Judgments nº T-568/16 and T-599/16 of Tribunal General de la Unión Europea, June 14, 2018

• Resolution Date: June 14, 2018
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-568/16 and T-599/16

(Civil service - Officials - Death of a spouse who was an official - Persons entitled under the deceased official - Survivor’s pension - Orphan’s pension - Change of post of the official, surviving spouse - Adaptation of salary - Method of calculation of survivor’s and orphan’s pensions - Article 81a of the Staff Regulations - Notice of modification of pension entitlements - An act affecting a person adversely within the meaning of Article 91 of the Staff Regulations - Article 85 of the Staff Regulations - Recovery of undue payments - Conditions - Claim for compensation for material and non-material damage)

In Joined Cases T-568/16 and T-599/16,

Alberto Spagnolli, residing in Parma (Italy),

Francesco Spagnolli, residing in Parma,

MariaAlice Spagnolli, residing in Parma,

Bianca Maria Elena Spagnolli, residing in Parma,

represented by C. Cortese and B. Cortese, lawyers,

applicants,

v

European Commission, represented by G. Gattinara and F. Simonetti, acting as Agents,

defendant,

APPLICATION pursuant to Article 270 TFEU for, in Case T-568/16, annulment of Notice of modification No 3 PMO/04/LM/2015/ARES of the Commission’s Office for the Administration and Payment of individual entitlements (PMO) of 6 February 2015 containing the statement of the new amounts of the survivor’s and orphan’s pensions granted to the applicants and, in Case T-599/16, firstly, annulment of Decision PMO/04/LM/2015/ARES/3406787 of the PMO of 17 August 2015 for recovery of amounts paid unduly to the applicants by way of survivor’s and orphan’s pensions and, secondly, for compensation for the losses allegedly suffered by the applicants,

THE GENERAL COURT (Ninth Chamber),

composed of S. Gervasoni, President, L. Madise (Rapporteur) and R. da Silva Passos, Judges,

Registrar: X. Lopez Bancalari, Administrator,

having regard to the written part of the procedure and further to the hearing on 9 November 2017,

gives the following

Judgment

Legal framework

1 The first paragraph of Article 79 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), in the version applicable to the present dispute, provides:

‘The surviving spouse of an official or of a former official shall be entitled, in the manner provided for in Chapter 4 of Annex VIII, to a survivor’s pension equal to 60% of the retirement pension or invalidity allowance which was paid to the deceased, or which, irrespective of length of service or of age, would have been payable to him if he had qualified for it at the time of death.’

2 The second paragraph of Article 79 of the Staff Regulations provides:

‘The amount of the survivor’s pension payable to the surviving spouse of an official who has died while in one of the administrative statuses specified in Article 35, shall be neither less than the minimum subsistence figure nor less than 35% of the last basic salary received by the official.’

3 The first paragraph of Article 80 of the Staff Regulations is worded as follows:

‘Where an official or person entitled to a retirement pension or invalidity allowance dies leaving no spouse entitled to a survivor’s pension, the children dependent on the deceased within the meaning of Article 2 of Annex VII at the time of his death shall be entitled to orphans’ pension in accordance with Article 21 of Annex VIII.’

4 The third paragraph of Article 80 of the Staff Regulations provides:

‘Where an official or person entitled to a retirement pension or invalidity allowance dies but the conditions set out in the first paragraph are not satisfied, the dependent children within the meaning of Article 2 of Annex VII shall be entitled to orphan’s pension in accordance with Article 21 of Annex VIII; the pension shall, however, be equal to half the pension calculated in accordance with that Article.’

5 The first paragraph of Article 81 of the Staff Regulations provides:

‘A person entitled to a retirement pension or to an invalidity allowance, or to a survivor’s pension shall be entitled, under the conditions laid down in Annex VII, to the family allowances specified in Article 67; the household allowance shall be calculated by reference to the pension or the allowance of the recipient. These allowances shall be paid to recipients of a survivor’s pension only in respect of the children dependent on the deceased official or former official at the time of death.’

6 The second paragraph of Article 81 of the Staff Regulations is worded as follows:

‘The amount of the dependent child allowance payable to the person entitled to a survivor’s pension shall, however, be twice the amount of the allowance provided for in Article 67(1)(b).’

