Opinion of Advocate General Campos Sánchez-Bordona delivered on 20 November 2025.###

1.

By this appeal, a (former) ( 2 ) official of the General Secretariat of the Council of the European Union seeks to have set aside the judgment of the General Court of 10 April 2024, AL v Commission. ( 3 )

2.

The judgment under appeal confirmed a decision of the European Commission ( 4 ) ordering the recovery of certain payments made to the appellant in the form of family allowances.

3.

It is settled case-law of the Court of Justice that the legality of an act adversely affecting a person, challenged by way of an action for annulment, must in principle be assessed in the light of the matters of fact and law existing at the time when that act was adopted.

4.

It falls to be determined now whether the General Court distorted the facts in failing to take into account the retroactive effects of a final national judgment duly entered in the case file and delivered after the adoption of the act adversely affecting AL but prior to the end of the written part of the action for annulment.

5.

In accordance with Article 85:

‘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.

The request for recovery must be made no later than five years from the date on which the sum was paid. Where the Appointing Authority is able to establish that the recipient deliberately misled the administration with a view to obtaining the sum concerned, the request for recovery shall not be invalidated even if this period has elapsed.’

6.

The background to the dispute is set out in detail in paragraphs 2 to 13 of the judgment under appeal. I shall mention only those factual elements of it that are relevant to this Opinion.

7.

AL was appointed as an official on 1 December 2007 and was assigned to the General Secretariat of the Council in Belgium.

8.

On 28 July 2010, the competent Romanian authority placed two minors in foster care with AL. ( 6 ) Authorisation was given for them to be transferred to Belgium to live with AL and his wife.

9.

Under Article 2 of Annex VII to the Staff Regulations, AL applied for dependent child allowance, which was granted to him and paid from 1 August 2010 to 31 July 2013. ( 7 ) In support of his application, AL submitted a number of consular documents equivalent to parental authorisation.

10.

On 30 January 2013, following a joint request to that effect by AL and the minors’ parents, filed on 16 October 2012, the Child Protection Commission adopted two decisions terminating the foster care placement. ( 8 )

11.

It is apparent from the documents in the case that those two national decisions of 30 January 2013, which were adopted without the applicants’ being present, were never notified to AL. ( 9 )

12.

On 22 March 2021, acting on the basis of the findings of an investigation by the European Anti-Fraud Office (OLAF) initiated in 2016 and pursuant to Decision (EU) 2019/792, ( 10 ) the Commission ordered the recovery of (among other benefits) the allowances unduly paid to AL for the two minors during the period from 1 August 2010 to 31 July 2013, in accordance with Article 85 of the Staff Regulations. ( 11 )

13.

AL responded by means of two recourse mechanisms:

14.

The outcome of those two recourse mechanisms was as follows:

15.

On 21 January 2022, AL brought an action for annulment of the decision of 22 October 2021 before the General Court.

16.

In support of his action, he put forward five pleas for annulment. The fourth plea alleged an infringement of Article 85 of the Staff Regulations and an error of assessment in relation to the allowance paid for the two minors covering the period subsequent to the national decisions of 30 January 2013 and up until the end of the period for which the allowance had been granted (from 1 February to 31 July 2013).

17.

Under that plea for annulment, AL:

18.

In a later document (the reply), lodged on 30 August 2022, AL informed the General Court of the outcome of the proceedings before the Tribunalul Bucureşti (Regional Court, Bucharest) and sent it a copy of the judgment of 16 May 2022.

19.

In its rejoinder, the Commission contended that the judgment of 16 May 2022 was incapable of affecting the legality of the contested decision, since that decision had to be assessed exclusively in the light of the matters existing at the time of its adoption. ( 19 )

20.

In the judgment under appeal, the General Court:

21.

Consequently, the General Court dismissed the fourth plea of the application for annulment as unfounded.

22.

In his appeal, lodged on 19 December 2024, AL claims that the Court should:

23.

The Commission contends that the Court should:

24.

In its appeal, AL puts forward three grounds in support of his claim that the judgment under appeal should be set aside. As I have already stated, I shall address only the second of those grounds of appeal, which is divided into three parts.

25.

