CELEX: 61983CJ0264(01)
Officials
Interest on salary arrears

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 28 NOVEMBER 1983 , R . DELHEZ AND OTHER OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , GROUPED ACCORDING TO THEIR PLACE OF EMPLOYMENT , NAMELY BRUSSELS , GEEL , PETTEN , LUXEMBOURG AND ISPRA , BROUGHT AN ACTION FOR THE ANNULMENT OF THEIR SALARY SLIPS FOR DECEMBER 1982 IN RESPECT OF SALARY ARREARS PAID PURSUANT TO COUNCIL REGULATION ( ECSC , EEC , EURATOM ) NO 3139/82 OF 22 NOVEMBER 1982 ( OFFICIAL JOURNAL 1982 , L 331 , P . 1 ) AND , IN SO FAR AS IS NECESSARY , FOR THE ANNULMENT OF THE COMMISSION ' S EXPRESS DECISION OF 29 JUNE 1983 REJECTING THE COMPLAINTS LODGED UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . THE APPLICANTS SEEK THE ANNULMENT OF THOSE MEASURES IN SO FAR AS THE SALARY ARREARS FOR THE PERIOD FROM 1 JULY 1980 TO 30 NOVEMBER 1982 WERE NOT INCREASED BY DEFAULT INTEREST CALCULATED ACCORDING TO THE LAWS IN FORCE IN THE VARIOUS PLACES OF EMPLOYMENT OR BY ANY OTHER UNIFORM METHOD ACCEPTED BY THE COURT . THE APPLICANTS ALSO SEEK AN ORDER REQUIRING THE COMMISSION TO PAY THEM COMPENSATORY INTEREST ON ACCOUNT OF THE LOSS OF PURCHASING POWER IN THE INTERVENING PERIOD .
2 ON 20 JANUARY 1981 THE COUNCIL ADOPTED , PURSUANT TO ARTICLE 65 OF THE STAFF REGULATIONS , REGULATION ( EURATOM , ECSC , EEC ) NO 187/81 ADJUSTING THE SALARIES AND PENSIONS OF OFFICIALS AND OTHER SERVANTS OF THE EUROPEAN COMMUNITIES AND THE WEIGHTINGS APPLYING THERETO ( OFFICIAL JOURNAL 1981 , L 21 , P . 18 ), DEPARTING FROM THE CORRESPONDING PROPOSAL SUBMITTED BY THE COMMISSION ON 9 DECEMBER 1980 .
3 IN PURSUANCE OF THAT REGULATION , ON 10 FEBRUARY 1981 THE COUNCIL ADOPTED REGULATION ( EURATOM , ECSC , EEC ) NO 397/81 FIXING THE TABLES OF SALARIES AND OTHER COMPONENTS OF REMUNERATION ( OFFICIAL JOURNAL 1981 , L 46 , P . 1 ).
4 ON 16 MARCH 1981 THE COMMISSION BROUGHT AN ACTION REQUESTING THE COURT TO DECLARE VOID REGULATION NO 187/81 AND ARTICLES 1 ( A ), 2 ( A ) AND ( B ) AND THE FIRST PARAGRAPH OF ARTICLE 11 OF REGULATION NO 397/81 .
5 IN ITS JUDGMENT OF 6 OCTOBER 1982 IN CASE 59/81 ( COMMISSION V COUNCIL ( 1982 ) ECR 3329 ), THE COURT DECLARED VOID REGULATION NO 187/81 AND THE AFORESAID PROVISIONS OF REGULATION NO 397/81 .
6 IN ORDER TO COMPLY WITH THAT JUDGMENT , THE COUNCIL ADOPTED REGULATION NO 3139/82 OF 22 NOVEMBER 1982 , ACTING ON A PROPOSAL FROM THE COMMISSION DATED 29 OCTOBER 1982 .
7 THE COMMISSION PROCEEDED TO CALCULATE AND PAY THE SALARY ARREARS FOR THE PERIOD FROM 1 JULY 1980 TO 30 NOVEMBER 1982 PURSUANT TO THAT REGULATION .
