(Officials – Conditions for admissibility of actions – Remuneration – Change of place of employment – Withdrawal of the benefit of the weighting for France and the expatriation allowance – Principle of non-discrimination – Duty to have regard for the welfare of officials)

Full text in French II - 0000

Application: for annulment of a decision to make deductions from the applicant’s salary, of a decision withdrawing the benefit of the secretarial allowance, of a decision withdrawing the benefit of the fixed allowance for travel expenses and for damages to make good the loss she alleges to have suffered.

Held: The application is dismissed. The parties are ordered to bear their own costs.

Summary

(Staff Regulations, Arts 90 and 91)

(Staff Regulations, Art. 91(1))

(Art. 233 EC; Staff Regulations, Art. 91)

(Staff Regulations, Art. 60, second para.)

5. Officials – Equal treatment – Definition – Limits

6. Officials – Recovery of undue payments – Conditions – Irregularity of the payment patently evident – Criteria

(Staff Regulations, Art. 85)

7. Officials – Administration’s duty to have regard for the interests of officials – Scope – Limits

8. Officials – Actions – Action for damages – No illegal act committed by the administration – Dismissal

(Staff Regulations, Art. 91)

Complaints must be lodged within three months of ‘the date of notification of the decision to the person concerned, but in no case later than the date on which the latter received such notification, if the measure affects a specified person’. Notification of the monthly salary statement has the effect of setting time running for the purpose of the time-limit for proceedings against an administrative decision, where the scope of such a decision is clearly apparent from the statement.

The applicant is entitled to plead excusable error to justify his application being out of time where, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally well-informed person.

(see paras 37-40)

See: 276/85 Cladakis v Commission [1987] ECR 495, para. 11; 159/86 Canters v Commission [1988] ECR 4859, para. 6; C-193/01 P Pitsiorlas v Council and ECB [2003] ECR I-4837, para. 24; T-129/89 Offermann v Parliament [1991] ECR II-855, paras 30, 31 and 34; T-7/91 Schavoir v Council [1992] ECR II-2307, para. 34; T-232/97 Becret-Danieau and Others v Parliament [1998] ECR-SC I-A-157 and II-495, para. 32

(see para. 54)

See: 23/80 Grasselli v Commission [1980] ECR 3709, para. 18; 371/87 Progoulis v Commission [1988] ECR 3081, para. 17; T-608/97 Plug v Commission [2000] ECR-SC I-A-125 and II-569, para. 23; T-134/02 Tejada Fernández v Commission [2003] ECR-SC I-A-125 and II-609, point 16

(see paras 62-63)

See: T-94/92 X v Commission [1994] ECR-SC I-A-149 and II-481, para. 33; T-583/93 P v Commission [1995] ECR-SC I-A-137 and II-433, para. 17; T-172/95 Chesi and Others v Council [1998] ECR-SC I-A-265 and II-817, para. 33; T-174/95 Svenska Journalistförbundet v Council [1998] ECR II-2289, para. 80

(see para. 73)

5. The principle of non-discrimination applies only to persons who are in identical or comparable situations. It requires that differences in treatment between different categories of officials or temporary staff must be justified on the basis of objective and reasonable criteria, and that the difference must be proportionate to the aim pursued by the differential treatment.

(see para. 83)

See: T-8/93 Huet v Court of Auditors [1994] ECR II-103, para. 45

6. An official is required to make repayment, pursuant to Article 85 of the Staff Regulations, 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. Furthermore, it is not necessary for the official concerned, in the exercise of his duty of diligence, to be able to determine the precise extent of the error made by the administration. The fact that he has doubts about the validity of the payments in question is sufficient for him to be obliged to contact the administration so that it can carry out the necessary checks. It must be verified whether the official concerned was able to carry out the necessary checks. The factors to be taken into consideration in that regard concern the official’s level of responsibility, his grade and seniority, the degree of clarity of the provisions of the Staff Regulations laying down the conditions for granting the allowance and the significance of the changes which have taken place in his personal or family circumstances, when payment of the sum at issue is dependent on the administration’s assessment of such circumstances.

The fact that an official is in Grade C does not mean that he was unable to carry out the necessary checks and therefore does not preclude the recovery of the undue payment.

(see paras 90-91, 94)

See: 310/87 Stempels v Commission [1989] ECR 43, para. 10; T-107/92 White v Commission [1994] ECR-SC I-A-41 and II-143, paras 37 to 43; T-38/93 Stahlschmidt v Parliament [1994] ECR-SC I-A-65 and II-227, para. 19; T-545/93 Kschwendt v Commission [1995] ECR-SC I-A-185 and II-565, para. 104; T-122/95 Chabert v Commission [1996] ECR-SC I-A-19 and II-63, para. 35; T-14/99 Kraus v Commission [2001] ECR-SC I-A-7 and II-39, para. 41; T-205/01 Ronsse v Commission [2002] ECR-SC I-A-217 and II-1085, para. 71; T-7/01 Pyres v Commission [2003] ECR-SC I-A-37 and II-239, para. 77

7. The duty of the administration to have regard for the interests of its officials and the principle of sound administration imply in particular that when the competent authority takes a decision concerning the situation of an official, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned. The duty to have regard for the interests of its officials cannot in any circumstances require the administration to act in contravention of the relevant provisions. In particular, the duty to have regard for the welfare of officials cannot lead the administration to give a Community provision an effect contrary to its clear and precise wording. An official cannot therefore rely on the duty to have regard for his welfare in order to obtain advantages which he cannot be granted under the Staff Regulations.

(see paras 99-100)

See: 321/85 Schwiering v Court of Auditors [1986] ECR 3199, para. 18; T-65/92 Arauxo-Dumay v Commission [1993] ECR II-597, para. 37; T-100/92 La Pietra v Commission [1994] ECR-SC I-A-83 and II-275, para. 58; T-66/95 Kuchlenz-Winter v Commission [1997] ECR II-637, para. 43; T-203/97 Forvass v Commission [1999] ECR-SC I-A-129 and II-705, para. 54; T-67/99 K v Commission [2000] ECR-SC I-A-127 and II-579, paras 68 and 69; T-199/01 G v Commission [2002] ECR-SC I-A-217 and II-1085, para. 71; T-7/01 Pyres v Commission [2003] ECR-SC I-A-37 and II-239, para. 77

8. Non-contractual liability on the part of the Community presupposes the fulfilment of a set of conditions concerning the illegality of the allegedly wrongful act committed by the Community institution, the actual damage suffered, and the existence of a causal link between the alleged act and the damage alleged to have been suffered. Consequently, an application made by an official for compensation for non-material damage alleged to have been suffered by him as a result of the illegality of the act committed by the Community institution must be dismissed if that illegality is not established.

(see para. 106)

See: T-3/92 Latham v Commission [1994] ECR-SC I-A-23 and II-83, paras 63 to 66; T-589/93 Ryan-Sheridan v European Foundation for the Improvement of Living and Working Conditions [1996] ECR-SC I-A-27 and II-77, paras 141 and 142