 2020.

87 In that regard, it should be borne in mind that, as is apparent from Article 90 and Article 92(1) of the Rules of Procedure of the General Court, it is for the Court to appraise the usefulness of measures of organisation of procedure and of measures of inquiry (see judgment of 28 November 2018, Le Pen v Parliament, T‑161/17, not published, EU:T:2018:848, paragraph 179 and the case-law cited).

88 In the present case, the Court considers that the measures sought are neither relevant nor useful for the resolution of the dispute. It is common ground that the decision of 21 November 2019, by which the PMO considered that the residence of the applicant’s mother was in Belgium, was adopted on the basis of incorrect information provided by the applicant. As is apparent from paragraph 5 above, it was therefore on the basis, inter alia, of new information that the contested decision, which amends the decision of 21 November 2019, was adopted.

89 It follows from the foregoing that the documents on which the PMO relied in order to adopt the decision of 21 November 2019 are not relevant in the context of the present dispute.

The request for production of the full text of the reply to the complaint cited in the PMO’s email of 8 December 2020

90 The applicant observes that, in an email of 8 December 2020, the PMO expressly cited the reply given to a complaint in another case in which the question of the determination of an individual’s place of habitual residence also arose. Consequently, he requests the Court, in the interests of clarity, to ask the Commission to produce that reply to that complaint.

91 In that regard, and in the light of the case-law cited in paragraph 87 above, the Court considers that the transmission of the document requested by the applicant is neither relevant nor useful for the resolution of the dispute. The passage of the complaint cited in the email referred to in the previous paragraph merely recalls the case-law intended to set out, in an abstract manner, the principles applicable for the purposes of determining an individual’s place of residence, without any analogy between the case which was the subject of that reply to a complaint and the applicant’s situation being established by the PMO.

92 In the reply, the applicant claims that, after being removed from his post on 30 September 2021, he lost access to his former professional emails and that he was unable to submit all the evidence he would have wished to submit with the application lodged on 4 November 2021 in the present case. Consequently, he claims to have requested to recover this access from the General Secretariat of the Council and to be awaiting a decision in this regard. According to him, that decision was to be issued by 7 August 2022 at the latest. He therefore requests that he be allowed to supplement the case file, pursuant to Article 83(2) of the Rules of Procedure, after such full access to his professional email account has been granted to him, and to be able to use the evidence thus obtained exhaustively.

93 In the first place, it should be borne in mind that Article 83(2) of the Rules of Procedure provides, in essence, that the main parties may supplement the file in the case under certain conditions where the Court has considered that a second round of pleadings was unnecessary.

94 However, it must be stated that, in the present case, there was such a second round of written pleadings and that Article 83(2) of the Rules of Procedure is therefore not applicable.

95 In the second place, it should be noted that, under Article 85(2) and (3) of the Rules of Procedure, the main parties may produce or offer further evidence either in reply or rejoinder in support of their arguments or, exceptionally, before the oral part of the procedure is closed or before the decision of the General Court to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified.

96 In the present case, however, it must be stated that the applicant does not indicate to which documents in particular his request relates or what arguments he intends to derive from them.

97 Consequently, the applicant’s request for authorisation to complete the file in the case must be rejected.

98 By his second head of claim, the applicant asks the Court to order the Commission to determine the alleged cost of maintenance for the period from 1 November 2020 to 30 September 2021 on the basis of his mother’s residence in Belgium.

99 In that regard, it is sufficient to recall that, when exercising judicial review of legality under Article 91 of the Staff Regulations and Article 270 TFEU, the Court has no jurisdiction to issue directions to the institutions, bodies, offices and agencies of the European Union (see, to that effect, order of 4 April 2011, Marcuccio v Commission, T‑239/09 P, EU:T:2011:138, paragraph 31 and the case-law cited).

100 It follows that the second head of claim must be rejected on the ground that the Court is not competent to hear it.

102 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

103 Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> AL v Commission (Civil service - Family allowances - Judgment) [2023] EUECJ T-714/21 (24 May 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/T71421.html Cite as: EU:T:2023:282, ECLI:EU:T:2023:282, [2023] EUECJ T-714/21

Court of Justice of the European Communities (including Court of First Instance Decisions)