DELIVERED ON 21 JUNE 1979 (*1)

Mr President,

Members of the Court,

After the cases of Meganck v Commission of the European Communities (judgment of 30 May 1973, [1973] ECR 527) and Kuhl v Council of the European Communities (judgment of 27 June 1973, [1973] ECR 705) I am giving for the third time my opinion in a case concerning the recovery of sums paid in error to an official of the Communities.

The dispute concerns the household allowance provided for in Article 67 (1) of the Staff Regulations of Officials. The conditions governing the grant of that allowance are laid down in Article 1 of Annex VII to the Staff Regulations, paragraph (3) of which, in the version in force at the time of the events in dispute, provided that:

‘If the spouse of an official is gainfully employed, with an annual income, before deduction of tax, of more than Bfr 250000, the official entitled to the household allowance shall not receive this allowance save by special decision of the appointing authority. The official shall, however, be entitled to the allowance where the married couple have one or more dependent children’.

At their meeting on 26 October 1973 the heads of administration agreed that in future the upper limit of Bfr 250000 should be weighted at the rate applicable to remuneration. Thus, on 1 November 1973, the date on which that decision came into force, the upper limit was raised to Bfr 250000 x 117 %, that is, Bfr 292000, for officials employed in Belgium.

That system remained in force throughout the whole of the period during which the applicant improperly received the household allowance.

The applicant, who is a Danish national, entered the service of the Commission on 1 January 1974 and from 1 December 1974 has been performing the duties of an administrative assistant in Grade B 4 at the Financing and Auditing Division of the Directorate for the European Agricultural Guidance and Guarantee Fund (Directorate General for Agriculture). His wife, who was also engaged by the defendant as a member of the auxiliary staff with effect from 1 February 1974, was appointed an official in Grade C 3 on 1 November of that year.

On 9 November 1977 the applicant informed the administration of his divorce which had taken place on the preceding 8 August. When he received his salary statement on 15 January 1978 he found that an ‘amount to be subsequently reimbursed’ of Bfr 96272 had been charged to him. A memorandum of 10 February 1978 from the Salaries, Pensions, Missions and Miscellaneous Allowances Division informed the applicant that that sum would be withheld at source because he had been paid the household allowance in error from 1 July 1974 to 31 December 1977. The memorandum also explained the procedure for the recovery of the sums overpaid.

A second memorandum dated 27 February and signed by the Head of the Individual Rights and Privileges Division confirmed the first but stated that the recovery would be carried out only in respect of the sums paid after 1 January 1975. Up to that date the remuneration received by the applicant's wife had been paid in the form of advances which were subsequently regularized and had exceeded the maximum fixed in relation to the grant of the household allowance only through the effect of a retroactive readjustment.

On 14 April 1978 the applicant submitted a complaint within the meaning of Article 90 (2) of the Staff Regulations. He complained that he had not been kept sufficiently informed as regards the implementation of the procedure for recovery. Secondly, he maintained that the conditions of application of Article 85 of the Staff Regulations were not satisfied. He stated that he had not been aware that there was no due reason for the payments and, to quote the words of Article 85 of the Staff Regulations, stated that the overpayment had not been ‘patently such that he could not have been unaware of it’. In support of that argument he referred to the fact that he had been informed in February 1974 that he was entitled to the allowance, to the complexity of the provisions governing that question and to the fact that the Commission, which was responsible for the error, had at its disposal all the information necessary to correct it, since his wife was also employed and paid by that institution.

After providing further information in writing the Commission dismissed the applicant's complaint by decision of 27 November 1978 on the ground that he was aware of the amount of remuneration received by his wife and, accordingly, knew that it exceeded the limit laid down in the relevant texts and that, in any event, an official showing an ordinary degree of care must check the payments which he receives.

In the meantime on 13 November the applicant had lodged an application for the annulment of the memorandum of 27 February 1978 and of the implied decision by the Commission rejecting his complaint. The dispute concerns the allowances paid between 1 January 1975 and 31 August 1977, since the Commission has abandoned any claim to recovery in respect of the earlier period and the applicant does not contest that recovery is justified as regards the period following his divorce. If I am not mistaken the sum thus claimed amounts to Bfr 92536.

II — As the application gives rise to no question of admissibility I shall proceed at once to consider the substance.

In the relations between the Communities and their officials the recovery of undue payment is governed by Article 85 of the Staff 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’. In this instance the only question at issue is whether the overpayment was sufficiently ‘patent’.

In that connexion it may be inferred from the Court's earlier case-law that for recovery to be justified an examination of the circumstances of the case must show that an official using ordinary care could not be unaware of the overpayment. If that is not the case recovery cannot be demanded (judgment in the Meganck case, [1973] ECR 527 at p. 534, paragraph 20, judgment in the Kuhl case, [1973] ECR 705 at p. 712, paragraph 11). The central concept to be interpreted is thus that of ordinary care.