7 Article 81a(1)(a) of the Staff Regulations provides:

‘1. Notwithstanding any other provisions, notably those concerning the minimum amounts payable to persons entitled to a survivor’s pension, the total amount payable by way of survivor’s pension plus family allowances less tax and other compulsory deductions to the widow and other entitled persons may not exceed the following:

(a) in the event of the death of an official having one of the administrative statuses set out in Article 35, the amount of the remuneration which the official would have received in the same grade and step if he had still been in the service, plus any family allowances received by him in that case and less tax and other compulsory deductions …’

8 Article 2(1) of Annex VII to the Staff Regulations is worded as follows:

‘An official who has one or more dependent children shall, in accordance with paragraphs 2 and 3 below, receive an allowance of EUR 372.61 per month for each dependent child.’

9 The first subparagraph of Article 2(2) of Annex VII to the Staff Regulations provides:

‘2. “Dependent child” means the legitimate, natural or adopted child of an official, or of his spouse, who is actually being maintained by the official.’

10 Article 21 of Annex VIII to the Staff Regulations provides:

‘1. The orphan’s pension provided for in Article 80, first, second and third paragraphs of the Staff Regulations shall for the first orphan be equal to eight tenths of the survivor’s pension to which the surviving spouse of an official or former official in receipt of a retirement pension or invalidity allowance would have been entitled, the reductions set out in Article 25 [of Annex VIII to the Staff Regulations] being disregarded.

It shall not be less than the minimum subsistence figure, subject to the provisions of Article 22 [of that annex to the Staff Regulations].

2. The pension shall be increased, for each dependent child after the first, by an amount equal to twice the dependent child allowance.

   ...

3. The total amount of pension and allowance calculated in this way shall be divided equally among the orphans entitled.’

   11 Article 82(1) of the Staff Regulations provides:

   ‘1. The pensions provided for above shall be calculated by reference to salary scales in force on the first day of the month in which entitlement commences.

   No correction coefficient shall be applicable to pensions.

   Pensions expressed in euro shall be paid in one of the currencies referred to in Article 45 of Annex VIII to the Staff Regulations.’

   12 Article 41 of Annex VIII to the Staff Regulations provides:

   ‘The amount of pension may at any time be calculated afresh if there has been error or omission of any kind.

   They shall be liable to modification or withdrawal if the award was contrary to the provisions of the Staff Regulations or of this Annex.’

   13 The first paragraph of Article 85 of the Staff Regulations reads as follows:

   ‘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.’

   14 Article 3(1) of Regulation (EEC, Euratom, ECSC) No 260/68 of the Council of 29 February 1968, laying down the conditions and procedure for applying the tax for the benefit of the European Communities (OJ, English Special Edition 1968 (I), p. 37) reads as follows.

   ‘The tax shall be payable each month on salaries, wages and emoluments paid by the Communities to each person liable.’

   Background to the dispute

   15 Francesco Spagnolli, Maria Alice Spagnolli and Bianca Maria Elena Spagnolli, three of the applicants, born on 10 May 1997, 23 March 1999 and 3 December 2001 respectively, are the children of Mr Alberto Spagnolli, also an applicant, and his spouse, Ms Elisa Simonazzi.

   16 Ms Simonazzi was employed as an official of the European Union in grade AD 6, step 3, with the European Commission from 16 July 2005 to 22 April 2011, the date of her death, in Parma (Italy).

   17 At the time of his wife’s death, Mr Alberto Spagnolli held a post as an official in grade AD 12, step 1, with the Directorate-General (DG) for Maritime Affairs and Fisheries of the Commission.

   18 On 29 July 2011, the PMO.4 Pensions Unit (‘the PMO.4 unit’) of the Office for the Administration and Payment of individual entitlements (PMO) of the Commission communicated to Mr Alberto Spagnolli the decision, taken pursuant to inter alia Articles 79 and 80 of the Staff Regulations, to grant him entitlement to a survivor’s pension and to grant his three children entitlement to an orphan’s pension with effect from 1 August 2011. On the same day, the details of the amounts of those pensions was specified by the notice of determination of entitlements to survivor’s and orphan’s pensions PMO/04/MAG/2011/ARES, to which was attached, as an annex, the details of the calculations of those pensions (‘Notice No 1’).

   19 On 10 October 2011, the Director-General of the DG Maritime Affairs and Fisheries adopted a decision by which it authorised, at the request of Mr Alberto Spagnolli, his secondment to the European Food Safety Authority (EFSA) in Parma, with effect from 16 October 2011 and for an initial period of five years. The temporary agent contract concluded by Mr Alberto Spagnolli with the EFSA provided that he would be classified in...