By the first part of his second ground of appeal, AL claims that the General Court distorted the facts in stating (paragraph 100 of the judgment under appeal) that ‘an action [was] pending’ before the Romanian courts against the national decisions of 30 January 2013, when, in actual fact, that action had been brought to an end by judgment of 16 May 2022, which was incorporated into the proceedings in the reply.

26.

In the second part of the second ground of appeal, AL submits that, as a result of the judgment of 16 May 2022, the General Court made an error of law in stating (paragraph 100 of the judgment under appeal) that the national decisions of 30 January 2013 had produced legal effects as from January 2013.

27.

In the third part of the second ground of appeal, AL maintains that the General Court failed to comply with the rule on the symmetry of forms in stating (paragraph 101 of the judgment under appeal) that the AA had not made an error of assessment by basing its order for recovery of the allowances paid on the national decisions of 30 January 2013.

28.

The Commission objects to this ground of appeal, reiterating that, in order to assess the legality of an act adversely affecting a person, the General Court must take as its point of reference the situation existing at the time when the AA adopted the contested act, that is to say 22 October 2021. On that date, the proceedings before the Tribunalul Bucureşti (Regional Court, Bucharest) were still pending.

29.

In the same vein, the Commission states that, on 22 October 2021, the annulment ex tunc of the national decisions of 30 January 2013 had not yet been ordered.

30.

Finally, the Commission rejects the third part of the second ground of appeal as being unclear and unfounded.

31.

The first and second parts of the second ground of appeal are closely related. They share the criticism, albeit levelled from different points of view, that the General Court failed to take into account: (a) the conclusion of the annulment proceedings brought before the Tribunalul Bucureşti (Regional Court, Bucharest); and (b) the consequences of the judgment of 16 May 2022 for the legal effects of the national decisions of 30 January 2013.

32.

As a preliminary point, I would recall that the (final) judgment of 16 May 2022 declared the national decisions of 30 January 2013 to be null and void ab origine. Consequently, those decisions never produced any legal effects. In particular, they did not put an end, legally, to the foster care measure in place in 2013.

33.

AL was paid the dependent child allowance until 31 July 2013. Accordingly, during the period in which he received that benefit, the foster care measure ordered by decision of 28 July 2010 had to be regarded as valid and effective: the minors could be treated as dependent children in accordance with Article 2(2) of Annex VII to the Staff Regulations.

34.

For the purposes of the application of Article 85 of the Staff Regulations, there were thus no sums unduly paid in the form of dependent child allowance, ( 23 ) or any manifest intention to ‘deliberately mis[lead] the administration’ as to the date on which the foster care measure came to an end.

35.

In that context, the criticism which AL levels at paragraph 100 of the judgment under appeal is twofold:

36.

As I have already indicated, AL claims that the General Court distorted the facts in stating that the action for annulment of the national decisions of 30 January 2013, which had been brought before the Romanian court, was still pending when it had, in fact, already been concluded. He also criticises the General Court for having failed to take into account the (final) judgment of 16 May 2022 which brought that action for annulment to an end.

37.

As a ground of appeal of an ‘exceptional nature’, ( 25 ) distortion of the facts must be interpreted strictly. In order for such a distortion to be present, the following conditions must be met:

38.

As regards the first condition, in my opinion, AL discharged his duty to substantiate and prove his claim: he identified precisely the allegedly distorted fact and the error of appraisal arising from its distortion. ( 29 )

39.

As regards the third condition, there is in my opinion no denying the impact of the judgment of 16 May 2022, which declared the national decisions of 30 January 2013 null and void ab origine. Those decisions, as I have already stated, never produced any legal effects, in the opinion of the Romanian court, which has a direct impact on the ‘soundness’ of the judgment under appeal.

40.

The assessment of the second condition, on the other hand, presents more difficulties, on account of when the judgment of 16 May 2022 was delivered. That judgment was given after the adoption of the contested decision but prior to the conclusion of the written part of the action for annulment pending before the General Court.

41.

In that regard, I would like to draw attention to two relevant points.

42.

First of all, it is common ground that AL submitted the judgment of 16 May 2022 to the General Court, attaching it to the reply along with a translation of the judgment into the language of the proceedings.

