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.