Judgment No. 4696
Decision
The complaint is dismissed.
Summary
The complainant challenges the decision to recover supposed overpayments made to him by way of expatriation allowance.
Judgment keywords
Keywords
recovery of overpayment; complaint dismissed
Consideration 2
Extract:
Eurocontrol submits that the complaint is irreceivable on the grounds that the complainant did not comply with the requirements under Article VII, paragraph 1, of the Statute of the Tribunal to exhaust the internal means of redress available to him as a former official of the Organisation. However, the Tribunal notes that, pursuant to the last sentence of Article 92(2) of the Staff Regulations, an implied decision rejecting the complainant’s internal complaint, challengeable before the Tribunal, arose on the expiry of four months from the date on which that internal complaint was lodged, namely on 18 June 2020. Therefore, on 16 September 2020, the date on which the complainant filed his complaint with the Tribunal, the internal means of redress available to him had indeed been exhausted. The complaint is therefore receivable and the objection to receivability raised by the Organisation will be dismissed.
Keywords
receivability of the complaint
Consideration 3
Extract:
After the complainant had filed his complaint with the Tribunal, a final decision was taken by the Director General on 7 December 2020 rejecting his internal complaint. In his rejoinder, the complainant therefore specifies that, ultimately, he is impugning that final decision, which in fact confirmed the earlier contested decision of 26 November 2019.
Since the parties have had ample opportunity to comment in their submissions on that final decision, the Tribunal considers it appropriate to treat the complaint as being directed against that decision.
Keywords
impugned decision
Consideration 4
Extract:
The complainant [...] requests an oral hearing. However, the Tribunal considers that the parties have presented sufficiently extensive and detailed submissions and documents to allow it to be properly informed of their arguments and the relevant evidence. The request for an oral hearing is therefore dismissed.
Keywords
oral proceedings
Considerations 8-9
Extract:
In Judgment 4469, consideration 4, the Tribunal has already stated that Article 87 of Eurocontrol’s Staff Regulations constitutes an exception to the general principle of law that any sum paid in error may normally be recovered subject to the rules on time limits. Where a Eurocontrol staff member receives an undue payment, the Tribunal recalled in that judgment that recovery is only possible if one of the two conditions specified in Article 87 is met, namely that the official concerned was aware that there was no due reason for the payment or if the overpayment was patently obvious.
With regard to this second condition, which is the only one relevant to the present case, in the aforementioned Judgment 4469, this time in consideration 6, the Tribunal pointed out that it had already ruled on the interpretation to be given to the condition that requires the contested overpayment to be “patently such that the complainant could not have been unaware of it”. In Judgment 3201, consideration 14, the Tribunal stated that this condition is regarded as being met if “the mistake affecting the amount of the [sums paid] was sufficiently obvious that, even without accurately gauging its significance and determining its causes, it could not have reasonably escaped the notice of a [...] staff member exercising ordinary diligence in the management of his personal affairs”.
Reference(s)
ILOAT Judgment(s): 3201, 4469
Keywords
recovery of overpayment; precedent
Consideration 10
Extract:
[S]taff members are expected to know their rights, ignorance of the law is no excuse and a staff member is deemed to know the regulations and rules governing her or his appointment (see Judgments 4242, consideration 6, and 4166, consideration 4).
Reference(s)
ILOAT Judgment(s): 4166, 4242
Keywords
duty to be informed; ignorance of the rules; duty to know the rules
Consideration 11
Extract:
The existence of an error is at the very source of the principle of law concerning the recovery of undue payments and, in this case, either the error must have been known to the complainant since he could not have been unaware of the Organisation’s rules relating to the expatriation allowance, or else the situation was one that could not have reasonably escaped the notice of an official exercising ordinary diligence in the management of his personal affairs and who was supposed to know the regulations and rules of his organisation.
Keywords
recovery of overpayment; ignorance of the rules
Consideration 15
Extract:
It is true that the Tribunal has already stated that, according to its case law, “an organization’s right to recover an overpayment must be partially – or fully – denied if the circumstances of the case show that the reimbursement sought would be unfair or inequitable for the staff member concerned” (see Judgment 4139, consideration 14). However, since the submissions show that the complainant’s remuneration was in fact too high for more than twenty-six years, and since Eurocontrol can only recover a fraction of the sumsin question, limited to five out of those twenty-six years, and has chosen to recover them through a monthly retention from the pension payments it makes to the complainant, the Tribunal considers that the reimbursement decided on by the Organisation is not unfair or inequitable towards the complainant.
Reference(s)
ILOAT Judgment(s): 4139
Keywords
recovery of overpayment
Consideration 17
Extract:
[T]he Tribunal recalls that, according to its case law, misuse of authority may not be presumed. The burden of proof is on the official who pleads it, here being the complainant (see Judgments 4552, consideration 9, and 4437, consideration 23). The Tribunal considers that no misuse of authority has been established, especially given that, in seeking to recover the contested sums, the Organisation was simply applying the provisions of the Staff Regulations which it was entitled, or indeed required, to implement.
Reference(s)
ILOAT Judgment(s): 4437, 4552
Keywords
misuse of authority; abuse of power
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