OPINION OF MR ADVOCATE GENERAL CAPOTORTI — 
JOINED CASES 64 AND 113/76. 167 AND 239/76, 27, 28 AND 45/79 
OPINION OF MR ADVOCATE GENERAL CAPOTORTI 
DELIVERED ON 27 APRIL 1982 ' 
Mr President, 
Members of the Court, 
1. The Court has so far twice had 
occasion to give a ruling on the problems 
caused by the temporary abolition of the 
production refunds for gritz (maize 
groats and meal intended for use in the 
brewing of beer) brought about by Regu­
lation No 665/75 of the Council of 
4 March 1975. On the first occasion the 
judgment of 19 October 1977 in Joined 
Cases 124/76 and 20/77 (Moulins & 
Huileries de Pont-à-Mousson and Société 
Coopérative "Providence Agricole de la 
Champagne" [1977] ECR 1975) declared 
the abolition of those refunds 
incompatible with the principle of 
equality but left it to the appropriate 
Community institutions concerned with 
agricultural policy to put an end to the 
discriminatory situation. Thereupon, bv 
Regulations Nos 1125/78 and 1127/78 
of 22 May 1978, the Council restored 
the production refunds for gritz until the 
end of the 1978-79 marketing year but 
only as from the date of the judgment, 
namely 19 October 1977. The French 
companies Dumonier, Maïseries de 
Beauce, Costimex and Maïseries 
Alsaciennes were dissatisfied with that 
limitation and. together with the two 
aforesaid companies Moulins & Huile­
ries de Pont-ã-Mousson and Providence 
Agricole de la Champagne, they sought 
an order from the Court requiring the 
Council to pay compensation for the 
damage suffered by reason of the failure 
to make the restoration of the 
production refunds retroactive. 
The Court upheld the claim and bv 
judgment of 4 October 1979 ([1979] 
ECR 3091) ordered the European 
Economic Community to pay to the 
applicant companies "amounts equivalent 
to the production refunds on maize gritz 
used by the brewing industry which each 
of those undertakings would have been 
entitled to receive if, during the period 
from 1 August 1975 to 19 October 1977, 
the use of maize for the production of 
gritz had conferred an entitlement to the 
same refunds as the use of maize for the 
manufacture of starch"; an exception 
was to be made "for the quantities of 
gritz sold at prices increased by amounts 
equivalent to the unpaid refunds under 
contracts guaranteeing the buyer the 
benefit of any re-introduction of the 
refunds". The Court further ordered that 
interest at 6% should be paid on the 
aforesaid amounts as from the date of 
the judgment and that the parties should 
inform the Court within 12 months from 
the delivery of the judgment "of the 
amounts of compensation arrived at 
bv agreement". In the absence of 
agreement the parties were to transmit to 
the Court "within the same period a 
statement of their views, with supporting 
figures". 
I — Translated from the Italian. 
1752
DUMORTIER v COUNCIL 
After various extensions of the period 
laid down by that judgment the applicant 
undertakings ultimately reached agree­
ment with the Commission and Council 
in January 1981 on the quantities of 
maize used in the production of gritz 
and on the amount of refunds expressed 
in units of account for the period from 1 
August 1975 to 19 October 1977. The 
undertakings and the institutions 
remained at issue, however, on the 
relevant date for convening the units of 
account into French francs, which were 
the national currency of all the applicant 
companies. The institutions maintained 
that the relevant date was that of the 
production of the gritz, while the under­
takings were of the opinion that it was 
the date of the judgment which had 
recognized the right to obtain 
compensation and had laid down the 
criteria for quantifying the damage. 
Pending resolution of that issue (which, 
as we shall see, is not of negligible 
economic importance), the institutions 
paid the sums calculated on the basis of 
the conversion which they considered 
applicable: FF 5.633 per unit of account 
in respect of the period from 1 August 
1975 to 31 July 1977 and FF 5.7806 per 
unit of account in respect of the period 
from 1 August 1977 to 18 October 1977. 
The applicant undertakings are now 
asking the Court to determine the 
compensation due to them on the basis 
of a rate of FF 6.73056 per European 
currency unit (which in the meantime 
replaced the unit of account) prevailing 
at the date of the judgment and to order 
the Council to pay each of the parties 
the difference between the sums already 
paid provisionally and those resulting 
from application of the above-mentioned 
rate. 
