5.

The submission alleging the infringement of Articles 62 and 65 of the Staff Regulations must therefore be rejected since it has no bearing either on the application for the annulment of the salary slips or on the objection of illegality concerning Regulation No 3139/82. However, the problem at issue in this case cannot be regarded as solved on the basis of that conclusion. Even Roman law recognized that qui tardius solvit minus solvit (Digest 50, 16, 12, 1), that is to say a delay in payment occasions a loss for which the creditor must be compensated. Is that principle also recognized by the EEC Treaty? In the light of the general principles and on the basis of certain provisions of the Staff Regulations, that question must in my view be answered in the affirmative. Articles 16 (1) and 17 (1) of Annex VII, which are referred to in the first paragraph of Article 62 of the Staff Regulations, provide that payment of remuneration to each official is to be made on the fifteenth day of each month at the place and in the currency of the country where he carries out his duties. It seems quite clear to me that failure to discharge a duty which is defined in so detailed, not to say so strict, a manner cannot go unpenalized and, in the event of delay, must entail the imposition of a specific penalty, namely the payment of default interest. That is precisely the position in these proceedings. It is common ground between the parties that there was a delay in the payment of the arrears. It can therefore be stated with certainty that the provisions referred to earlier have been infringed. Moreover, since the defendants are the only natural and legal persons under an obligation to pay the sums due, the applicants naturally turned to them in order to obtain payment of the interest which they consider is owed to them. The defendants however refuse to pay the interest. They disclaim any responsibility for the delay. They contend, as far as default interest is concerned, that the applicants did not give them prior notice to pay. On the assumption that such interest is owed, which they do not concede, the defendants maintain that the applicants calculated the rate thereof in an arbitrary fashion. What are the merits of those arguments? I now propose to consider them. In the light of Articles 16 and 17 of Annex VII to the Staff Regulations, it is incontestable that the defendants' pecuniary obligations are (a) quantified (hence certain as to the amount), (b) transferable (hence they must be discharged where the creditor resides), and (c) strictly limited in time (hence payment may be demanded when it falls due). As I explained in my Opinion of 11 December 1984 the creditor in circumstances of this kind is not obliged to take any steps or to adduce any evidence in order to place the debtor in default and establish his liability. As I said at the time ‘default is automatic and arises when payment falls due (dies interpellat pro hornine)’. I added that the obligation to pay interest arises exclusively by virtue of the objective delay in payment on the part of the debtor and it is therefore unnecessary to prove that the debtor is responsible for the delay. I am therefore clear in my mind that the arguments put forward by the defendants are untenable. Less clear and, I fear, fraught with disturbing implications is the line of reasoning inherent in the Court's judgments of 15 January 1985. The Court ordered the defendants to pay ‘interest at the rate of 6% per annum’ on arrears already paid, but it added, more specifically, that such interest is to be ‘calculated from ... the date of the ... complaint... and with effect from the dates on which the arrears became payable, as regards the instalments which fell due after’ the first-mentioned date. I agree with the first finding (to my knowledge never before has the Court recognized that entitlement to interest arises solely by reason of the delay). However, as far as the second finding is concerned, namely the date from which the interest is payable, evidently cannot endorse the solution adopted by the Court. As I have already said, two possible dates are indicated in the judgment, namely the date on which the complaint was submitted and the date on which the sums due became payable. I now turn to the first criterion. In its judgments of 15 December 1982 (which were interlocutory decisions in relation to the judgment given in 1985), the Court rejected the first criterion, albeit in different substantive and procedural context, on the ground that to accept it would have led to an absurd situation, that is to say ‘an official who considered himself injured by the Council's delay in adjusting the weighting would have ... not merely to submit a series of complaints possibly stretching over several years, but also to bring a series of actions before the Court, or risk being timebarred’ (Joined Cases 532, 534, 567, 600, 618 and 660/79 Amesz and Others v Commission [1982] ECR 4465). That reasoning in my view is very sensible and I fail to see why it should not also be applied in relation to interest which accrues as a result of the belated payment of sums which, as in this case, are undoubtedly quantified and payable. Moreover, to make the date from which interest is payable coincide with the date of the complaint is to neutralize to a large extent the retroactive effect of the adjustments introduced by Regulation No 3139/82. Finally, it must be borne in mind that to require an official to lodge a complaint solely in order that interest may accrue means to impose on hundreds (possiblythousands) of officials a duty to accomplish a formality which serves no useful purpose. In the light of the Court's judgment of 15 January 1985, the authorities would in any event have no alternative but to recognize that all such persons are entitled to interest. Accordingly, is it not more reasonable to recognize that a debtor who, as in this case, is well aware of the content of his obligation as well as of the date on which and the place at which he is required to discharge it, does not need to be served with notice to pay? Moreover, the principle dies interpellat pro hornine is recognized by the legal systems of several Member States, for instance Germany (Article 284 (2) of the Civil Code), Italy (Article 1219 of the Civil Code), Greece (Article 341 of the Civil Code), the Netherlands (Article 6.1.8.8. of the Code which is about to enter into force, or Article 1279 of the present Code) and Denmark (Article 3 (1) of Law No 638 of 21 December 1977). Nor does English law preclude the operation of that principle, since Section 35 A of the Supreme Court Act 1981 leaves to the court hearing the proceedings the power to determine, according to the circumstances of the case, the date from which default interest accrues. Therefore, only Belgium, Luxembourg and France adhere to the principle that it is necessary to serve formal notice of default as a preliminary step. However, even the French legislature views with concern the delaying tactics employed by debtors and counters them first of all by calculating default interest on the basis of the bank discount rate and, secondly, by laying down that where judgment is given against the debtor ‘the rate of interest is tobe increased by 5%’ (Article 3 of Law No 75-619 of 11 July 1975). The latter method is a particularly effective deterrent but it does not lie within the powers of the Court of Justice which may instead avail itself of the no less effective but older and more widely recognized rule which renders the mora solvendi automatic. I now turn to the second of the two criteria applied by the Court in its judgments of 15 January 1985 for the purpose of ascertaining the date from which default interest is payable. The Court affirms that its judgment of 20 March 1984 in (Joined Cases 75 and 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509) constitutes a precedent for the application of that criterion. In my view, however, the reference to that case is not relevant. In the Razzouk judgment the Court held that certain provisions of the Staff Regulations were unlawful on the ground that they were contrary to the principle of equal treatment and, in line with that reasoning, it recognized that an official's widower was entitled to a pension. The Court was therefore consistent in ordering the Commission to pay certain sums which were due on the basis of a new right and which, by virtue of that very fact, were uncertain as regards the an and the quantum, and in awarding default interest ‘from the date on which the pension became payable’, if later than the date on which the complaint was received. In these proceedings, as in the cases decided by the Court on 15 January 1985, the sums due can be traced back to an obligation on the part of the institutions which, as I have demonstrated, could not be identified more precisely. Moreover, those sums have been quantified and payable since 15 February 1981, that is to say since the first day on which salaries were paid following the entry into force of Regulation (EEC) No 187/81. It is true that the Court declared that measure void, thereby compelling the Councilto amend retroactively the tables set out therein. However, that consideration is wholly immaterial as regards the effects produced on 15 February, that is to say it does not affect the fact that on that date — and that date alone — officials acquired entitlement to payment of the arrears.