Judgment No. 4469
1. The decision of the Director General of Eurocontrol of 22 March 2018, as well as the decision of the Head of Pay of 1 March 2017, are set aside.
2. Eurocontrol shall repay to the complainant the sum of 5,558.83 euros which was deducted from his remuneration pursuant to the decisions set aside in the judgment.
3. Eurocontrol shall pay the complainant costs in the amount of 4,000 euros.
4. All other claims are dismissed.
The complainant challenges Eurocontrol’s decision to recover various sums which were allegedly unduly paid to him.
complaint allowed; recovery of overpayment
[A]s 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 (see, for example, Judgment 4139, consideration 14, and the case law cited therein), where a Eurocontrol staff member receives an undue payment, such recovery is only possible if one of the two conditions specified 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.
Jugement(s) TAOIT: 4139
general principle; recovery of overpayment
The complainant seeks an award of compensation for the moral injury that the impugned decision allegedly caused him. However, he does not provide any specific evidence of such injury and, having regard to the nature of the impugned decision, which has solely pecuniary effects, the Tribunal finds that the repayment of the deductions from his remuneration is sufficient to compensate him, in this case, for all the injury caused by that decision.
A finding that the complainant did in fact notice the error in calculating his salary would also automatically cast doubt on his good faith, since he would then of course have been required to report that error to the Eurocontrol Administration. However, the Tribunal considers that his good faith is borne out by the fact that the Organisation detected the error committed in 2015 owing to a request for information from the complainant, who [...] expressed surprise to the Administration that he had not been awarded a salary increase when he advanced to the second step of his grade. It is difficult to see why the complainant felt it necessary to raise this matter if he was aware that he had, in fact, already been receiving the remuneration corresponding to the step in question since 2015.
good faith; recovery of overpayment
The central issue in the dispute is therefore whether, as Eurocontrol argues with reference to the alternative condition laid down in the aforementioned Article 87, the fact of the contested overpayment was “patently such that the complainant could not have been unaware of it”.
In this respect, it should be noted that the Tribunal, which has already ruled on the interpretation of this condition, held on that occasion that the condition should be regarded as having been satisfied 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” (see Judgment 3201, consideration 14, in fine). The parties’ arguments in the present case will also be examined on the basis of this interpretation. Several elements in the file lead the Tribunal to consider that the condition in question was not satisfied in this case.
recovery of overpayment; flaw; precedent