Report for the Hearing delivered in Case 310/87

I — Facts

1. Jacobus Stempels, who had been an official of the Commission since 1 September 1958, assigned to the department of the Secretary-General, was retired as a special adviser in Grade A 2 on 1 December 1986.

2. By letter dated 26 October 1976 Mr Stempels had informed the Director for Personnel of a change in his marital status as a result of his divorce. In that letter he referred to information obtained from an official in the Personnel Department according to which the change in his marital status would not affect his remuneration.

3. Since his daughter was still dependent on him Mr Stempels continued to receive the dependent child allowance and the household allowance pursuant to Articles 1(1) and 2 of Annex VII to the Staff Regulations.

4. By letter dated 23 March 1983 the head of the Financial and Administrative Rights Division of the Directorate-General for Personnel and Administration informed Mr Stempels that the administration accepted his claim for the dependent child allowance in respect of his daughter for the period from 1 January 1983 to 31 December 1983.

5. In the course of settling Mr Stempels' financial entitlement as a pensioner the Commission's administration discovered that he had continued to receive the household allowance until his retirement, contrary to Article 1(2) of Annex VII to the Staff Regulations, which provides that a divorced official is entitled to the household allowance only if he has one or more dependent children.

6. By letter dated 9 December 1986 the Director for Personnel informed Mr Stempels that the Commission had decided to apply Article 85 of the Staff Regulations, according to which any sum overpaid is to 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. On 12 January 1987 the head of the Salaries Office informed Mr Stempels that the sum to be recovered was BFR 627022, representing the household allowance wrongly paid for the period from 1 January 1984, the date when Mr Stempels' daughter ceased to be dependent, until 1 December 1986, the date when Mr Stempels retired.

7. Following an exchange of correspondence which led to no conclusion Mr Stempels lodged a complaint on 5 March 1987 in which he requested the Commission to reverse its decision to recover the household allowance wrongly paid and asserted that the conditions in Article 85 of the Staff Regulations were not satisfied.

8. By letter dated 15 July 1987 the Commission notified Mr Stempels of its reasoned decision rejecting his complaint.

II — Written procedure and conclusions of the parties

1. By application lodged at the Court Registry on 12 October 1987 Mr Stempels brought an action for annulment of the Commission's decision of 15 July 1987.

2. Jacobus Stempels, the applicant, claims that the Court should:

3. The Commission, the defendant, contends that the Court should:

4. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.

III — Submissions and arguments of the parties

1. Mr Stempels submits that Article 85 of the Staff Regulations is based on the notion that save in the two cases mentioned, namely where the recipient was aware that there was no due reason for the payment or the overpayment was patently such that he could not have been unaware of it, the administration should regard the recipient as being in good faith. In consequence the Commission ought not to inquire whether in any particular case the person concerned knew the provision of the Staff Regulations infringed, since the recipient is not required to know the Staff Regulations.

2. The Commission contends that according to the interpretation which Mr Advocate General Mayras gave to Article 85 in his Opinion in the Kuhl case, an action for the recovery of overpayment may be brought in the following circumstances: the official received certain sums in error; he was not in good faith or even if he was in no way responsible he was aware that there was no due reason for the payment; an error on the part of the administration, even where it is not brought about by the official, does not exclude an action for recovery unless the official remained unaware that there was no due reason for the payment and under normal circumstances he could not have been aware of it because it was in no way obvious to him.

1 Language of the case: French.