2. In defence of the method used to 
calculate the compensation, the Council 
refers in the first place to the judgment 
of 4 October 1979, which by implication 
specified the application of the 
conversion rate prevailing at the time of 
the production of each quantity of gritz. 
The argument put forward by the 
Council rests on a comparison between 
the applicants' claims and the operative 
part of the judgment. The applicants put 
forward a main claim and one in the 
alternative: in the main claim they 
sought compensation on the basis of the 
rate for convening units of account into 
French francs prevailing at the time of 
production, with interest from the dates 
when the monthly unpaid instalments of 
refunds fell due; in the alternative, in the 
event of their entitlement to interest 
not being recognized, they asked that 
the Community be ordered to pay-
compensation for the damage on the 
basis of the value of the unit of account 
at the date of judgment. In the Council's 
view, the fact that the Coun recognized 
the applicants' right to interest, albeit 
calculated on a different basis, means 
that it upheld the main claim and 
rejected the claim in the alternative: it 
is therefore not now possible to hold 
that the applicants are entitled to 
compensation in a larger sum than that 
requested in their main claim, as would 
be the case if a more advantageous rate 
were applied for the conversion into 
French francs of the sum expressed in 
units of account than that prevailing 
when the monthly payments of refunds 
fell due. The Council funher observes 
that to interpret the judgment otherwise 
would mean holding that the Coun 
1753
OPINION OF MR ADVOCATE GENERAL CAPOTORT! — 
JOINED CASES 6-i AND 113/76, 167 AND 239/76. :7, 2( AND 45/79 
intended to allow the undenakings the 
more favourable rate of conversion 
(claimed by the applicants in the alter­
native) and at the same time to award 
interest (not envisaged in the claim in the 
alternative), thus awarding a larger sum 
than that claimed and offending against 
the principle that the judgment should 
correspond to the claim. 
Obviously that argument does not take 
account of the fact that the Court 
awarded the undertakings interest from 
the date of judgment, that is from 
4 October 1979, whereas the applicants 
had claimed interest from the dates on 
which the unpaid monthly payments of 
refunds fell due. Those payments fell due 
at various dates between 1 August 1975 
and 19 October 1977, so it is clear that 
there was a significant financial 
difference between the claim and the 
judgment; in other words the applicants 
will receive by way of interest an 
appreciably smaller sum than that which 
they had claimed under that head. The 
aforesaid judgment does not therefore 
accord with the main claim. 
Having stated that, I do not think it 
possible to say that the Court by 
implication rejected the method of 
quantification of the damage advocated 
in the claim in the alternative. Such 
an interpretation conflicts with the 
requirement of assessing the various 
heads of a claim, especially a claim for 
compensation, with due respect for the 
economic significance thev have as a 
whole. From thai it follows thai in an 
action such as the present it is not proper 
artificially to separate the main claim and 
the claim in the alternative, stressing in 
each case the position least favourable to 
the applicants: namely, on the one hand, 
the way in which the claim for damage 
was formulated in the main claim and, 
on the other, the failure to claim interest 
in the alternative. Only if the Court had 
awarded the undertakings interest as 
claimed (that is to say, from the date on 
which each unpaid instalment of refunds 
fell due) would it be reasonable to 
assume that the compensation must be 
calculated in accordance with the main 
claim and the judgment would probably 
have to be interpreted to that effect. 
That is however not the case, as we have 
seen. 
The wording of the applicants' claim 
does not therefore provide a sufficiently 
solid basis for interpreting the judgment 
in the way proposed by the Council. 
Thus it remains to be established what 
the Court intended when it specified the 
amount of compensation as "the 
amounts equivalent to the production 
refunds on maize gritz . . . which [the] 
undertakings would have been entitled to 
receive if, during the period from 1 
August 1975 to 19 October 1977, the use 
of maize for the production of gritz had 
conferred an entitlement to the same 
refunds as the use of maize of the manu­
facture of starch". The essence of the 
question is to establish whether the 
equivalence between the compensation 
and the unpaid refunds must be 
understood in an economic or a nominal 
sense, that is to say, as a specific sum ot 
money unaffected by any depreciation 
which a currency may have suffered 
between the event and the détermination 
of the amount of compensation. 
