“The obligation to repay benefits unduly paid shall be waived if, between the issue of an act for the payment of benefits in compliance with a court decision and the issue of a subsequent act for the recovery of such benefits following a court decision which irrevocably reverses the obligation of the insurance institution to pay such benefits, a very long period of time has elapsed which, in view of the specific circumstances of each case, exceeds a reasonable period of time, provided that, in addition, the insured person's obligation to repay the benefits has not been exceeded, and if the insured person's obligation to repay the benefits has not been exceeded.a would seriously affect its financial situation" ruled the Trial Administrative Court of Appeal of Thessaloniki with its decision No. A1993/2020, on a case successfully handled by our office, invoking the principle of good administration - a general principle applicable in social security law.
In particular, the Court taking into account that the repayment of the unduly paid pension benefits was ordered by the decision 11947/31-5-2011 of the Director of the Regional Branch of IKA-ETAM in compliance with a court decision, and that between the granting of the benefits (in 2001, going back to the year 1996) and their recovery (in the year 2011), with interest to 5%, a period of approximately ten years elapsed (and approximately fifteen years from the year in which the payment of the pension was reversed), he considered that this period of time exceeded, in view of the entire procedural course of the case, a reasonable one. Furthermore, having taken account of the fact that it is clear from the evidence submitted that the pension transferred to the applicant on the death of her husband is her sole income, which covers her basic needs for survival, and that she has no property other than the usufruct of a single-floor house, where she resides, a maisonette and a field, which came to her by will from her father, the ownership of which has been transferred to her son since 2005, the Court held that, in view of the very high amount of pensions, which by 30-9-2011 had reached 130.506.62 for capital and EUR 51,658.61 for interest, the repayment of the pension amounts that her husband had unduly received from the IKA, and in fact with interest, would seriously upset her financial situation.
The following is the text of No. Α1993/2020 Decision of the Thessaloniki Court of Appeal
Decision number: Α1993/2020
THE
ADMINISTRATIVE COURT OF APPEAL OF THESSALONIKI
SECTION G
TRIMELES
(Substantive administrative litigation procedure )
It met in open court on 16 December 2019, with their judges: Vasiliki Daga, President, in the absence of the President and in the absence of the other Presidents and of the other senior appellate judges, Anastasios Hasiakos, and Ioanna Grigoropoulou - Rapporteur, Appellants D.D., and the Registrar, Charitomeni Kalogeropoulou,
to hear the appeal dated 25-2-2019 (ref. no. EF .../2019),
t h e n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e r n o t h e rE.T.A.M.), established in Athens and legally represented by the lawyer ..........,
c o m p l e t i o n s ......... widow ..........., represented by her lawyer Thomas Kalokiris,
and against the 7237/2018 final decision of the Trial Administrative Court of First Instance of Thessaloniki.
At the hearing, the parties requested what is stated in the minutes. After the hearing the Court met in conference and, having,
He studied the file and thought according to the law
1. Because, with the appeal in question, for which the payment of a fee is not required (Art. 4 of the law. 2579/1998 -31 A, which was maintained in force by Article 285 para. 2(g) of the Code of Administrative Law - Law No. 2717/1999-97 A'), the annulment of the final decision 7237/2018 of the Trial Administrative Court of First Instance of Thessaloniki is admissibly requested. The appeal of 6-9-2011 was upheld in so far as it was brought by the appellant against the presumed implied rejection of its objection to the decision 11947/31-5-2011 of the Director of the Regional Branch of the IKA EBRD of Thessaloniki, in so far as it ordered the repayment, in the form of an order to 5%, of the additional pension sums unduly paid from 1-5-1996 to her deceased husband ...... This amount amounted to 130 until 30-9-2011.506,82 for capital and EUR 51 618,81 for interest, totalling EUR 182 165,23.
