JUDGMENT OF 11. 10. 1979 — CASE 142/78 EXNER v COMMISSION

In Case 142/78

THE COURT (Second Chamber) composed of: Lord Mackenzie Stuart, President of Chamber, P. Pescatore and A. Touffait, Judges, Advocate General: G. Reischl Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Conclusions of the parties

III — Summary of the submissions and arguments of the parties

A — Admissibility

B — The substance of the case

Principal submission — first part

Infringement of Article 67 (2) of the Staff Regulations

Principal submissions — second part

Infringement of Article 1 (3) and (4) of Annex VII to the Staff Regulations

Alternative submission

Inapplicability of Article 85 of the Staff Regulations

IV — Oral procedure

Decision

The right to the household allowance

Recovery of the overpayments on the basis of Article 85 of the Staff Regulations

Costs

I —. Facts and procedure

II —. Conclusions of the parties

(1). Rule that the applicant is entitled to payment of the household allowance, with all the legal consequences, in particular as regards the allowances due from the date on which the defendant suspended payment;

(2). Accordingly, declare null and void the decision of the Commission of 6 February 1978;

(3). Order the defendant to repay to the applicant the sum of Bfr 22218 with interest at the normal rate from the submission of the complaint on 15 July 1977.

(4). Declare that there is no ground for the application of Article 85 of the Staff Regulations of Officials;

(5). Grant the requests made in paragraphs (2) and (3) above;

(6). Order the defendant to pay the costs of the proceedings.

(a). When the applicant saw Mr Sterck for the purpose of filling in the declaration as to allowances he informed her that the fact that her husband received a head of household allowance at Eurocontrol did not prevent her drawing the household allowance in her own name;

(b). When, after submission of her complaint, that is, after 15 July 1977, the applicant saw Mr Campey, a lawyer, he informed her that she was right and that she ought to win her case;

—. Dismiss the application as inadmissible and in any event unfounded;

—. Order the applicant to pay the costs;

—. Without prejudice.

III —. Summary of the submissions and arguments of the parties

A —. Admissibility

B —. The substance of the case

IV —. Oral procedure

1. By application received at the Registry on 19 June 1978 the applicant requests the Court to declare, first, that she is entitled to a household allowance within the meaning of Article 67 (1) (a) of the Staff Regulations and Article 1 of Annex VII to the Staff Regulations and, secondly, that Article 85 of the Staff Regulations, which relates to the recovery of overpayments, was wrongly applied to her by the administration of the Commission.

2. As regards that point the Commission claims that the application is inadmissible since it was not preceded, as required by Article 91 of the Staff Regulations, by a complaint relating to the decision no longer to grant the household allowance and that even if the complaint lodged by the applicant were regarded as also extending to that question it was not lodged in good time, which also renders the application inadmissible.

3. The applicant claims that Article 67 (2) of the Staff Regulations, which requires an official to declare allowances of like nature paid from other sources so that they may be deducted from those paid under Articles 1, 2 and 3 of Annex VII, merely expresses a general principle.

4. As against that it must be stated that the clear aim of Article 67 (2), which establishes a general principle applicable in every case, is to prevent a married couple from drawing two household allowances since they are of like nature and paid for the same purpose: to facilitate the life of an official who is married or who, whatever his family situation, has one or more dependent children.

5. On the other hand, Article 1 of Annex VII, in particular paragraph 3 thereof, contains in fact no rule which prohibits the overlapping of benefits and its subject-matter is different from that of Article 67 (2): it provides that the household allowance is lost where the income of the spouse of the official exceeds a certain limit, regardless of whether the spouse receives such an allowance, and that the official is entitled to that allowance only where the spouses have one or more dependent children. It cannot therefore be deduced from that provision that a couple with dependent children may in any event draw the household allowance twice.

6. Furthermore, Article 1 (4) of Annex VII specifies that where a husband and wife are employed in the service of the Communities and are both entitled to the household allowance, it shall be payable only to the person whose basic salary is the higher.

7. Accordingly, it is clear that the aim of Article 67 is to enable each family to receive only one household allowance, paid at the maximum rate.

8. As in this instance it is not disputed that the applicant's husband draws a household allowance and that it is greater than that which the applicant could draw, she was rightly refused the household allowance under Article 67 (2) of the Staff Regulations and the submission must be rejected as unfounded.

9. On that point the dispute concerns whether the administration of the Commission is entitled to demand the repayment of the overpayments in accordance with 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. It follows from that provision that for a sum paid without justification to be recovered evidence must be produced to show that the recipient was actually aware that there was no due reason for the payment or that the fact of the overpayment was patently such that he could not have been unaware of it.

10. Since the applicant disputes both that she was aware that there was no due reason for payment and the evidence to show that, it is necessary to consider the circumstances in which the administration was led to pay the household allowance to the applicant.

11. The administration calculates the family allowances payable to its married employees on the basis principally of the reply to point No 18 in the questionnaire filled in by any person entering its service. Point No 18 is worded as follows: Give details of the family allowances which you receive from other sources. Under that question there are two dotted lines on the form set close together on which is to be written the reply to the question, which is marked by an asterisk referring to the bottom of the page where it is stated Attach supporting document.

12. In view of the fact that Article 67 of the Staff Regulations clearly specifies that family allowances comprise:

13. It must be observed, however, that in the Member States the concept of family allowances is generally understood to mean essentially dependent child allowances and that that is also the meaning given to the term in the Belgian legislation to which the applicant was subject before she entered the service of the Commission. It is therefore difficult to criticize the applicant for having failed to find out the precise definition of the term family allowances after entry into service by referring to Article 67 of the Staff Regulations.

14. The administration of the Commission must also be criticized for failing to draw up questionnaires which on that point were sufficiently explicit, unlike in fact those of the other Community institutions; they were even ambiguous since the amount of space reserved for the reply did not allow any details to be given as to the three constituent elements of family allowances within the meaning of the Staff Regulations of Officials of the Communities. It must also be emphasized that the special office of the administration to which the applicant returned the questionnaire did not react either to the wording of the reply or to the absence of any supporting document and that its conduct in this instance was both remiss and negligent.

15. In addition, the conversations which took place between the officials responsible in that field and the applicant were, at the least, capable of giving rise to a misunderstanding on her part as to the extent of her rights so that it must be concluded that it has not been shown that the applicant was actually aware that there was no due reason for the payment to her of the household allowance and that it cannot be complained that she caused the error on the part of the administration by an incorrect statement or an omission.

16. Finally, as regards the question whether or not the fact that there was no due reason for the payment of the allowance, the amount of which was trifling, was patent, it must be observed that it was not, since the conduct of the administration was such as to have given rise on the pan of the applicant to the reasonable belief that she was entitled to the sums paid to her.

17. It results from the foregoing that the administration of the Commission is not justified in claiming from the applicant the recovery of the overpayments of the household allowance in respect of the period from 1 January 1975 to 30 November 1976 and that the Commission's decision of 18 May 1977 on that point must be annulled.

18. Under Article 69 (3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order that the parties bear their own costs in whole or in part.

On those grounds, THE COURT (Second Chamber) hereby:

1 Dismisses the application inasmuch as it sought recognition that the applicant was entitled to the household allowance;

2 Annuls the decision adopted by memorandum of 18 May 1977 (Ref. IX/A/4/2995) in which the Commission ordered the applicant to repay the overpayments by way of the household allowance;

3 Orders the Commission to repay the applicant the sum of Bfr 22218;

4 Orders the Commission to bear its own costs and one-half of the costs incurred by the applicant.