3. The grounds of the judgment ot * 
October 1979 do not contributi- to the 
solution ot the problem. At paragraph M 
the Court states in a general wa\ that 
1754
DUMORTIER v COUNCIL 
since the origin of the damage lies "in 
the abolition by the Council of the 
refunds which would have been paid to 
the gritz producers if equality of 
treatment with the producers of maize 
starch had been observed", "the amount 
of those refunds must provide a yardstick 
for the assessment of the damage 
suffered". Paragraph 18 (on which the 
Council relied) states that "the loss for 
which the applicants must be 
compensated has to be calculated on the 
basis of its being equivalent to the 
refunds which would have been paid to 
them, if, during the period from 1 
August 1975 to 19 October 1977, the use 
of maize for the manufacture of gritz 
used by the brewing industry had 
conferred a right to the same refunds as 
the use of maize for the manufacture of 
starch". But such expressions, which 
basically coincide with that adopted in 
paragraph 1 of the operative pan, are 
ambiguous and lend themselves to be 
interpreted in favour of one or other of 
the opposing arguments. When in fact 
the judgment speaks of the amount of 
unpaid refunds that does not resolve the 
problem of the relevant time for 
determining the pecuniary extent of the 
damage: it does not specify whether it is 
the date when the damage occurred, as 
the Council submits, or the date of the 
judgment awarding compensation, as the 
applicants maintain. 
In support of their argument that the 
damage is to be determined by 
converting the sum expressed in units of 
account at the rate prevailing at the date 
of ludgmeni. the applicants stress that 
the Įudgment of 4 October 1979 
awarded interest as from the date 
thereof, and not. as they had claimed, 
from the date when the damage 
occurred, that is to say, from the time 
when the unpaid refunds fell due. They 
observe that since the Court resolved the 
question of interest in that restrictive 
fashion it could be explained only on the 
basis that, in the Court's view, the 
assessment of the damage must be made 
at the date of judgment; such an 
assessment involves taking into account 
all claims to compensation in relation to 
the period from the production of the 
gritz to the date of the judgment, 
including the claim for interest for delay 
in payment. According to that argument, 
in brief, there is a strict correlation 
between the commencement of interest 
and the method of assessing the damage, 
in the sense that the date fixed for the 
commencement of the interest must 
necessarily coincide with that to which 
reference is made for the purpose of 
quantifying the damage. In that respect, 
the applicants stress that if the payment 
of compensation had reference to a 
previous date the damage caused by facts 
such as the depreciation of the currency 
following the occurrence of the original 
damage would remain without any form 
of compensation. 
It does not seem to me that the argument 
based on the commencement of the 
interest is decisive for the purpose of an 
interpretation of the judgment in the 
sense advocated by the applicants. It is 
quite possible that when formulating a 
main claim and one in the alternative 
those undertakings assumed that the 
commencement of interest must coincide 
with the date with reference to which 
compensation was to be paid and it is 
clear that from a purely economic poini 
of view it is reasonable that the two 
dates should coincide. However. I doubt 
whether an observation of that kind can 
support an argument to resoive the 
1755
OPINION OF MR ADVOCATE GENERAL C^POTORTl — 
JOINED CASES »4 AND 115/7e, 167 AND 239/76, 27, 28 AND 45/79 
problem of interpretation of the 
judgment. The legal systems of the 
Member Sutes do not contain a general 
principle according to which interest 
must run from the date with reference to 
which compensation is paid; the 
solutions adopted by national law on this 
subject are most diverse. In some 
countries the award of interest and the 
date from which it is to commence is in 
the discretion of the court (that is the 
case in English law and, to some extent, 
also in Danish law); in others interest 
runs from the date on which payment is 
demanded of the debtor (that is the case 
in the Federal Republic of Germany) or 
from the date of judgment (that is so in 
French and Belgian law). The fact that 
the Court made interest payable from the 
date of the judgment can in my opinion 
at most serve as evidence of a certain 
inclination to make the award of dam­
ages coincide with the commencement of 
interest. 