2. Because, in Article 40 para. 4 of Law 1846/1951 states that: 'All cash benefits unduly paid by the IKA as well as the value of such benefits in kind, the valuation of which shall be determined by the Regulation, shall be returned to the 5% with immediate effect and shall be recovered in accordance with the provisions on the compulsory collection of the Foundation's overdue contributions. ...". The above provision provides for the repayment to the IKA (-E.T.A.M.), with interest, of any cash benefit unduly paid by the Foundation to an insured person or pensioner. Moreover, it is contrary to the principle of sound administration - a general principle applicable to social security law and applicable in parallel to the abovementioned provision of Article 40(1)(b) of the Law on Social Security. 4 of Law No 1846/1951 - to seek periodic insurance benefits from the social security institution after a reasonable period of time has elapsed since their receipt, if those benefits have been paid unduly by the social security institution but the insured person has received them in good faith. The recovery of the above benefits shall be authorised only if it is established that the person who has received the sums claimed was guilty of fraud against the institution at the time of their recovery, and specific reasons must be given for the finding of fraud. On the contrary, within the meaning of the same provision, the recovery of those sums by the IKA (-E.T.A.M.) is required if the period between the recovery and the recovery is short, unless the person who has unlawfully, but in good faith, collected the insurance benefits claims and proves that their return to the IKA (-E.T.A.M.) would have resulted in a serious deterioration in his financial situation. However, where the application for periodic social security benefits is based on a judicial decision which, following an appeal, overturns a previous judicial decision in compliance with which the above benefits were paid, the general principle of social security referred to above does not apply, but the rule laid down in Article 40(1)(b) of Regulation No 1408/71 applies. 4 of Law 1846/1951, according to which any benefit paid unduly by the I.K.A. shall be returned to it with interest (CoE 1138/2017, 3053, 3333/2014, 3415/2013, 1760, 3332/2012, 1618/2011, 742/2010, 166, 167/2009, 3312/2008, 1619, 1620/2006 7mol.). Nevertheless, the rule laid down in this provision does not apply in the very exceptional case where, between the issue of an act for the payment of benefits in compliance with a court decision and the issue of a new act for the payment of benefits following a court decision which irrevocably reverses the obligation of the insurance institution to pay such benefits, a very long period of time has elapsed which, in view of the specific circumstances of each case, exceeds a reasonable period of time, provided that, in addition, the obligation of the insured person to repay the benefits has not been exceeded.
3. Because, in the present case, a reassessment of the evidence in the file reveals the following: ..... was insured with the former Insurance Fund for Printers and Graphic Arts Employees (TAT and MGT) from October 1972 to 26-8-1992 and from 27-8-1992 (the date on which the main pension branch of the above Fund was merged into IKA) to 18-4-1996 with IKA, where he had also been insured from September 1958 to September 1972. Having accumulated a total of 9 252 days of insurance, he submitted to IKA an application for the award of a main old-age pension, under No 147936/22-4-1996, opting to retire under the provisions of the already merged Fund (TAT and MGT). By decision No 23124/19-12-1996 of the Director of the Regional Branch of the IKA Thessaloniki, he was awarded a main old-age pension from 1-5-1996, in the amount of 103 233 drachmas, pursuant to the provisions of article 2 of Law No. 1276/1982, inasmuch as, on the basis of the above provisions, his pensionable salary was fixed at 114,738 dirhams and his insurance rate at 75.52 %. The action brought by ...... against the 65/Con. 9/22-1-1998 decision of the B' Local Administrative Committee of the above IKA Branch, which rejected his objection to the abovementioned decision of the Director, was upheld by the 2797/2000 decision of the Administrative Court of First Instance of Thessaloniki. In that decision it was held that his pensionable salary was not lawfully determined on the basis of the restrictions laid down in Article 2(2)(a) of Regulation No 1/2003. 2, second subparagraph, of Law No. 1276/1982, which is contrary to the principle of equality and was therefore not applicable, and consequently that the calculation of the pension should have been made, as from 11-5-1996, on the basis of the total amount of his average earnings during the last three years of his insurance, for which the corresponding contributions had been paid, that is to say on the basis of the amount of 348,250 Dirhams, which is his pensionable salary. In compliance with that decision, the Director of the IKA issued decision 1545/24-1-2001, by which she revoked the previous decision 23124/19-12-1996 and awarded ......... an old-age pension from 1-5-1996 in the amount of 273,234 dirhams, subject to repayment, with interest, of the additional pension sums paid in vain, in the event that the appeal lodged by the IKA against the abovementioned judicial decision of 23-11-2000 was upheld. That appeal by IKA was dismissed by decision 57/2004 of the Administrative Court of Appeal of Thessaloniki. In particular, the court of appeal held that, since the pension determined in accordance with the provisions of Article 2 of Law No 1276/1982 is paid exclusively from deductions from the earnings of those