8 BETWEEN DECEMBER 1982 AND THE MIDDLE OF MARCH 1983 , EACH OF THE APPLICANTS LODGED A STANDARD-FORM COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS CONTENDING THAT ACCOUNT HAD TO BE TAKEN OF THE LOSS OF PURCHASING POWER DURING THE PERIOD IN RESPECT OF WHICH THE ARREARS WERE PAID PURSUANT TO COUNCIL REGULATION NO 3139/82 AND CLAIMING DEFAULT INTEREST WHICH , IN THEIR VIEW , SHOULD HAVE BEEN PAID TOGETHER WITH THOSE ARREARS .
9 ON 29 JUNE 1983 THE COMMISSION EXPRESSLY REJECTED THOSE COMPLAINTS , WHEREUPON THE APPLICANTS COMMENCED THESE PROCEEDINGS .
10 BY JUDGMENT OF 4 JULY 1985 THE THIRD CHAMBER OF THE COURT DECLARED THE APPLICATION INADMISSIBLE AS REGARDS THOSE APPLICANTS WHO HAD SUBMITTED IT OUT OF TIME , AND AS REGARDS ALL THE APPLICANTS IN SO FAR AS IT CONTAINED A CLAIM FOR THE PAYMENT OF COMPENSATORY INTEREST , AND REFERRED THE OTHER CLAIMS PUT FORWARD BY THE APPLICANTS TO THE FULL COURT FOR CONSIDERATION .
11 ACCORDING TO THE APPLICANTS , THERE WAS AN EXCESSIVE DELAY IN THE ADOPTION OF REGULATION NO 3139/82 ADJUSTING , WITH EFFECT FROM 1 JUNE 1980 , THE WEIGHTINGS APPLICABLE TO THE REMUNERATION OF OFFICIALS . IN VIEW OF THAT DELAY , THE REGULATION SHOULD HAVE MADE PROVISION FOR PAYING DEFAULT INTEREST ON THE SALARY ARREARS . THEY MAINTAIN THAT , IN THE ABSENCE OF SUCH A PROVISION , REGULATION NO 3139/82 IS ILLEGAL , WITH THE RESULT THAT THE CONTESTED SALARY STATEMENTS ARE ILLEGAL IN SO FAR AS THEY DO NOT INCLUDE DEFAULT INTEREST .
12 IN SUPPORT OF THEIR VIEW THAT , WHERE THERE IS A DELAY IN THE PAYMENT OF SALARY ARREARS , DEFAULT INTEREST MUST BE PAID THEREON , THE APPLICANTS REFER IN THE FIRST PLACE TO ARTICLE 62 OF THE STAFF REGULATIONS , WHICH PROVIDES THAT AN OFFICIAL WHO IS DULY APPOINTED IS ENTITLED TO THE REMUNERATION CARRIED BY HIS GRADE AND STEP AND THAT HE MAY NOT WAIVE HIS ENTITLEMENT TO REMUNERATION , AND TO THE FIRST PARAGRAPH OF ARTICLE 16 OF ANNEX VII TO THE STAFF REGULATIONS , WHICH PROVIDES THAT PAYMENT OF REMUNERATION IS TO BE MADE ON THE 15 DAY OF EACH MONTH FOR THE MONTH THEN CURRENT . IN THEIR VIEW , THE EFFECT OF THOSE PROVISIONS TAKEN TOGETHER IS THAT SINCE THE COUNCIL RECOGNIZED IN REGULATION NO 3139/82 THAT CERTAIN SUMS SHOULD HAVE BEEN PAID AS FROM JANUARY 1981 , IT SHOULD HAVE MADE PROVISION FOR THE PAYMENT OF DEFAULT INTEREST .
13 THE APPLICANTS ALSO ARGUE THAT THE FAILURE TO PROVIDE FOR THE PAYMENT OF DEFAULT INTEREST IS CONTRARY TO ARTICLE 65 ( 1 ) OF THE STAFF REGULATIONS , WHICH ESTABLISHES A PROCEDURE FOR THE ANNUAL REVIEW OF REMUNERATION OF OFFICIALS AND OTHER SERVANTS OF THE COMMUNITIES IN ACCORDANCE WITH THE CRITERIA APPLIED IN THE METHODS APPROVED BY THE COUNCIL , ACTING ON A PROPOSAL FROM THE COMMISSION . THEY MAINTAIN THAT THE COURT HAS POINTED OUT ON SEVERAL OCCASIONS THAT THOSE CRITERIA ARE BINDING ONCE THEY HAVE BEEN ADOPTED . IF THE APPLICATION OF THOSE CRITERIA YIELDS A POSITIVE PERCENTAGE , THE COUNCIL IS OBLIGED TO TAKE IT INTO ACCOUNT FOR THE PURPOSES OF ADJUSTING AND , IN PRINCIPLE , INCREASING REMUNERATION . IT FOLLOWS , ACCORDING TO THE APPLICANTS , THAT WHERE THE DELAY IN THE COMPLETION OF THAT PROCEDURE IS EXCESSIVE IN THE CIRCUMSTANCES OF THE CASE , THE REGULATION ADJUSTING REMUNERATION SHOULD PROVIDE THAT DEFAULT INTEREST IS PAYABLE ON THE AMOUNT OF THE SALARY ARREARS .