43.

It is also common ground that the General Court did not assess the existence of the judgment of 16 May 2022 and its legal effects on the national decisions of 30 January 2013.

44.

I share the view expressed by Advocate General Mengozzi: a distortion of the facts may present itself in the form of ‘a manifestly inaccurate finding of the content of the evidence taken into account, or … the omission or selection of evidence giving rise to a manifestly misleading and incorrect impression of the truth’. ( 30 )

45.

There will therefore be a distortion of the facts where there is an unjustified or arbitrary omission or selection of evidence.

46.

The Commission argues that, in the present case, the omission was not only justified but also required by the case-law of the Court of Justice on the point in time at which the legality of the contested measure is to be assessed, having regard to the matters of fact and law existing at the time when the measure was adopted. ( 31 )

47.

For the reasons which I shall set out below, it is my view that that argument cannot succeed in the present case.

48.

Should the General Court have based its assessment solely on the matters existing at the time when the administration adopted the contested decision, on 22 October 2021? ( 32 )

49.

To my mind, both the Commission (in its response) and the General Court (in the judgment under appeal) were misguided in their approach to determining which matters of fact and law ‘existed’ on that date. They both rely on a purely material view of the relevant factors, as a result of which:

50.

However, that approach is liable to sidestep the fundamental issue raised in the present case, which is the consideration of the retroactive and purely declaratory effect of the judgment of 16 May 2022, together with its status as res judicata.

51.

The judgment of 16 May 2022 prevented the General Court from giving effect to the national decisions of 30 January 2013, invalid by operation of law, in its definition of the factual and legislative context.

52.

By not taking account of that matter (that is to say, by failing to recognise that, on 22 October 2021, the national decisions of 30 January 2013 could not be accepted as valid), the General Court disregarded the retroactive effect of the judgment of 16 May 2022. ( 33 ) It thus distorted the key fact in this dispute, which is the situation of the minors in relation to AL, and the understanding of the Romanian law applicable ratione temporis to the facts.

53.

For the purposes of establishing a distortion of the facts, it is immaterial that the nullity of the national decisions of 30 January 2013 followed from a final judgment delivered after the adoption of the contested decision, if – as is the case here – the wording of that judgment shows that its legal effects are retroactive to an earlier date.

54.

As I have already said, the judgment of 16 May 2022altered the situation‘existing’ in January 2013 by unequivocally declaring the national decisions of 30 January 2013 to be absolutely and retroactively null and void. Those decisions had been removed root and branch (ex tunc) from the Romanian legal order.

55.

Furthermore, the judgment of 16 May 2022 did not have an independent constitutive effect: it simply ‘acknowledges’ the defect vitiating the national decisions of 30 January 2013from their inception. ( 34 ) In annulling those national decisions, the Romanian court restored the legal situation to that which had existed prior to their delivery (as defined by the decision of 28 July 2010). ( 35 )

56.

In short, the judgment of 16 May 2022 was the definitive (and final) response by a Romanian court to the action challenging the validity of a national measure over which the General Court has no jurisdiction. The latter had a duty to accept the assessments of the Romanian court and to recognise the authority of res judicata attaching to that judgment. ( 36 )

57.

In the light of the content of the judgment of 16 May 2022, the situation existing on 22 October 2021 should, as I have said, have been assessed on the basis that the foster care arrangement in place on 22 October 2021 had not been changed, by operation of law, by the national decisions of 30 January 2013.

58.

In order to meet the threshold for a distortion of the facts, the General Court must have ‘manifestly exceeded the limits of a reasonable assessment’ of the evidence entered in the case file. ( 37 ) The interpretation proposed by the party claiming the distortion must be the only way in which the documents before the Court could be construed. The divergent assessment of those documents by the General Court must show that it distorted their content ‘in a manner manifestly at odds with their wording’. ( 38 )

59.

I consider that to be the case here.

60.

The wording of the judgment of 16 May 2022 does not allow for any interpretation other than that based on the nullity ab origine and ex tunc of the national decisions of 30 January 2013. ( 39 ) A reading of that judgment does not support the reconstruction of the facts carried out in paragraph 100 of the judgment under appeal.