insured by the above fund and not from social resources, it is purely contributory in nature and, therefore, the provision of para. 2 of Article 2 of Law No 1276/1982 is invalid, since it introduces a constitutionally impermissible derogation (Articles 4 and 22(4) of the Constitution) from the rule that the amount of the pension is proportional to the contributions paid by the insured person. The appeal lodged by IKA against that decision on 1-11-2004 was upheld by decision 341/2008 of the S.T.E. In that decision it was held that the existence of full reciprocity between contributions and benefits is not a constitutional rule and the case was referred back to the Administrative Court of Appeal for reconsideration. The Administrative Court of Appeal of Thessaloniki, in its decision of 133/24-1-2011, held that the pensionable salary of ...... was correctly calculated in application of the provision of Article 2 [paragraph 2, second subparagraph] of Law No. 1276/1982, which is not contrary to the principle of equality, since the common legislature is not prevented from changing the pension scheme for categories of insured persons, in particular the amount of the insurance benefits, even with a reduction for the following year, a provision which is not invalid, as was wrongly held by the court of first instance. It then allowed IKA's appeal against the 2797/2000 judgment of the Administrative Court of First Instance of Thessaloniki, which it set aside, and, ruling on the appeal brought by ..... against the decision of the B' TDE of the Regional Branch of IKA Thessaloniki (65/Con.9/22.1.1998), dismissed it. In compliance with that decision, the Director of the above Regional Branch, by his decision 11947/31-5-2011, inter alia, revoked the decision 1545/21-1-2001, which had been issued in compliance with the decision 2797/2000 of the Administrative Court of First Instance of Thessaloniki on the award of a pension to .... in the amount of 273,234 USD, reinstating the decision 23124/19-12-1996, by which he had been awarded a pension in the amount of 103,233 dirhams and ordering the repayment of the additional pension amounts unduly paid from 1-5-1996, with interest to 5%. Against the part of the decision 11947/31-5-2011 of the Director of the aforesaid Regional Branch, wherein the already appellant and the ....... ....., widow and children of ......, who died on 11-5-2011, lodged an objection with the T.D.E. on 6-9-2011 and, subsequently, against the implied rejection of the complaint, the appeal. In the appeal, they claimed that it was contrary to the principles of sound administration to seek the additional pension amounts unduly paid by their husband and father from 1-5-1996, by the decision 11947/31-5-2011 of the Director of the above Regional Branch of IKA-ETAM, that is, after 15 years, since he had collected the said amounts in good faith. Furthermore, the respondent claimed that the repayment of the amounts unduly paid, which amount in total to EUR 179 990, would have unforeseeable financial consequences for her livelihood. In support of her claims, she submitted to the Court of First Instance, inter alia: (a) the decisions 12921 and 12922/7-6-2011 of the Director of the same Regional Branch, by which the respondent was awarded the main and supplementary pensions due to the death of her husband from 1-6-2011, amounting to EUR 438.16 and EUR 239.66 respectively, (b) the ..../9-9-2005 deed of the notary of Thessaloniki Aikaterini Exadaktylou, by which the respondent accepted the inheritance of her father, which was transferred to her by will, consisting of 1) a field at the location "...." of the land area of the municipal district ....u, with an area of 9.5 acres, and 2) 300 square meters of land located in the same aforementioned land area, in which she declared that she built a ground floor house of 93.85 square meters and a maisonette of 78.80 square meters and established vertical and horizontal ownership of the aforementioned area of 300 square meters. c) the .../9-9-2005 deed of the notary of Thessaloniki Aikaterini Exadaktylou, by which the respondent transferred by parental provision to her daughter ...... the full ownership of 1/2 of the above land parcel, worth 4.318,04 euros, d) the 25862/9-9-2005 deed of the same notary public on the parental provision of the respondent to her son ..... of the full ownership of the 1/2 undivided share of the parcel of land inherited from her father and the full ownership of the ground floor house and the maisonette on the aforementioned land area of 300 m², e) income tax returns of the deceased for the financial years 2009 and 2010, which show that her husband declared an annual net income of EUR 17 441.59 and EUR 17 197.91 from main pensions, respectively, and EUR 4 793.06 and EUR 4 793.06 from supplementary pensions.725.95 euros, respectively, and had no other income; f) the 2-9-2011 certificate of the Thessaloniki Transcript Clerk that until 29-8-2011 ...... did not have a share in his name at the said Mortgage Registry; g) income tax returns for the financial years 2012, 2013, 2014 and tax years 2014, 2015 and 2016, which show that the appellant declared only income from main pensions (3.EUR 563.42 for fiscal year 2012, EUR 5,839.56 for fiscal year 2013, EUR 5,0417.56 for fiscal year 2014, EUR 4,994.99 for fiscal year 2015 and 5.073.89 for 2016) and supplementary pensions (EUR 1,959.36 for 2012, EUR 2,808.74 for 2013, EUR 2,931.27 for fiscal year 2013 and EUR 2,339.56 for fiscal year 2014, EUR 2,206.94 for 2015 and EUR 2,172.78 for 2016) pensions, as well as from ESAS in fiscal year 2014 and fiscal years 2014, 2015 and 2016, amounting to EUR 2,760.00, EUR 800.00, EUR 2,320.00 and EUR 1.150 euros, respectively, h) a