Court of Justice of the European Communities (including Court of First Instance Decisions)

ORDER OF THE GENERAL COURT (Fourth Chamber)

17 January 2023 (*)

(Civil service – Officials – Remuneration – Family allowances – Dependent child allowance – Article 2 of Annex VII to the Staff Regulations – Conditions for grant – Withdrawal of entitlement to the allowance – Recovery of undue payments – Article 91a of the Staff Regulations – Delegation to the PMO by the Commission – Action brought against the delegating institution – Inadmissibility)

In Case T‑50/22,

AL, represented by R. Rata, lawyer,

applicant,

v

Council of the European Union, represented by M. Bauer and M. Alver, acting as Agents,

and

European Commission, represented by T. Bohr and L. Hohenecker, acting as Agents,

defendants,

THE GENERAL COURT (Fourth Chamber),

composed of R. da Silva Passos, President, N. Półtorak (Rapporteur) and T. Pynnä, Judges,

Registrar: E. Coulon,

having regard to the written part of the procedure,

makes the following

Order

1        By his action based on Article 270 TFEU, the applicant, AL, seeks annulment in part of the decision of the Director-General for Human Resources and Security of the European Commission of 22 October 2021 by which the latter rejected in part the complaint brought against the decision of the Office for the Administration and Payment of Individual Entitlements (PMO) of 22 March 2021 to cease payment of the family allowances which he was receiving for his adopted daughter and to order the recovery of a number of family allowances he was receiving (‘the decision of 22 March 2021’).

 Background to the dispute

2        The applicant is an official in the General Secretariat of the Council of the European Union (‘the GSC’) [confidential]. (1)

3        Following a request made by the applicant, various allowances were granted to him between 2009 and 2019 in so far as his mother and three other persons were treated as dependent children within the meaning of Article 2(4) of Annex VII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).

4        On 13 May 2019, pursuant to Article 2(2) of the Staff Regulations, the Council adopted Decision (EU) 2019/792 entrusting to the Commission – the PMO – the exercise of certain powers conferred on the appointing authority and the authority empowered to conclude contracts of employment (OJ 2019 L 129, p. 3).

5        In December 2020, the applicant was informed by the European Anti-Fraud Office (OLAF) that an investigation concerning him, linked to suspicions of fraud regarding his statement concerning the composition of his family and the conditions under which he had obtained the corresponding family allowances, had been closed. In addition, OLAF informed him, inter alia, that two recommendations had been sent to the GSC. The first concerned the recovery of sums which OLAF considered to have been unduly paid to the applicant by virtue of those allowances, and the second concerned the opening of disciplinary proceedings.

6        On 22 March 2021, in the light of OLAF’s recommendations, the PMO ordered the recovery of the sums which it considered must be paid by the applicant, pursuant to Article 85 of the Staff Regulations, relating to the recovery of undue payments.

7        On 22 October 2021, the Director-General for Human Resources and Security of the Commission rejected in part the applicant’s complaint against the decision of 22 March 2021, maintaining that it was necessary to cease paying the family allowances which he was receiving for his adopted daughter and to order the recovery of a number of family allowances received by him.

 Forms of order sought

8        The applicant claims that the Court should:

–        annul in part the decision of 22 October 2021;

–        order the Council and the Commission to pay the costs.

9        In the plea of inadmissibility raised under Article 130 of the Rules of Procedure of the General Court, the Council contends that the Court should:

–        dismiss the action as being inadmissible in so far as it concerns it;

–        order the applicant to pay the costs.

 Law

10      Under Article 130(1) and (7) of the Rules of Procedure, on application by the defendant, the Court may decide on inadmissibility or lack of competence without going to the substance of the case. In the present case, since the Council has applied for a decision on the inadmissibility of the action so far as it is concerned and the Court considers that it has sufficient information from the documents in the file, the Court has decided to rule on that application.

11      In its plea of inadmissibility, the Council submits, in essence, that the contested decision was adopted by the PMO of the Commission on the basis of the powers delegated to it pursuant to Decision 2019/792. Thus, according to the Council, the present action must be brought against the Commission and dismissed as being inadmissible in so far as it concerns the Council.