Those considerations confirm my 
opinion that it is not possible to derive 
precise indications from the judgment of 
4 October 1979 on the date to which 
reference must be made for determining 
the rate to be applied for the conversion 
of the units of account into French 
francs. I therefore think it necessary to 
view matters from a different angle and 
try to establish how the award of 
damages would be on the basis of the 
principles common to the laws of the 
Member States, to which Article 213 of 
the EEC Treaty refers. The conclusions 
reached on that basis may then constitute 
a valid instrument for interpreting the 
judgment. 
4. In the laws of the Member States 
there is a fairly clear tendency· to the 
effect that the pecuniary extent of the 
damage must be determined with 
reference to the date of judgment. Allow 
me to say that that tendenc)· rests above 
all on an argument of a logical nature: 
the obligation to compensate aims to 
restore the capital which has been 
diminished (restitutio in integrum) and 
effective restoration is possible only by 
assessing the damage at the date of the 
award and not at an earlier date. If that 
were not so, the victim of an unlawful 
act unconnected with a contraa would 
run a double risk: that of an increase in 
the value of the goods or interest 
damaged, between the date of the 
damage and the date of the award, and 
the risk of a currency devaluation. Even 
if the latter is unconnected with the 
conduct of the author of the damage and 
that of the victim, it is not possible to 
overlook the fact that the person bound 
to compensate the damage has 
committed a wrong and it is therefore 
reasonable that he should suffer all the 
consequences, including those connected 
with a currency devaluation. Further, it 
must be borne in mind that if the 
defendant had compensated the victim 
promptlv the devaluation would have 
had no effect. 
It is appropriate now to go on to 
consider the cases concerned with the 
date to which reference musi be made 
for the award of damages, without at the 
same time overlooking the decisions 
concerned with the problem of the rate 
of exchange to be applied to debts ori­
ginally expressed in a foreign currency. 
1756
DUMORTIER v COUNCIL 
The two questions are closely connected: 
whether it is a question of awarding 
damages or specifying the applicable rate 
of exchange, variations in the value of 
the currency are more or less taken into 
account according as the date on which 
the debt arose is further or closer to the 
date of judgment. In particular, in both 
civil and criminal matters the French 
Cour de Cassation in determining the 
pecuniary extent of the damage takes 
account of the lapse of time between the 
occurrence of the damage and the award 
of compensation, including any variation 
in the value of the currency in the 
meantime. The relevant cases specify' in 
relation to non-contractual liability the 
rate of exchange at the date of payment 
(cf. Cass. Req. 3 May 1946, Rec.'Sirey 
1951, 1, 33; Cass. Comm. 18 November 
1952, Bull. Civ. Ill, No 355, p. 273) or 
the date of the court award (cf. Cass. 
Crim. 7 July 1966, Gaz. Pal. 1966, 2, 
193). On the other hand, the French 
Conseil d'État takes the view that as 
regards the non-contractual liability of 
the public authorities compensation 
expressed in foreign currency must be 
converted into national currency at the 
rate prevailing when the obligation 
arose, that is to say when the damage 
was caused. 
According to the Italian courts, an 
obligation to compensate for damage 
caused by an unlawful act is undoubtedly 
an "obbligazione di valore": it follows 
thai if in between the time when the 
damage occurs and the award of 
compensation there is shown to be a 
reduction in the purchasing power of the 
currency the court must of its own 
motion take account thereof for the 
purpose of effectively restoring the 
victim to his previous financial position 
(cf. Cassazione, 16 February 1978, 
No 760; 21 February 1978, No 845; 17 
January 1979, No 338; 30 January 1979, 
No 689). The same decisions state that 
the obligation to compensate retains its 
nature as an "obbligazione di valore" 
even when the damage consists in the 
loss of a sum of money, since in such a 
case the sum of money does not 
constitute the object of the obligation but 
onlv a factor in measuring the damage 
(cf.'Cassazione, 13 Julv 1978, No 3542; 