certificate of declared property status as of 20-11-2017, which shows that he has a small ownership of a house of 93.85 sq.m. at ...... street, a maisonette of 78.80 sq.m. at the same street, and 4.54% co-ownership of a plot of land 1.113 sq.m. in the above street, i) monthly pension statements from January to June 2015, which show that the total amount of the pension (main and subsidiary) he received from IKA-ETAM amounted to 560.23 euros. By the judgment under appeal, it was held, first, that ......, in view of the fact that they had made an absolute disclaimer of the estate of their deceased father ......, did not have a direct and individual legal interest at the time when the appeal was brought, and the appeal was dismissed in so far as it was brought by them. Further, the Court of First Instance, taking into account that the repayment of the undue payments made to ...... pension benefits was ordered by decision 11947/31-5-2011 of the Director of the Regional Branch of the IKA-ETAM in compliance with a court order, and that between the granting of the benefits (in the year 2001, going back to the year 1996) and their recovery (in the year 2011), the benefits were paid to 5%, a period of approximately ten years elapsed (and approximately fifteen years from the year in which the payment of the pension was reversed), it considered that this period exceeded, in view of the whole procedural course of the case, a reasonable period. Furthermore, having taken account of the fact that the evidence submitted shows that the pension transferred to the appellant on the death of her husband is her sole income, which covers her basic survival needs, and that she has no other property, except the usufruct of a house of one storey, where she resides, a maisonette and a field, which came to her by will from her father, the ownership of which has been transferred to her son since 2005, the Court held that, in view of the very high amount of pensions, which by 30-9-2011 had reached 130.506.62 for capital and EUR 51,658.61 for interest, the repayment of the pension amounts that her husband had unduly received from the IKA, and in fact with interest, would seriously upset her financial situation. It therefore upheld the appeal in that part and annulled the implied rejection of the objection by the CEDAW.
4. Because this judgment of the appellant is challenged by the appellee in the present appeal. In that regard, it submits that the fraudulent conduct of both the deceased and the respondent is undisputed, since for a period of 15 years, i.e. from 1996 to 2011, the amount of the pension payable by the deceased was in dispute in court. Finally, the applicant submits that from the adoption of the 341/2008 decision of the S.T.E. until the adoption of the 11947/31-5-2011 decision of the Director of the IKA, by which, in compliance with the 133/2011 decision of the D. Appellant. Thessaloniki, the decision of the Director of IKA 23124/19-12-1996 was reinstated, a period of approximately three years elapsed, which is reasonable.
5. Because, in accordance with the above provisions and their interpretation, in view of the fact that between the 1545/24-1-2001 decision of the Director of IKA, which was issued in compliance with the 2797/2000 decision of the Administrative Court of First Instance of Thessaloniki, and the decision of the Director of IKA issued in compliance with the 133/2011 decision of the Administrative Court of Appeal of Thessaloniki 11947/31-5-2011, which revoked the aforementioned 1545/24-1-2001 decision of the Director of IKA, reinstated the 23124/1996 similar decision, and ordered the repayment of the undue pension amounts paid from 1-5-1996, with interest to 5%, a period of more than ten years has elapsed, which, in view of the entire procedural course of the case, exceeds the reasonable (cf. Moreover, in the present case, in view of the amount of the amount charged, which until 30-9-2011 amounted to EUR 130 506,62 for capital and 51.658.61 for interest, and that, as is clear from the evidence submitted by the respondent, the only income that covers her basic survival needs is the old-age pension transferred to her following the death of her husband, in the amount of EUR 438.16 and EUR 239.66 for the main and supplementary pension, respectively, while she has no other property, except for the usufruct of a ground floor house of 93.85 m², where she lives, and the usufruct of a house of 78.80 m² on an undivided plot of land, the obligation on the defendant to repay those benefits, and to do so with interest, would seriously affect her financial situation. Therefore, in the present case, exceptionally, in view of the circumstances of the case, the rule laid down in Article 40(1)(b) of the Law of the European Union does not apply. 4 of Law No 1846/1951, according to which any benefit unduly paid by the IKA is to be refunded to the IKA, as was correctly held in the judgment under appeal, and the arguments to the contrary put forward in the appeal must be rejected as unfounded.
6. Because, in consequence, the appeal in this case must be dismissed. Finally, in the light of the circumstances, order that the appellant institution be ordered to pay the costs (Article 275(1) of the Rules of Procedure).
BECAUSE OF THIS
He rejects the appeal.
order the applicant institution to pay the costs.
It was judged and decided on 22-6-2020 in Thessaloniki, with the composition indicated at the beginning of this document, but signed by the senior judge of the composition, Anastasios Hasiakos, Ephetes D.D., due to the retirement of the presiding judge, Vasiliki Daga, Ephetes D.D.
Thomas Kalokiris
Attorney at law in person
Min. Doctor of Law, AUTH
English 
Greek 
French 
Chinese 
German