Judgment_paragraph 2 · AL v European Commission (C-882/24 P)

2The background to the dispute is set out in paragraphs 2 to 13 of the judgment under appeal in the following terms:2 The [appellant was] an official in the General Secretariat of the Council of the European Union as of 1 December 2007.3 Following a request made by the [appellant], 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 European Commission – the Office for the Administration and Payment of Individual Entitlements (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 On 22 July 2020, the [appellant] was informed by the European Anti-Fraud Office (OLAF) that he was the subject of an investigation opened at the end of 2016, concerning possible fraud relating to his declaration concerning the composition of his family and to the conditions under which he had obtained the corresponding family allowances and the eligibility requirements for the corresponding family allowances.6 In December 2020, the [appellant] was informed by OLAF that the investigation referred to in paragraph 5 above had been closed. In addition, OLAF sent the [appellant] and the General Secretariat of the Council the final report of the investigation concerning the [appellant] as well as two recommendations. The first concerned the recovery of sums which OLAF considered had been unduly paid to the [appellant] through those allowances, and the second concerned the opening of disciplinary proceedings.7 On 10 February 2021, the appointing authority of the Council … decided, in accordance with the provisions of Article 3 of Annex IX to the Staff Regulations, to initiate disciplinary proceedings against the [appellant].8 By a note of 3 March 2021, the Office for the Administration and Payment of Individual Entitlements (PMO) of the Commission informed the [appellant] that, following the OLAF recommendations, the unduly received amounts, corresponding to a total amount, excluding interest, of EUR 142 824.71, would be recovered and that he had the opportunity to submit his observations on that decision within 15 days of its notification. On 19 March 2021, the [appellant] sent observations to the PMO.9 By the decision of 22 March 2021, the PMO informed the [appellant] that, having regard to OLAF’s final report and after an analysis of his observations, it had been decided to implement the note of 3 March 2021 and to issue the corresponding recovery order pursuant to Article 85 of the Staff Regulations, concerning the recovery of overpayments. In particular, recovery of the amount of allowances paid was ordered:– in respect of the [appellant’s] mother, as regards the period from 1 October 2009 to 30 September 2015, as had been decided in the decision of 22 March 2021, in so far as the mother could not be treated as a dependent child within the meaning of Article 2(4) of Annex VII to the Staff Regulations and the [appellant] had deliberately misled the administration within the meaning of the second paragraph of Article 85 of the Staff Regulations by failing to declare his military pension when applying for the allowance at issue;– in respect of the [appellant’s] two dependent children (“A and B”), to whom he was uncle-by-marriage and who had been placed in foster family care with him for the period from 1 August 2010 to 31 July 2013, for one, and from 1 August 2010 to 31 March 2013, for the other, as had been decided in the decision of 22 March 2021, since the foster placement relationship no longer legally existed, given the decision of the Romanian child protection authorities of 30 January 2013, which had put an end to the [appellant’s] foster family placement measures [(“the national decision terminating the foster placement”)]. Moreover, the [appellant] deliberately misled the administration, within the meaning of the second paragraph of Article 85 of the Staff Regulations, concerning the end of the foster placement period of the two children;– in respect of the [appellant’s] adoptive daughter (“C”), for whom he had secured an adoption decision on 16 April 2019 by a Romanian court, as regards the period from 1 March 2019 to 31 January 2021 and the cessation of payment of allowances from 1 February 2021, as had been decided in the decision of 22 March 2021, on account of the fact that the [appellant] had not adduced any evidence of C’s actual maintenance.10 On 22 June 2021, the [appellant] lodged a complaint under Article 90(2) of the Staff Regulations against the decision of 22 March 2021.11 On 27 September 2021, at the end of the disciplinary proceedings, the [Appointing Authority] of the Council adopted the penalty of removal from post in respect of the [appellant], in accordance with Article 9(1)(h) of Annex IX to the Staff Regulations.12 On 22 October 2021, the Director-General for Human Resources and Security of the Commission adopted [the decision at issue].13 By that decision, the Director-General for Human Resources and Security of the Commission rejected in part the [appellant’s] complaint against the decision of 22 March 2021, maintaining that it was necessary to cease payment of the family allowances which he received in respect of C and to order recovery of a number of family allowances received by him. That complaint was nevertheless upheld as regards the allowances received by the [appellant] in respect of A and B for the period from 1 August 2010 to 29 January 2013.’