61.

The foregoing is sufficient to support the conclusion that the General Court distorted the facts with respect to the status of the action brought before the Tribunalul Bucureşti (Regional Court, Bucharest) and the relevance of the judgment of 16 May 2022 as a key factor in the application of Article 85 of the Staff Regulations.

62.

It stands to reason that, when it adopted the contested decision (on 22 October 2021), the administration was unaware of the existence of the judgment of 16 May 2022 and of the absolute nullity of the national decisions of 30 January 2013. That lack of awareness, however, has no bearing on what I have just said, as I shall explain below.

63.

In the abstract, it could be argued that the circumstances informing the assessment of the legality of a contested decision must not only ‘exist’ at the time when that decision was adopted but must also be ‘known’ to the administration which issued it. ( 40 )

64.

In my view, however, prior knowledge by the administration is not an absolute condition. The case-law on the review of legality (which recognises the administration’s decision-making autonomy vis-à-vis the General Court) ( 41 ) allows the need for prior knowledge to be dispensed with in certain situations.

65.

The requirement that the administration must have had an opportunity to acquaint itself with and assess autonomously beforehand the matters of fact and law on which the review as to the legality of the act adversely affecting a person is based is, depending on the case in question, either dispensable ( 42 ) or, conversely, indispensable ( 43 ) in the context of that review.

66.

The variations in the treatment afforded to the requirement of prior knowledge (by the administration) depend on: (a) the structure of, and aims pursued by, the administrative procedure in the various areas of EU law; and (b) the different points of balance between those aims and the (opposing) interests of the person adversely affected by an act as someone entitled to effective judicial protection. ( 44 )

67.

Identifying the point of equilibrium inherent in matters relating to the civil service calls for a reasoned balance to be struck between two different factors:

68.

With regard to the first factor, the Court of Justice has drawn attention to ‘the principle consistently upheld by the Court according to which Article 91 of the Staff Regulations is designed to permit and encourage the amicable settlement of differences which have arisen between officials and the administration. In order to comply with that requirement it is essential that the administration should be in a position to know with sufficient certainty the complaints or wishes of the person concerned’ as early as the complaint stage. ( 45 )

69.

With regard, more specifically, to Article 85 of the Staff Regulations, its purpose is to protect the financial interests of the European Union: ( 46 ) once it has been established that the conditions governing its application are met, the administration has an obligation to recover in full the sums unduly paid.

70.

That said, in the context of Article 85 of the Staff Regulations, a complaint is aimed not so much at achieving a genuine amicable settlement based on reciprocal concessions between the parties as, rather, at avoiding any unnecessary recourse to litigation.

71.

From that point of view, the complaining official’s intervention will enable the administration to obtain some clarity on whether the objective and subjective preconditions for the application of Article 85 of the Staff Regulations are met and, if necessary, to rectify a previous decision in the light of the new information obtained.

72.

Requiring that an assessment of the legality of the administration’s actions be confined to the matters actually known at the time when the contested decision was adopted could, in certain circumstances, restrict the applicant’s rights of defence.

73.

Specifically, those rights would be unduly restricted if the applicant could not submit to the EU judicature any such matters, even if discovered subsequently, as are relevant to his or her defence, in so far as they have a bearing on the legality of the act adversely affecting him or her.

74.

Generally speaking, in the case of administrative decisions which have already become final, because the time limits for bringing a complaint and taking legal action have expired, the Court of Justice ( 47 ) strikes a balance between that objective and the rights of defence of the applicant by allowing the latter to ask the administration, within a reasonable period, ( 48 ) to re-examine his or her situation in the light of the subsequent emergence of a ‘material’ new fact. ( 49 ) The applicant may challenge before the General Court the legality of the decision adopted following that subsequent examination.

75.

That approach preserves both the decision-making autonomy of the administration and the rights of defence of the applicant, who thus circumvents the final nature of a previous decision.

76.

Unless I am mistaken, the Court of Justice has not yet had occasion to rule on a situation such as that at issue here, in which the material new ( 50 ) fact emerges at a time when the contested decision has not yet become final because the action brought against it before the General Court is still pending (Article 270 TFEU).