12      In his observations on the plea of inadmissibility, the applicant disputes the Council’s arguments. In essence, first, he maintains that, in so far as he requested that the present action be joined with Case T‑692/21 (AL v Commission), a decision should be adopted in that regard before determining whether the Council must be a party to those cases. Second, he submits that there is a close relationship between the present case, linked to the recovery of the allowances at issue, and Case T‑22/22 (AL v Council) linked with the disciplinary proceedings following which the Council decided to remove him from his post. Therefore, he considers that, since the Council is the defendant in the disciplinary proceedings, it ought logically to be a party to the present case in which it has a particular interest. Third, he takes the view that the PMO did not adopt any decision to cease payment of the allowances for his adoptive daughter and that such cessation results, in reality, from the implementation of a decision attributable to the Council. In that regard, he states that he did not have access to the service-level agreement referred to in recital 3 of Decision 2019/792, and is of the view that he is unable to respond to the Council’s plea of inadmissibility in those circumstances.

13      As a preliminary point, it should be recalled that an appeal must be brought against the institution from which the act having adverse effect emanated (see, to that effect, judgment of 4 October 2018, Constantinescu v Parliament, T‑17/17, EU:T:2018:645, paragraph 30, and order of 17 December 2020, IM v EIB and EIF, T‑80/20, not published, EU:T:2020:636, paragraph 25).

14      Thus, an appeal brought against an institution other than the institution from which the act having adverse effect emanates must be dismissed as being inadmissible (see, to that effect, order of 17 December 2020, IM v EIB and EIF, T‑80/20, not published, EU:T:2020:636, paragraph 25).

15      Furthermore, under Article 2(2) of the Staff Regulations, one or more institutions may entrust to any one of them or to an interinstitutional body the exercise of some or all of the powers conferred on the appointing authority other than decisions relating to appointments, promotions or transfers of officials. In accordance with Article 91a of the Staff Regulations, any appeals relating to the areas in which Article 2(2) thereof has been applied shall be made against the institution to which the appointing authority entrusted with the exercise of powers is answerable.

16      In that regard, it is apparent from Article 1(1)(a) and (d) of Decision 2019/792, adopted on the basis of Article 2(2) of the Staff Regulations, that the Council delegated to the PMO, which falls under the aegis of the Commission, the exercise of the powers conferred by the Staff Regulations on the appointing authority concerning GSC staff in relation to individual rights provided for in Articles 1 to 13 of Annex VII to the Staff Regulations and the recovery of undue payments, in accordance with Article 85 of the Staff Regulations, in respect of such individual rights.

17      In the present case, by the decision of 22 March 2021, the PMO ordered, first, pursuant to Article 85 of the Staff Regulations, the recovery of sums corresponding to family allowances which the applicant had received on the basis of Article 2(4) of Annex VII to the Staff Regulations and, second, the cessation of payment of such a family allowance which the applicant received for his adopted daughter.

18      Accordingly, the decision of 22 March 2021 was adopted by the PMO, as the institution to which power was delegated, with the result that the present action must be brought solely against the Commission.

19      That finding is not called into question by the applicant’s arguments.

20      Since the applicant asserts that the Council has a particular interest in the outcome of the present action, in so far as there is a close relationship between the latter and Case T‑22/22 (AL v Council), in which he is the main party, it must be stated that the possible interest of an EU institution in intervening in an action cannot in any way prejudge the identity of the defendant against whom that action must be brought.

21      In addition, the applicant alleges that it cannot be considered that the decision of 22 March 2021 was adopted by the PMO, since the latter in fact merely carried out suggestions addressed to it by the Council in a letter of 1 January 2021.

22      It is clear from the text of that decision that, via that decision, the PMO which adopted, signed and forwarded it to the applicant decided to cease payment of the family allowances which the applicant was receiving for his adoptive daughter and to order the recovery of various family allowances which he had received.

23      Lastly, via the argument by which the applicant submits that he was denied access to the service-level agreement of 3 May 2019 referred to in recital 3 of Decision 2019/792, that argument seeks, in essence, to call into question the Commission’s competence to adopt the decision of 22 March 2021. However, it must be stated in that regard that such considerations are not capable of establishing that the present action ought to have been brought against the Council.

24      It follows that the present action is inadmissible in so far as it is brought against the Council and must therefore be dismissed to that extent.

 Costs

25      Under Article 133 of the Rules of Procedure, the General Court is to give a decision as to costs in the judgment or order which closes the proceedings. Since the present order closes the proceedings as far as the Council is concerned, a decision as to costs must be given in relation to those proceedings.

26      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Council.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby orders:

1.      The action is dismissed as being inadmissible in so far as it has been brought against the Council of the European Union.

2.      AL shall bear his own costs and pay the costs incurred by the Council in the proceedings concerning the plea of inadmissibility.

3.      The costs are reserved as to the remainder.

Luxembourg, 17 January 2023.

*      Language of the case: English.

1 Confidential information omitted.

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