26.

Is there an obligation to pay interest under Article 6 of the directive? The Court's case-law which I have discussed above indicates in any event that it is possible under Community law to award interest on account of the time elapsed between the determination by the court of the unlawful act which gives rise to the obligation to pay compensation and therefore certainly as from the judicial decision determining the amount of the damage. But is there also any obligation to that effect? In this connection, the distinction between compensatory and legal interest is important. I shall first consider legal interest (on which the Industrial Tribunal made no pronouncement). In my view, it follows from the requirement for judicial protection laid down in Article 6 of the directive — which, according to the Court's present case-law, has direct effect in any event vis-à-vis the Member States; section 5, above — there is an obligation to pay legal interest in full as from the judgment in which the first court determined the amount of the damage sustained, in so far as that judgment is subsequently definitively confirmed. As far as that type of interest is concerned, it follows that no statutory upper limit can be relied upon in order to limit the amount of damage. As the Court held in the judgment in Johnston (cited above in section 5), ‘the requirement of judicial control stipulated by [Article 6 of the directive] reflects a general principle of law [to the effect that] all persons have the right to obtain an effective remedy in a competent court’against discrimination prohibited by the directive. To my mind, that principle of Community law also requires that, in so far as the national legal order gives people a right of appeal or other legal remedies against the decision of the first court, they must be able to avail themselves of those avenues without being disadvantaged financially. This implies that they should be compensated for the delay in the payment of the compensation resulting from the appeal or other legal remedies. Otherwise it would mean that a party claiming compensation would be penalized financially if he decided to appeal against a judicial decision not affording him satisfaction and he might even be induced not to take such a step for reasons unrelated to the law. Otherwise it would also mean that the party ordered to pay compensation in the proceedings at first instance would be encouraged to appeal in any event in view of the financial advantage which he might obtain thereby. The above is particularly relevant in the present case. Already in the judgment of 26 February 1986 the Court interpreted Article 5(1) of the directive to the effect that discrimination against Miss Marshall could be based thereon. As a result, the Court of Appeal remitted the case on 22 July 1986 to the Industrial Tribunal in order to determine the compensation payable. On 21 July 1988 the Industrial Tribunal determined the amount of compensation at UKL 19405. This was subsequently reduced as a result of the Court of Appeal applying the statutory upper limit, in so far as it was not already paid by the Authority (see section 2 above). The present case is concerned with the application of that statutory upper limit. In my view, if it is determined that the upper limit was applied unlawfully, legal interest should certainly be paid on the amount which was wrongfully reduced (unless the damage resulting from the delay in payment is compensated for by a subsequent court decision or in some other way) as from the date of the Industrial Tribunal's decision.