77.

In such a situation, a restrictive interpretation of the case-law linking the legality of an act adversely affecting a person to matters not only in existence but also known to the administration:

78.

In the circumstances of the present case, it would be neither reasonable nor proportionate to require AL to lodge a new complaint with the administration.

79.

Requiring AL to request a re-examination by the administration (for the sole purpose of enabling the latter, if necessary, to avoid recourse to litigation in connection with that material new fact) is not justified where judicial proceedings relating to the effect of that same fact on the legality of the contested decision are already under way. ( 51 )

80.

Such a requirement would go beyond what is necessary to attain the objective pursued and preserve the sound administration of justice. It would, moreover, constitute an obstacle to the prompt resolution of the substance of the dispute by the EU judicature.

81.

In my opinion, if it had classified that judgment as a ‘material new’ fact, the General Court would have been in a position to assess it directly and autonomously once it had been duly entered in the case file and subjected to an exchange of arguments between the parties. It would thus have been able to draw its own conclusions on the effect of that fact on the legality of the action taken by the administration on the date in question.

82.

What is more, the approach I am proposing seems to me to be of a piece with the case-law of the Court of Justice on consistency between the complaint and the corresponding legal action.

83.

In principle, the consistency rule, like that relating to the review of legality, restricts the possibility of submitting directly to the court, during the litigation stage of the case, matters and pleas not relied on and discussed in the prior administrative complaint.

84.

The Court of Justice has stated that an administrative complaint, although compulsory, does not have as its purpose ‘to bind strictly and absolutely the contentious stage of the proceedings, if any, provided that the claims submitted at that stage change neither the legal basis nor the [subject matter] of the complaint’. ( 52 )‘The general plan both of the administrative procedure and of the court procedure militates against an interpretation of Article 91(2) which, if taken literally, would merely result in a futile prolongation of the procedure’. ( 53 )

85.

Those considerations can be extrapolated to the limitation established by the case-law on the review of legality. Reducing the discretion available to the General Court should not go so far as to restrict the possibility of taking into account particulars adduced by the applicant which, without altering the subject matter or the scope of the dispute, are linked to pleas already relied on and serve the purpose of substantiating the particulars actually in existence on the date in question.

86.

In the context of Article 85 of the Staff Regulations, the administration does not in fact have any discretion. Its function is confined to verifying the presence of the objective conditions (existence of an undue payment) and subjective conditions (knowledge or obviousness of the irregularity of the payment) warranting the application of that provision.

87.

There is, therefore, no risk that the General Court will substitute its own reasoning (which the case-law on the review of legality seeks to avoid) ( 54 ) if it finds that the objective or subjective conditions recalled above are not met.

88.

In the light of the above considerations, I can confirm that the administration’s lack of prior knowledge of the nullity of the national decisions of 30 January 2013 did not prevent the General Court from reviewing the legality of the contested decision.

89.

The General Court was under an obligation to respect the retroactive effect of the judgment of 16 May 2022 in determining the matters ‘existing’, from a legal point of view, when the contested decision was adopted. By failing to do so, it distorted the facts.

90.

The approach I am proposing is appropriate to the specific circumstances of the present case. In my view, this appeal is not the most opportune moment to settle the apparent contradiction between the judgments of the Court of Justice relating to the limits on the review of legality. ( 55 ) If one line of case-law had to be favoured over others, that set out in the judgment in Galp Energía España should, in my opinion, be applied generally.

91.

It is therefore appropriate to uphold the first part of the second ground of appeal. If the Court of Justice were to find likewise, there would be no need to analyse the remainder of the second ground of appeal. I shall do so in any event, in the alternative.

92.

AL takes issue with the General Court for having stated that the national decisions of 30 January 2013 produced legal effects as from January 2013. In his view, it was already clear when the judgment under appeal was delivered that those decisions were vitiated by absolute nullity and had therefore never produced any legal effects at all.

93.

AL criticises the General Court’s interpretation of the applicable Romanian law, not only as regards the validity of the national decisions of 30 January 2013 but also, indirectly, as regards the temporal effect of the foster care measure. ( 56 )

94.

