61979C0158(01)
OPINION OF MR ADVOCATE GENERAL MANCINI
delivered on 11 December 1984 (
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)
Mr President,
Members of the Court,
1.
In the interlocutory judgments delivered on 15 December 1982 in Cases 158/79 (Roumengous v Commission, [1982] ECR 4379), 543/79 (Birke v Commission, [1982] ECR 4425), 737/79 (Battaglia v Commission [1982] ECR 4479) and Joined Cases 532, 534, 567, 600, 618 and 660/79 (Amesz and Others v Commission, [1982] ECR 4465) the Court upheld the applicants' argument to the effect that Council Regulation No 3087/78 of 21 December 1978 (Official Journal L 369 of 29 December 1978, p. 10) infringed Articles 64 and 65 of the Staff Regulations.
It accordingly gave judgment in the following terms :
‘THE COURT
hereby
1.
Annuls the applicant's salary statement for January 1979, in so far as it is restricted to giving effect to Council Regulation No 3087/78, both as to the amount of the adjustment of the weighting and as to the retroactive effect of that adjustment, together with the decisions rejecting the applicant's complaints; declares Regulation No 3087/78 not applicable to the applicant in so far as it takes no account of the cost of living in Varese and limits the retroactive effect of the adjustment of the weighting to 1 January 1978;
2.
Orders the Commission to report to the Court before 15 July 1983 on the measures taken to comply with this judgment;
3.
Defers examination of the claim for compensation for the pecuniary damage suffered by the applicant to a date to be fixed at a later date if necessary;
4.
Reserves the costs.’
Subsequent events may be quickly described. In compliance with the request made to it by the Court the Commission lodged on 14 July 1983 a preliminary interim report and in February 1984 a final report in respect of each of the aforesaid cases. It appears from the latter report that by Regulation No 3681/83 of 19 December 1983 (Official Journal L 368) the Council amended as from 1 January 1976 the sixmonthly weightings applicable to the salaries of officials and other servants employed on the one hand in Italy, with the exception of Varese, and on the other, Varese. On the basis of those rules the Commission then calculated and paid the arrears to the applicants between the end of 1983 and the beginning of the new year.
Those payments, however, did not satisfy the recipients. They claim to be entitled also to compensation for two losses: that caused by the delay in the adjustment of the weighting and that caused by the depreciation in the value of the Italian lira before the payment took place. For its part the Commission maintained that in adopting Regulation No 3681 and its implementing provisions all differences between the parties must be regarded as resolved. Faced with that uncompromising attitude the applicants therefore ask on the basis of their original (and general) claim for payment of interest due to them that the Court should order the defendant: (a) to pay default interest and (b) to make good the greater damage which they had suffered by reason of the depreciation in the value of the lira during the period of delay. Except in Case 158/79 the payment of the second sum is sought by way of compensatory interest.
In its observations in reply the Commission in the first place raises an objection of inadmissibility (more correctly, the nonpermissibility) of the claim under (b), on the ground that it is a new claim in relation to the original action. In any event, it denies that it is responsible for the delay in payment and asks for that claim, along with other claims for compensation, to be dismissed.
In support of their arguments the parties cite numerous judgments of the Court and of the various national courts. It is an impressive body of material but of little use for our purposes if only because the arguments to be derived therefrom in support of one contention or another end up by counterbalancing one another. Let us therefore deal with the question of substance.
2.
I will begin by stating a premise. In his Opinion of 30 September 1982 ([1982] ECR at p. 4423) Mr Advocate General Capotorti proposed that the Court should decide as follows in relation to the calculation of pecuniary claims: ‘the said applicants be declared entitled to receive from the Commission the difference between the amount found to be due to them by virtue of the new calculation of the weighting — which must relate to the cost of living in the Province of Varese and be applied as from 1 January 1978 — and the amount which they have already received in respect thereof; the legally prescribed rate of interest of 6% per annum should be paid on all those sums’. In the cases before us today the parties have not adduced any new facts or particulars which would induce me to revise that view which I therefore adopt and confirm in all respects. In particular, the observations of Mr Advocate General Capotorti in relation, on the one hand, to the arguments which the applicants put forward in relation to breach by the institutions of the obligation to give assistance and the date from which the payments were made and, on the other hand, to the arguments put forward by the defendant on the powers of the Council in relation to legislative measures which involve choices of economic policy seem to me still valid.