The solutions adopted to the problem of the recovery of undue payment by the laws governing the public service in the Member States are all distinctly more rigorous than Article 85 of the Staff Regulations. I established that in my opinion in the Kuhl case as regards French, German and Italian law, which still show the same tendencies today. In the Netherlands the courts almost always dismiss applications against recovery of undue payment, having regard to the increasingly detailed nature of the information given on the salary statements.

The laws of the United Kingdom and of the Republic of Ireland do not contain any special rules as regards public servants. By virtue of a very old-established remedy, which applies specifically to the recovery of undue payment and uses the rules applicable to quasi-contract, the recipients of an undue payment are able to avoid recovery only in exceptional circumstances.

It is therefore possible to deduce the existence of a general principle of law which, unlike the version of Article 85 of the Staff Regulations previously in force, makes recovery the rule and non-recovery the exception. Furthermore, that difference in approach has been reduced since 1 July 1972, the date on which the earlier version of Article 85, which provided that ‘Any sum overpaid may be recovered …’, was replaced by the words ‘Any sum overpaid shall be recovered …’.

It is in the light of the foregoing observations that we must consider whether, by failing for almost three years to notice the overpayment in his favour, the applicant showed ordinary care.

III — I do not consider that he did.

First of all, an official cannot be allowed to justify his failure to notice that certain payments to him were undue by reference to his ignorance of the provisions of the Staff Regulations on the basis of which the payments were made.

It is a fortiori unacceptable since the texts in question were available to the applicant in his mother tongue or, in the case of the Staff Regulations at the time of his recruitment, in German, of which the applicant had a very good knowledge.

The applicant also takes the view that the Commission was in a much better position than he was to realize that an error had been committed. He claims that it had all the necessary information available in order to do so, since his wife was also employed in its service. The error on the part of the administration cannot, however, constitute justification. As I said in my opinion in the Kuhl case, it is even obvious that that is one of the necessary conditions for bringing an action for recovery. In particular the applicant cannot rely on the information given to him on the appointment of his wife in February 1974, according to which he was entitled to the household allowance. That information had been given to him in haste and entirely unofficially.

Moreover, he cannot claim that he was unaware of the amount of remuneration received by his wife because until July 1976, that is, for almost two-thirds of the period in dispute, their salaries were both paid into the same bank account.

Finally, in drawing attention to the difficulty which he alleges he experienced in determining the amount of the remuneration received by his wife to be compared with the upper limit above which payment of the household allowance was to cease, the applicant adds that even if he had been aware of the amount of that remuneration it would not have enabled him to discover that he was not entitled to the household allowance. However, I consider that difficulty to be more apparent than real. It was sufficient for the applicant to add the net amount received by his wife to the amount of Community tax payable to obtain the monthly sum whose annual equivalent had to be compared with the upper limit laid down in the Staff Regulations, as weighted at the rate applicable to Belgium. I do not consider that calculation to be beyond the abilities of an official of the grade of the applicant, whose file shows that he has a knowledge of accounting.

In that connexion the Centrale Raad van Beroep of the Netherlands [court of last instance in social security matters with certain jurisdiction as regards the civil service] held in a judgment of 18 April 1961 (Administratieve en rechterlijke beslissingen [administrative and judicial decisions] 1961, p. 879) that recovery was permissible where the salary statements gave the official a reasonable opportunity of carrying out a check, regardless of the complexity of the rules applicable. The Netherlands court added that although the administration was required to make an accurate calculation the official had nevertheless to make use of the opportunity offered by the provision of a salary statement in order to carry out his own check.

IV — Are there grounds for accepting the view of the Commission that the applicant failed to fulfil the undertaking which, like all other officials, he gave on his entry into the service, namely to notify changes affecting his situation, in particular those affecting the gainful employment of his wife?

Under Italian law recovery of the undue payment would in such case be justifiable since failure to provide information is a case in which the payment is regarded as having been determined by the conduct of the official (Consiglio di Stato, 4th Chamber, 13 December 1963, Rassegno Consiglio di Stato 1962, 1, p. 481).

In that connexion, however, I do not consider that the applicant failed to show the ordinary degree of care which might be expected of him since the Commission was in a better position than anyone else to know how much his wife earned. We may even wonder whether, in order to prevent such regrettable situations from occurring again, the Commission might not follow the practice of other Community institutions, which would not create major administrative difficulties, and require its officials to fill in a form once a year giving information inter alia about the income received by their spouse, whether or not the spouse is employed in the service of the Commission. Adoption of that practice could only facilitate financial control and allow errors to be more easily detected.

I am therefore of the opinion that the application should be dismissed and that in accordance with Article 70 of the Rules of Procedure the parties should bear their own costs.

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(*1) Translated from the French.