14 THE APPLICANTS CONTEND THAT THE FAILURE TO PROVIDE FOR THE PAYMENT OF DEFAULT INTEREST IS ALSO CONTRARY TO THE PRINCIPLE OF EQUAL TREATMENT , WHICH , ACCORDING TO THE CASE-LAW OF THE COURT , SHOULD GOVERN THE APPLICATION OF BOTH ARTICLE 64 OF THE STAFF REGULATIONS , WHICH INTRODUCES WEIGHTINGS , AND ARTICLE 65 ( 2 ), WHICH PROVIDES FOR THE ADJUSTMENT OF THOSE WEIGHTINGS IN THE EVENT OF A SUBSTANTIAL CHANGE IN THE COST OF LIVING , THEREBY GUARANTEEING TO ALL OFFICIALS AND OTHER SERVANTS A SALARY WHOSE PURCHASING POWER REMAINS CONSTANT AT ALL TIMES AND REGARDLESS OF THEIR PLACE OF EMPLOYMENT . WHERE THERE IS AN EXCESSIVE DELAY IN THE PAYMENT OF SALARY ARREARS , AS IN THIS CASE , THAT OBJECTIVE CAN BE ATTAINED ONLY BY MEANS OF THE PAYMENT OF DEFAULT INTEREST .
15 THE COMMISSION MAINTAINS THAT ARTICLE 62 OF THE STAFF REGULATIONS , WHICH MERELY LAYS DOWN IN GENERAL TERMS THAT OFFICIALS ARE ENTITLED TO REMUNERATION , IS NOT CONCERNED WITH THE AMOUNT THEREOF , WHICH IS GOVERNED BY OTHER PROVISIONS OF THE STAFF REGULATIONS . MOREOVER , ARTICLE 65 ( 1 ) OF THE STAFF REGULATIONS LEAVES THE CHOICE OF THE MOST APPROPRIATE MANNER AND FORM IN WHICH TO IMPLEMENT A POLICY ON REMUNERATION TO THE COUNCIL . THAT PROVISION DOES NOT ESTABLISH A SYSTEM OF AUTOMATIC INDEXING BUT MERELY LAYS DOWN A PROCEDURE FOR ADJUSTMENT IN WHICH THE COUNCIL HAS A BROAD DISCRETION . WITH REGARD TO ARTICLE 65 ( 2 ) OF THE STAFF REGULATIONS , THE COMMISSION POINTS OUT THAT IT APPLIES ONLY IN THE EVENT OF A SERIOUS DISTORTION ( ' A SUBSTANTIAL CHANGE IN THE COST OF LIVING ' ) AND IT LEAVES IT TO THE COUNCIL TO DECIDE WHETHER OR NOT TO GIVE RETROACTIVE EFFECT TO THE MEASURES ADJUSTING THE WEIGHTINGS .