5 January 1979, No 30). 
As regards English law, the approach 
recently adopted in the Miliangos and 
the Despina cases (judgments of the 
House of Lords of 5 November 1975 in 
Miliangos v George Frank (Textiles) Ltd 
[1976] AC 443 and 19 October 1978 77>e 
Despina R. [1978] 3 WLR 804) is to the 
effect that compensation must accord 
with the principle of restitutio in integrum 
and that the pecuniary extent of the 
damage may also be determined in a 
foreign currency· and convened into 
national currency at the rate applicable 
on the day of payment. A similar view is 
to be found in the law of the Federal 
Republic of Germany, according to 
which the damage must be calculated 
with reference to the date when the 
debtor fulfils the obligation to 
compensate the victim. Belgian law is 
based on the principle that compensation 
is intended fully to restore the victim to 
his previous financial position and trom 
that point of view damages must be 
assessed with reference to the date of 
judgment; if the ludgment is expressed in 
foreign currency conversion into the 
1757
OPINΊON OF MR ADVOCATE GENERAL CAPOTORTI — 
JOINED CASES b-i AND 113/76. 167 AND :J9/7S. 2?, 26 AND 45/?9 
national currency· must be made at the 
rate prevailing at the date of payment. In 
Netherlands law when damages are fixed 
in foreign currency the debt may be 
discharged by paying the corresponding 
sum in national currency at the rate of 
exchange prevailing at the date of 
payment. On the other hand, Irish law 
and Danish law do not seem to take 
account of variations in currency and 
exchange rates between the date when 
the damage occurred and the court 
award of compensation. 
Therefore, I think it possible to say that 
within the Community there is a 
sufficiently clear and widespread tend­
ency to the effect that in determining 
compensation in cases of non-contractual 
liability account is also taken of the 
effects of matters subsequent to the 
unlawful act. That tendency is in my 
opinion an expression of the general 
principle that compensation is intended 
to restore the victim of the unlawful act 
to his previous financial position: 
therefore an award which left out of 
account, for example, variations in the 
value of the currency occurring after the 
unlawful act would be illusory and 
would not achieve the said effect. 
In order to apply that principle to this 
case the amount of compensation must 
be determined bv convening the units of 
account (the amount ot which has been 
agreed between the parties) into French 
francs (the national currency of the 
applicants) at the rate prevailing on 4 
October 1979, the date ot the judgment 
which ordered the Community to 
compensate the applicants for the 
damage. In that way the victims will not 
have to bear the negative consequences 
of the depreciation which affected the 
currency after the occurrence of the 
unlawful act and their purchasing power 
will be restored to the level at which it 
would have stood at the time if the 
refunds had not been temporarily 
abolished. 
5. The solution which seems to me 
preferable finds significant confirmation 
in the principle of equality. It suffices to 
observe in that respect that the argument 
put forward by the Council to the effect 
that the applicable rate should be that in 
force when each unpaid instalment of 
refunds fell due would give rise to 
manifest discrimination in treatment 
between undertakings operating in 
countries with a weak currency (such as 
France) and those operating in countries 
with a strong currency, that is to say in 
countries in which the currency has 
acquired greater value in relation to 
other Community currencies in the time 
which has elapsed between the dates 
when the unpaid instalments of refunds 
fell due and the date of the judgment of 
this Court (the typical case is that of the 
currency of the Federal Republic of 
Germany). If compensation for the 
damage were paid in accordance with 
the view urged by the Council, under­
takings in countries whose currency has 
been devalued would now receive less 
purchasing power, that is less wealth, 
than undertakings in countries whose 
currency has not been devalued (or has 
been devalued to a lesser extent). The 
French francs which the French under­
takings would have received at the time 
of the production of the quantities of 
gruz which did not eniov aid have at 
1758
DUMORTIER v COUNCIL 
present less purchasing power, whereas 
the marks which the German under­
takings would have received then have 
today a greater purchasing power. The 
course of time has not been neutral but 
has significantly altered the relationship 
between currencies and thus the effective 
value of the damages awarded to the 
various undertakings. It seems to me 
essential that the compensation awarded 
today should assure all the undertakings 
the same purchasing power that the 
refunds would have given them if they 
had been paid at the proper time: only in 
that way can the principle of equal 
treatment be respected. 
In its pleadings the Council also cited 
that principle, but for the purpose of 
drawing the opposite conclusion. It 
observed that if it were to apply the rate 
in force at the time of judgment to the 
conversion of the units of account into 
national currency it would now have to 
pay the undertakings in countries with a 
strong currency nominally smaller sums 
than those which they would have 
received when the unpaid refunds fell 
due; in its opinion, that would mean 
discrimination in favour of the under­
takings in countries with a weak 
currency, which would today receive 
larger sums than they would have 
received if the refunds had been paid at 
the time of production. But that 
argument has no substance inasmuch as 
it seems to overlook the fact that the 
value of the currency changed after the 
occurrence of the damage and that in 
order to ensure effective equality of 
treatment it is now essential to pay 
nominally different amounts to under­
takings situated in different Member 
States. 
