3.

With regard to the question as to the extent to which the Commission has to make good the damage obviously caused to the applicant by the belated reinstatement, it depends on whether there is contributory blame on the part of the applicant and how far this should be taken into account. On principle I take the view that contributory blame should also be taken into account in claims based on Article 40 even though, as already mentioned, this provision contains no obligation on the particular official to do anything. The decisive factor, as the Commission has rightly pointed out, is that we are concerned with a claim for liability for breach of official duty. However, the general principle applies in this sphere also that an injured party, especially where it is a question of continuing damage, must endeavour by appropriate and reasonable action on his part to mitigate the damage as much as possible. The applicant informed the Commission in his letter of 30 May 1972 that as from 1 June 1972 he was again available for employment. Further, in April 1973 he completed a form of application sent to him and sent it back to the Commission without comment. The applicant maintained that he had further contacts with the Commission, but this is disputed by the Commission and neither the dates nor particulars could be given nor, more important, could be proved. I must accordingly leave it out of account and can only observe that on the whole the applicant took only very modest steps in relation to his reinstatement in the Commission. On the other hand it may be said that he could easily have taken much more trouble over his affairs since he had his residence in Brussels until the autumn of 1973 and since his wife was employed by the Commission. At least after the lapse of a lengthy period he could have made effective inquiries about vacancies, such as by following up notices in the buildings of the Commission or requesting the Staff Courier to be sent to him, and he could have reminded the Commission of its obligation in an effective manner, for example by making a complaint and, if necessary, bringing the matter before the Court. There was cause for him to do this at least at the time when, allegedly with resignation, he set about preparing to return to the French administration. Had he acted in the manner described, his position, in my opinion, would have been settled in a satisfactory manner in the summer of 1973. I would therefore not hesitate to say that the applicant contributed to the extent of the damage. This should be taken into account in assessing the compensation on the basis that the applicant should alone bear the consequences of the disregard of Article 40 of the Staff Regulations after 1 September 1973. The following observations may thus be made on the individual claims of the applicant: — Since it is clear that the applicant could have been employed again in the Commission on 1 July 1972, this date must be taken as the criterion in reckoning his seniority according to which, inter alia, the claims to retirement pension are assessed. The applicant's present seniority must in consequence be determined on the basis of his seniority in the first step of Grade A 6 at the beginning of his leave on personal grounds. The Commission, to whom the details may be left, must also have regard to the advancement to the next step in grade provided for in Article 44 of the Staff Regulations and to make salary payments to the applicant accordingly. — With regard to the loss of promotion opportunities and the damage to the applicant relating thereto, it should be borne in mind that the applicant, who had a seniority of 11 months in the salary grade A 6 at the beginning of his leave, would have completed the minimum period of two years in his grade laid down by Article 45 of the Staff Regulations for promotion on 1 August 1973 if he had been reinstated on 1 July 1972. After the decision of 10 September 1974, which provided for reinstatement on 15 August 1974, the administration on the other hand assumed that the applicant would be entitled to promotion only on 15 September 1975. The applicant was thus deprived of opportunities for promotion for a period of more than two years. It is very difficult, however, to know how these opportunities are to be assessed. It must be borne in mind that many circumstances are relevant in promotion such as the possibilities of transfer within an institution and within the Community or the abilities of other candidates. Statistical considerations such as the Commission has provided do not help the applicant. According to these there was at most a chance of 1:9 in respect of the years 1969 to 1974 on comparing the number of candidates suitable for promotion with the number of actual promotions. If this is considered and it is further borne in mind that promotion within the career bracket where the chances are probably greater did not come into question for the applicant and if the fact is further borne in mind that promotions to Grade A 5 are on average only after five years in the previous grade, then it is hard to arrive at a decision to accord the applicant compensation for any loss of promotion opportunities. — With regard to the claim for arrears of salary it should be stressed on the one hand that the Commission's objection — no longer pursued, moreover, in the oral proceedings — that the applicant in fact did no work, is certainly not valid. It cannot be objected, at least in respect of the period immediately following on the applicant's leave, because in this respect the failure to perform any services is solely due to the Commission's conduct. On the other hand, however, account must be taken of the applicant's contributory blame in assessing the relevant means of pay. If account is taken of what I have said in this respect then it is proper to acknowledge that the applicant is entitled to arrears of pay only in respect of the period from 1 July 1972 to 31 August 1973. The Court should restrict itself to this finding. Details of the computation, for which the salary tables relevant to that time apply, may be left to the Commission. — In my view these observations cover all that is necessary to be said in respect of the applicant's claim to payment of the difference between the remuneration which he received while employed in the French civil service and the Community salary which he would have received had he been reinstated in good time and also the claim for refund of the expenses which he incurred through the separation from his family and his stay in Paris from 1 September 1973. If it is assumed that the applicant could have been again in the employment of the Community on 1 September 1973 had he exerted himself in time and if the neglect to make such an effort is regarded as contributory blame, the consequence may be drawn from this that the applicant is himself liable for the said damage. I do not therefore regard a claim for compensation against the Commission in this respect as justified. — Finally, a few words are all that are necessary with regard to the applicant's claim for the payment of interest. The question can remain open whether and under what conditions in Community law interest is due in respect of delay or on sums awarded in judgments. In the present case it is enough to observe that the applicant's rights arise out of a wrongful omission on the part of the Commission. This means that the applicant must be put into the position in which he would have been if the amounts now to be paid back to him had been properly paid, that is to say, in due time. This means that interest should be paid from the time when the payments were due. Since the interest rates which the applicant has mentioned appear proper and since the Commission has raised no objections in this respect, I have nothing to say against including them in the order, that is interest at 6 ½ % until 31 October 1974 and 8 % from 1 November 1974.