I come therefore to the claim for the payment of default interest and compensatory interest. The two concepts are defined in the judgment of 15 July 1960 in Joined Cases 27 and 39/59 Campolongo v High Authority [1960] ECR 391 at p. 407. It is stated there that default interest ‘constitutes a legal evaluation and determination of the loss suffered by reason of the delay in complying with an obligation subject to the precondition of prior notification having been given... As for compensatory interest, it arises... as damages for failure to fulfil an obligation without prior notice being given. Nevertheless its imposition is dependent on damage’ being alleged and proved.
Vis-à-vis that clear distinction, the present case has two peculiarities:
(a)
the obligations in question are of a pecuniary nature and thus transferable. That means that the creditor does not have to take any steps for default to arise; default is automatic and arises when payment falls due (dies interpellat pro hornine);
(b)
compensatory interest is claimed not for the failure to perform an obligation but to compensate the applicants for the damage caused by the depreciation in the value of the currency during the period of delay.
The conceptual difference between the two claims remains all the same quite clear. In the case of interest it is a question of compensation for damage based on a simple finding of a delay for which the debtor is responsible. The obligation relating thereto is therefore ‘legal’ and that fact gives rise to a number of consequences; the delay on the one hand exempts the creditor from having to prove damage (which is quantified by the law) and on the other requires the debtor to prove that he has done everything possible to avoid the delay. From the point of view of procedure, then, because of its ‘legal’ nature, a claim for interest is implied in the general claim for compensation for damage.
On the other hand, even if it relates to delayed payment, damage through depreciation does not arise ope legis but is merely a factor the existence of which may increase the damage for which the creditor is responsible as a result of the delay. The creditor therefore has to prove it and this is no easy matter. It is not sufficient to produce figures or to cite matters of which judicial notice may be taken; he is required to show that if he had received the sums due to him punctually he would have invested them in property not subject to depreciation. Finally, since this kind of damage is emergens an appropriate claim is necessary.
3.
In the light of the decision in the Campolongo case and the observations I have just made the solution to the problem before the Court seems extremely simple. As regards the claim for default interest which is implied in the general wording of the application there is no need for requests to the defendant for payment or proof of damage by the applicants. The Commission is bound to pay such interest solely by reason of the delay; the circumstances by which it seeks to justify the delay are therefore irrelevant.
On the other hand I think that the claim for compensatory interest must be dismissed. In the originating applications none of the applicants has made any such claim, which was introduced for the first time in the observations submitted after the judgment of 15 December 1982 was given. In other words it is a new claim and as such inadmissible. However that may be, it is a fact that the applicants have in no way proved or quantified the damage suffered by reason of the depreciation during the period of delay.
One final observation. All the applicants have cited the third paragraph of Article 429 of the Italian Code of Civil Procedure which requires the court to determine the damage suffered by the worker by reason of the reduction in value of his credit. That rule, however, applies only in Italy. What is more, it has its inspiration in a social policy aimed at protecting ‘real’ salaries which is firmly rejected in the other Member States or pursued in a much less energetic way. It cannot therefore be accepted as applying to the Community civil service.
4.
The considerations which I have already set out in relation to the inadmissibility of new claims during the proceedings apply to the claims made in Joined Cases 543 and 532, 534, 567, 600, 618 and 660/79 {Birke and Amesz and Others v Commission) in relation to the bringing up to date of the weightings as from 1 January 1974.
5.
On the basis of the foregoing observations I propose that the Court should lift the reservation which it made in the judgments of 15 December 1982 and order that legal interest should be paid on the sums received by the applicants pursuant to those judgments at the rate of 6% from 1 January 1976.
On the basis of the principle that the unsuccessful party must pay the costs the Commission should pay the whole of the costs in Cases 158/79 (Routnengous) and 737/79 (Battaglia). Since on the other hand the Commission was only partially unsuccessful in the other cases I propose that it should pay two-thirds of the cosfs.
(
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)	Translated from the Italian.