The view which I have taken is further 
confirmed, albeit indirectly, by a 
previous decision of this Court. The 
judgment of 13 February 1980 in Case 
256/78 (Misenta v Commission [1980] 
ECR 219) determined the rate of 
exchange to be applied to the 
reimbursement of medical expenses with 
reference not to the date of treatment, as 
the Commission contended, but to the 
date of reimbursement and supported 
that view by stating that "the delay 
which may occur between the day on 
which treatment is paid for and the day 
in which reimbursement is effected is 
likely to create inequality between 
officials according to whether they 
perform their duties in a country with a 
weak currency or in one with a strong 
currency" (Paragraph 11 of the 
Decision). Thus the Court held, with 
reference to the performance of an 
obligation which had its origin in the 
Staff Regulations, that it was necessarv 
to apply the rate of exchange prevailing 
at the date of payment, rather than the 
rate prevailing when the obligation arose. 
It seems to me reasonable to apply a 
similar criterion to the obligation to 
compensate, both because the principle 
of equality plays a decisive role in this 
case also and because only the 
application of the current rate allows 
damages to fulfil their function of re­
storing the injured party to his previous 
financial position. 
Article 4 (2) of Regulation No 1 154/6S 
of the Council does not. as the Council 
contends, support the contran- view. 
That provides that "sums owed to or bv 
a Member State or a duly authorized 
1759
OPINION OF MR ADVOCATE GENERAL CAPOTORT1 — 
JOINED CASES 64 AND IIJ/76, 167 AND 239/78, 27, 28 AND 45/79 
body, expressed in national currency and 
representing amounts fixed in those 
provisions in units of account, shall be 
paid on the basis of the relationship 
between the unit of account and the 
national currency which obtained at the 
time when the transaction ... was 
carried out". In my opinion, it is not 
possible to establish a parallel between 
performance of the obligation to pay the 
refunds (to which the said provision 
refers) and performance of the obligation 
to compensate for damage caused to 
undertakings by failing to pay those 
refunds during a period in which they 
were abolished. 
6. In conclusion, I propose that the Court, in giving judgment on the 
applications submitted by the French producers of gritz in Joined Cases 64 
and 113/76, 167 and 239/78, 27, 28 and 45/79, should order the European 
Economic Community to pay the applicants, by way of compensation for the 
damage suffered by reason of the breach of the principle of equality, the 
sums resulting from the conversion into French francs of the units of account 
due to each of them under the agreement made with the institutions in 
January 1981 at the rate in force on 4 October 1979, with interest at 6% 
from the same date, less any sums already paid to the undertakings by way 
of interim payment. 
As for the costs, the Court has been invited by the parties to fix the amount 
payable in connection with the procedural steps taken by the applicants up to 
the partial agreement reached in January 1981 on the amount of the 
damages expressed in units of account. The applicants have indicated a 
lump-sum without specifying the various heads. The costs claimed are thus as 
follows: FF 45 000 in Case 64/76, FF 42 500 in Case 113/76, FF 57 COC 
in Case 167/78, FF 40 000 in Case 239/78, FF 100 000 in Case 27/79, 
FF 86 500 in Case 28/79 and FF 10 000 in Case 45/79. The Council 
considers those claims excessive, especially since the cases were identical and 
required the same treatment. 
I think the Council's obsenations are well-founded. Since the cases zrc 
identical it seems to me right to fix the costs for each undertaking up io 
ļanuarv 1981 as follows: FF 31500 in Case 64/76, FF 29 75C in Case 
'113/76, FF 39 900 in Case 167/78, FF 28 000 in Case 239/78, FF 7Z CCC in 
1760
DUMORTIER v COUNCIL 
Case 27/79, FF 60 550 in Case 28/79 and FF 7 000 in Case 45/79. That of 
course takes account of the different sums involved in each case. 
The costs incurred by the applicants after January 1981 must be borne bv the 
Council on the basis of the principle that costs follow the event. The question 
of the amount must be considered and decided subsequently, in the event of 
the parties not reaching agreement thereon. 
1761