16 IT SHOULD BE NOTED THAT ARTICLE 62 OF THE STAFF REGULATIONS AND ARTICLE 16 OF ANNEX VII TO THE STAFF REGULATIONS , WHICH ARE RELIED UPON BY THE APPLICANTS , DETERMINE ONLY THE TIME OF PAYMENT OF THE SALARY DUE PURSUANT TO THE RULES IN FORCE . THEY DO NOT PROVIDE FOR THE PAYMENT OF INTEREST IN THE EVENT OF DELAY IN THE ENTRY INTO FORCE OF REGULATIONS FIXING THE REMUNERATION OF OFFICIALS AND OTHER SERVANTS RETROACTIVELY . ARTICLE 65 ( 1 ) OF THE STAFF REGULATIONS MERELY ESTABLISHES A PROCEDURE FOR THE ANNUAL REVIEW OF OFFICIALS '  REMUNERATION WHICH STARTS IN SEPTEMBER , NORMALLY LASTS A FEW MONTHS AND LEADS TO THE ADOPTION OF A REGULATION WHICH NECESSARILY HAS RETROACTIVE EFFECT FROM 1 JULY OF THE PRECEDING YEAR . NOTWITHSTANDING THE FACT THAT THOSE REGULATIONS NECESSARILY HAVE RETROACTIVE EFFECT , THAT ARTICLE DOES NOT REQUIRE PROVISION TO BE MADE IN THAT REGULATION FOR THE PAYMENT OF DEFAULT INTEREST EITHER WHERE THE PROCEDURE RUNS ITS NORMAL COURSE AND CULMINATES IN THE ADOPTION OF THE REGULATION OR WHERE THERE IS A DELAY IN THE PROCEDURE . SIMILARLY , EVEN VIEWED IN THE LIGHT OF THE PRINCIPLE OF EQUAL TREATMENT , ARTICLE 65 ( 2 ) DOES NOT IMPOSE AN OBLIGATION TO PROVIDE FOR THE PAYMENT OF DEFAULT INTEREST IN THE EVENT OF THE RETROACTIVE ADJUSTMENT OF THE WEIGHTINGS , BUT MERELY PROVIDES FOR THE ADJUSTMENT OF THE WEIGHTINGS INTRODUCED BY ARTICLE 64 IN THE EVENT OF A SUBSTANTIAL CHANGE IN THE COST OF LIVING .
17 IT FOLLOWS THAT THE SUBMISSIONS ALLEGING AN INFRINGEMENT OF ARTICLES 62 , 64 AND 65 OF THE STAFF REGULATIONS MUST BE REJECTED AS UNFOUNDED .
18 NEXT , THE APPLICANTS MAINTAIN THAT THE COMMISSION SHOULD HAVE PAID THEM DEFAULT INTEREST PURSUANT TO A GENERAL PRINCIPLE , WHICH EXISTS IN THE LAWS OF THE MEMBER STATES AND HAS BEEN RECOGNIZED IN DECISION OF THE COURT , TO THE EFFECT THAT ANY DELAY IN THE DISCHARGE OF A PECUNIARY OBLIGATION GIVES RISE TO AN OBLIGATION TO PAY DEFAULT INTEREST . THEY MAINTAIN THAT , EVEN IF THE REGULATION IS ADOPTED WITHIN THE NORMAL PERIOD PRESCRIBED BY ARTICLE 65 ( 1 ) OF THE STAFF REGULATIONS AND DOES NOT HAVE TO PROVIDE FOR THE PAYMENT OF DEFAULT INTEREST , THE COMMISSION IS REQUIRED TO PAY SUCH INTEREST WHERE THERE HAS BEEN AN EXCESSIVE AND ABNORMAL DELAY IN THE ADOPTION OF THAT REGULATION . IN THEIR VIEW , THAT IS THE CASE HERE SINCE THERE WAS A DELAY OF ALMOST TWO YEARS IN THE ADOPTION OF REGULATION NO 3139/82 .
19 THE COMMISSION DOES NOT DENY THE EXISTENCE OF A PRINCIPLE CONCERNING THE PAYMENT OF DEFAULT INTEREST BUT MAINTAINS THAT , EXCEPT IN CASES WHERE INTEREST STARTS TO ACCRUE AUTOMATICALLY BY VIRTUE OF A LEGAL PROVISION , THE POSSIBILITY OF CLAIMING DEFAULT INTEREST IS CONDITIONAL ON FORMAL NOTICE HAVING BEEN GIVEN BEFOREHAND . IN THIS CASE , THAT CONDITION HAS NOT BEEN FULFILLED SINCE THE APPLICANTS DID NOT SUBMIT A CLAIM FOR SUCH INTEREST BEFORE THEY WERE PAID THE PRINCIPAL SUM OWED TO THEM , THAT IS TO SAY THE SALARY ARREARS , BY THE COMMISSION .
