Opinion of Mr Advocate General Mayras

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.

I —. 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:

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 entided 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 [adminstrative 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?

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.

1 Translated from the French.