Although AL does not claim, or at least not expressly, that there has been a distortion of Romanian law in this part of the second ground of appeal, it is my view that such a criticism is implicit and follows logically from the first part of his ground of appeal.

95.

There is a close link between the ‘fact’ which AL claims to have been distorted (the existence of the judgment of 16 May 2022) and the applicable ‘law’ (the legal consequences of that judgment for the national decisions of 30 January 2013). ( 57 )

96.

It would be excessively formalistic to dismiss the admissibility of the second part of the second ground of appeal solely because AL did not use the term ‘distortion’ when formulating it. In order to assess whether any such distortion has taken place with respect to Romanian law, it is sufficient to verify whether the conditions already described in the foregoing points of this Opinion are met. ( 58 )

97.

According to the Court of Justice, a distortion of the law occurs if ‘the General Court arrived at findings that were manifestly at odds with the content of the provisions of that legislation or … attached to them a significance they manifestly did not have’. ( 59 )

98.

In particular, in the context of an appeal, ‘the Court of Justice has jurisdiction to determine, first of all, whether the General Court, on the basis of the documents and other evidence submitted to it, distorted the wording of the national provisions at issue or of the national case-law relating to them, or of the academic writings concerning them; second, whether the General Court, as regards those particulars, made findings that were manifestly inconsistent with their content; and, lastly, whether the General Court, in examining all the particulars, attributed to one of them, in order to establish the content of the national law at issue, a significance which is not appropriate in the light of the other particulars, where that is manifestly apparent from the documentation in the case file’. ( 60 )

99.

The General Court is therefore under an obligation to ‘examin[e] all the particulars’, properly entered in the case file, with a view to attributing to each one of them the significance appropriate to it ‘in the light of the other particulars’.

100.

In the present case, the General Court had a duty to determine, ‘on the basis of the documents and other evidence submitted to it’, the exact temporal scope of the foster care measure. In order to do so correctly, it was necessary to assess all of the Romanian decisions delivered in that regard, including the judgment of 16 May 2022, and the relationship between them.

101.

For the reasons which I have already set out, in accepting that the national decisions of 30 January 2013 had produced legal effects as from January 2013, the General Court conferred on them a scope which was not appropriate to them under the legal system from which they originated.

102.

That led, in consequence, to a manifestly erroneous assessment, from the point of view of Romanian law, of the temporal scope of the foster care measure. That assessment had a direct and erroneous effect on the application of Article 85 of the Staff Regulations. ( 61 )

103.

In my view, therefore, the second part of the second ground of appeal should also be upheld.

104.

In the light of my proposed approach to the first and second parts of the second ground of appeal, there would be no need to take a view on the third part. I shall do so, however, in the event that the Court takes a different view.

105.

In this part of the second ground of appeal, AL reproduces almost word for word the pleas relied on before the General Court, ( 62 ) without including any line of argument aimed specifically at identifying the error of law in the judgment under appeal.

106.

In such circumstances, since the third part of the second ground of appeal does not satisfy the requirements of the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union or those of Article 168(1)(d) and Article 169 of the Rules of Procedure of the Court of Justice, it must be deemed inadmissible.

107.

In short, I propose that the Court of Justice uphold the first and second parts of the second ground of appeal and set aside the corresponding paragraphs of the judgment of the General Court.

108.

The first paragraph of Article 61 of the Statute of the Court of Justice of the European Union provides that, if the judgment of the General Court is set aside, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

109.

Given the limited nature of my analysis of the appeal, which is confined to the second ground thereof, I am not in a position to suggest that the Court of Justice give final judgment in the dispute.

110.

I could do so, however, if this were the only ground of appeal concerned, rather than suggesting that the case be referred back to the General Court for judgment, given that the foregoing considerations leave no other conclusion than that the contested decision should be annulled.

111.

For the same reasons, it is not appropriate for me to take a view on the award of costs.

112.

In the light of all of the foregoing, I propose that the Court of Justice uphold the second ground of the appeal lodged against the judgment of the General Court of 10 April 2024, AL v Commission (T‑50/22, EU:T:2024:220), and set aside the part of that judgment to which the second ground of appeal relates.