20 IT MUST BE BORNE IN MIND THAT IN ANY EVENT AN OBLIGATION TO PAY DEFAULT INTEREST CAN ARISE ONLY WHERE THE AMOUNT OF THE PRINCIPAL SUM OWED IS CERTAIN OR CAN AT LEAST BE ASCERTAINED ON THE BASIS OF ESTABLISHED OBJECTIVE FACTORS . IN THIS CASE , A DEBT OF A CERTAIN OR ASCERTAINABLE AMOUNT CAME INTO BEING ONLY WITH THE ENTRY INTO FORCE OF REGULATION NO 3139/82 .
21 THE POWERS CONFERRED ON THE COUNCIL BY ARTICLE 65 OF THE STAFF REGULATIONS FOR ADJUSTING THE REMUNERATION AND PENSIONS OF OFFICIALS AND OTHER SERVANTS AND FOR FIXING THE WEIGHTINGS APPLICABLE TO SUCH REMUNERATION AND PENSIONS INVOLVE THE EXERCISE OF A DISCRETION . NO CERTAINTY EXISTS AS TO THE AMOUNT BY WHICH THE REMUNERATION AND PENSIONS WILL BE ADJUSTED OR THE MANNER IN WHICH THE WEIGHTINGS WILL BE FIXED UNTIL THE COUNCIL HAS EXERCISED THOSE POWERS AND ADOPTED THE REGULATION ON THE MATTER . ALTHOUGH IN ITS AFORESAID JUDGMENT OF 6 OCTOBER 1982 IN CASE 59/81 THE COURT HELD THAT THE COUNCIL MUST , IN THE EXERCISE OF ITS DISCRETION , TAKE CERTAIN FACTORS INTO CONSIDERATION , IT DID NOT , CONTRARY TO THE APPLICANTS '  ASSERTION , EITHER DETERMINE THE AMOUNTS WHICH WERE ACTUALLY PAYABLE TO OFFICIALS AND OTHER SERVANTS PURSUANT TO ARTICLE 65 OF THE STAFF REGULATIONS OR ESTABLISH THE OBJECTIVE CRITERIA ENABLING THOSE AMOUNTS TO BE DETERMINED SUFFICIENTLY PRECISELY .
22 SIMILARLY , THE ARGUMENT THAT THE RETROACTIVE EFFECT OF REGULATION NO 3139/82 CONSTITUTED RECOGNITION OF THE FACT THAT THE SUM OWED TO EACH OFFICIAL WAS ALREADY CERTAIN AT EACH DATE ON WHICH REMUNERATION WAS PAYABLE UNDER THE STAFF REGULATIONS , CANNOT BE ACCEPTED . BEFORE THE ENTRY INTO FORCE OF REGULATION NO 3139/82 , THE AMOUNT OF THE PRINCIPAL SUM OWED WAS UNCERTAIN . AS REGARDS THE PERIOD FOLLOWING THE ENTRY INTO FORCE OF THE REGULATION , THE APPLICANTS HAVE NOT ARGUED THAT THERE WAS A DELAY IN THE PAYMENT OF THE SUMS DUE PURSUANT TO THAT REGULATION .
23 A FURTHER QUESTION WHICH COULD ARISE IS WHETHER AN OBLIGATION TO PAY DEFAULT INTEREST SHOULD BE RECOGNIZED WHERE THERE WAS AN UNJUSTIFIED DELAY IN ACTUALLY DETERMINING THE AMOUNT OF THE REMUNERATION OWED . HOWEVER , IN THIS CASE , THE COUNCIL ADOPTED REGULATION NO 3139/82 WITH ALL DUE DILIGENCE ON 22 NOVEMBER 1982 IN COMPLIANCE WITH THE COURT ' S JUDGMENT OF 6 OCTOBER 1982 .
24 IT FOLLOWS THAT , IN THIS CASE , THERE IS NO OBLIGATION TO PAY DEFAULT INTEREST . ACCORDINGLY , THOSE OF THE APPLICANTS '  CLAIMS WHICH WERE REFERRED BY JUDGMENT OF 4 JULY 1985 OF THE THIRD CHAMBER OF THE COURT TO THE FULL COURT FOR CONSIDERATION MUST BE REJECTED . THE APPLICATION MUST THEREFORE BE DISMISSED IN ITS ENTIRETY .
Decision on costs
COSTS
25 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING . HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS ,
THE COURT
HEREBY :
( 1 ) DISMISSES THE APPLICATION .
( 2 ) ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .