Judgment of the Court (First Chamber) of 15 January 1985. - Dino Battaglia v Commission of the European Communities. - Officials - Weighting - Adaptation tardive - Compensation for pecuniary damage. - Case 737/79.



European Court reports 1985 Page 00071



Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS - REMUNERATION - WEIGHTING - LATE ADJUSTMENT - COMPENSATION FOR PECUNIARY DAMAGE - PAYMENT OF INTEREST ON OVERDUE SUMS - POINT AT WHICH INTEREST STARTS TO RUN - DATE OF PRIOR COMPLAINT THROUGH OFFICIAL CHANNELS

( STAFF REGULATIONS , ART . 90 ( 2 ))

Parties

IN CASE 737/79

DINO BATTAGLIA , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES AT THE JOINT RESEARCH CENTRE , ISPRA , VARESE ( ITALY ), REPRESENTED AND ASSISTED BY MARCEL SLUSNY , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF VICTOR BIEL , 18A RUE DES GLACIS ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISERS , JOSEPH GRIESMAR AND JORN PIPKORN , ACTING AS AGENTS , ASSISTED BY DANIEL JACOB , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION IN THE TERMS SET OUT IN THE APPLICANT ' S CONCLUSIONS , IN SO FAR AS THEY RELATE TO COMPENSATION FOR THE DAMAGE CAUSED TO THE APPLICANT ,

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 11 OCTOBER 1979 , MR BATTAGLIA , AN OFFICIAL OF THE COMMISSION EMPLOYED AT THE JOINT RESEARCH CENTRE AT ISPRA , ITALY , BROUGHT AN ACTION UNDER ARTICLE 91 OF THE STAFF REGULATIONS SEEKING THE ANNULMENT OF THE COMMISSION ' S DECISION FIXING HIS REMUNERATION FOR JANUARY 1979 , AND FOR AN ORDER DIRECTING THE COMMISSION TO MAKE GOOD THE DAMAGE SUFFERED BY HIM AS A RESULT OF THAT DECISION .

2 ON 15 DECEMBER 1982 THE COURT DELIVERED AN INTERIM JUDGMENT (( 1982 ) ECR 4497 ) IN WHICH , AFTER FINDING THAT THE APPLICANT ' S SUBMISSION THAT REGULATION NO 3087/78 INFRINGED ARTICLES 64 AND 65 OF THE STAFF REGULATIONS WAS WELL FOUNDED , IT PROCEEDED , FIRST , TO ANNUL THE APPLICANT ' S SALARY STATEMENT FOR JANUARY 1979 IN SO FAR AS IT DID NO MORE THAN GIVE EFFECT TO THE AFORESAID COUNCIL REGULATION AS REGARDS BOTH THE AMOUNT BY WHICH THE WEIGHTINGS WERE ADJUSTED AND THE RETROACTIVITY OF THAT ADJUSTMENT , AND , SECONDLY , TO DECLARE THAT REGULATION TO BE INAPPLICABLE TO THE APPLICANT IN SO FAR AS IT TOOK NO ACCOUNT OF THE COST OF LIVING IN VARESE AND LIMITED THE RETROACTIVITY OF THE WEIGHTING TO 1 JANUARY 1978 . IN THE SAME JUDGMENT THE COURT REQUESTED THE COMMISSION TO REPORT TO IT ON THE MEASURES TAKEN TO COMPLY WITH THAT JUDGMENT AND DECIDED TO DEFER EXAMINATION OF THE CLAIM FOR COMPENSATION FOR PECUNIARY DAMAGE SUFFERED BY THE APPLICANT TO A LATER DATE , IF NECESSARY ; AT THE SAME TIME IT RESERVED THE COSTS .

3 FOLLOWING THAT JUDGMENT , THE COMMISSION SUBMITTED TWO REPORTS , THE SECOND OF WHICH NOTES THE ADOPTION BY THE COUNCIL OF REGULATION NO 3681/83 OF 19 DECEMBER 1983 ( OFFICIAL JOURNAL 1983 L 368 , P . 1 ), ADJUSTING WITH EFFECT FROM 1 JANUARY 1976 THE WEIGHTINGS APPLICABLE TO THE REMUNERATION OF OFFICIALS AND OTHER SERVANTS ASSIGNED TO POSTS IN ITALY , AND FIXING SPECIAL WEIGHTINGS FOR VARESE WITH EFFECT FROM THE SAME DATE . ON THE BASIS OF THAT REGULATION THE COMMISSION CALCULATED AND PAID TO THE APPLICANT ARREARS OF SALARY DURING THE PERIOD FROM THE END OF DECEMBER 1983 TO JANUARY 1984 .

4 AFTER FINDING THAT , NOTWITHSTANDING THE ADOPTION OF THE AFORESAID REGULATION AND THE MEASURES TAKEN BY THE COMMISSION TO IMPLEMENT IT , THE PARTIES HAD NOT MANAGED TO REACH AGREEMENT ON AN OUT-OF-COURT SETTLEMENT OF THEIR DISPUTE , THE COURT DECIDED IN PURSUANCE OF THE JUDGMENTS OF 15 DECEMBER 1982 , TO CONSIDER THE MATTERS LEFT IN ABEYANCE , NAMELY THE CLAIM FOR COMPENSATION FOR PECUNIARY DAMAGE SUFFERED BY THE APPLICANT AND THE QUESTION OF COSTS .

THE CLAIM FOR COMPENSATION FOR THE PECUNIARY DAMAGE SUFFERED BY THE APPLICANT

5 IT SHOULD BE BORNE IN MIND AT THE OUTSET , FOR THE PURPOSE OF CONSIDERING THE CLAIM FOR COMPENSATION FOR THE PECUNIARY DAMAGE SUFFERED BY THE APPLICANT , THAT IN HIS APPLICATION HE ASKED THE COURT TO AWARD HIM AN ADDITIONAL SUM BY WAY OF SALARY TO TAKE ACCOUNT OF THE COST OF LIVING SPECIFIC TO THE PROVINCE OF VARESE BY ORDERING THE COMMISSION TO CALCULATE AND PAY THAT ADDITIONAL SALARY AND , SECONDLY , TO DECLARE AND ADJUDGE THAT THE OUTSTANDING SUMS WERE TO BE SUPPLEMENTED BY INTEREST AT THE STATUTORY AND/OR CUSTOMARY RATES APPLICABLE IN ITALY .

PRINCIPAL CLAIM ( ARREARS OF REMUNERATION )

6 IN VIEW OF THE BACK-PAYMENTS MADE BY THE COMMISSION UNDER REGULATION NO 3681/83 , IT SHOULD BE HELD , IN SO FAR AS IS NECESSARY , THAT THE APPLICANT ' S PRINCIPAL CLAIM , INASMUCH AS IT RELATES TO ARREARS OF REMUNERATION PAYABLE AS FROM 1 JANUARY 1976 , NO LONGER HAS ANY PURPOSE .

SUBSIDIARY CLAIM ( INTEREST )

7 AS STATED ABOVE , THE APPLICANT FURTHER REQUESTED THE COURT TO INCREASE THE SUMS OWED IN RESPECT OF THE MAIN CLAIM OF INTEREST AT THE STATUTORY AND/OR CUSTOMARY RATES APPLICABLE IN ITALY .

DEFAULT INTEREST

8 THE APPLICANT ASKS FOR INTEREST TO BE AWARDED TO HIM IN RESPECT OF THE DELAY IN SETTLING HIS PECUNIARY CLAIMS AND AT A RATE WHICH MAKES ALLOWANCE FOR CURRENCY DEPRECIATION WHICH IS ESPECIALLY ACUTE IN ITALY . THE COMMISSION CONTENDS , PRIMARILY , THAT NO INTEREST IN RESPECT OF DELAY IS PAYABLE IN THE CASE OF SUMS PAID TO MEMBERS OF STAFF , WITHOUT ANY FAULT ON THE PART OF THE ADMINISTRATION , ON THE BASIS OF LEGISLATIVE MEASURES ADOPTED PURSUANT TO THE STAFF REGULATIONS ; IN THE ALTERNATIVE IT CONTENDS THAT SUCH INTEREST FALLS TO BE PAID AT AN ANNUAL RATE OF 6% COMMENCING FROM THE COURT ' S JUDGMENT OF 15 DECEMBER 1982 , OR AT THE EARLIEST FROM 26 MARCH 1979 , ON WHICH DATE THE APPLICANT HAD LODGED HIS COMPLAINT WITH THE COMMISSION UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . AT THE HEARING THE COMMISSION STATED THAT , EVEN IF THE COURT WERE TO AWARD THE APPLICANT INTEREST IN RESPECT OF DELAY WITH EFFECT FROM THE DATE ON WHICH HE HAD SUBMITTED HIS COMPLAINT TO THE COMMISSION , IT WOULD EXTEND THE ARRANGEMENT TO COVER ALL THE APPLICANTS .

9 IN RESPONSE TO THE COMMISSION ' S ARGUMENT THE APPLICANT CONTENDS , PRIMARILY , THAT THERE WAS A SERIOUS WRONGFUL OMISSION ON ITS PART IN THE PERFORMANCE OF ITS FUNCTIONS , INASMUCH AS , ALTHOUGH IT WAS AWARE OF THE LEGAL SITUATION TO WHICH THE PARTIES CONCERNED HAD OBJECTED , IT TOOK NO ACTION TO REMEDY THAT SITUATION .

10 HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE , IN PARTICULAR THE EXCESSIVE SLOWNESS OF THE COMMUNITY INSTITUTIONS IN DISCHARGING THEIR DUTIES , AND TO ITS PREVIOUS DECISIONS , ESPECIALLY ITS JUDGMENT OF 20 MARCH 1984 ( RAZZOUK AND BEYDOUN V COMMISSION , JOINED CASES 75 AND 117/82 , ( 1984 ) ECR 1509 ), WHICH WAS CONCERNED , AS IS THE PRESENT CASE , WITH SUMS OWED BY VIRTUE OF THE STAFF REGULATIONS , THE COURT FIXES THE INTEREST IN RESPECT OF THE DELAY IN SETTLING THE APPLICANT ' S PECUNIARY CLAIM AT 6% PER ANNUM , SUCH INTEREST TO RUN FROM 26 MARCH 1979 , THE DATE OF THE APPLICANT ' S COMPLAINT TO THE COMMISSION UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AS REGARDS THE ARREARS WHICH WERE DUE ON THAT DATE , OR , IN THE CASE OF ARREARS WHICH BECAME PAYABLE AFTER THAT DATE , FROM THE DATES ON WHICH THEY DID SO .

COMPENSATORY INTEREST

11 IN HIS OBSERVATIONS IN REPLY TO THE COMMISSION ' S REPORTS THE APPLICANT FURTHER REQUESTS THAT THE COMMISSION BE ORDERED TO PAY COMPENSATORY INTEREST TO MAKE GOOD THE DAMAGE SUFFERED BY HIM AS A RESULT OF THE DEPRECIATION OF THE ITALIAN LIRA DURING THE PERIOD PRIOR TO THE PAYMENT OF THE ARREARS OF REMUNERATION .

12 THE COMMISSION DISPUTES NOT ONLY THE SUBSTANCE OF THAT CLAIM BUT ALSO ITS ADMISSIBILITY , POINTING OUT THAT IT MANIFESTLY EXCEEDS THE DEMANDS MADE BY THE APPLICANT IN HIS APPLICATION .

13 THE ARGUMENT TO THE EFFECT THAT THE CLAIM IS INADMISSIBLE MUST BE UPHELD . THAT CLAIM IS A FRESH CLAIM AND , AS SUCH , MUST BE REGARDED AS BROUGHT OUT OF TIME AND HENCE AS INADMISSIBLE BY VIRTUE OF ARTICLE 19 OF THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES AND ARTICLE 38 OF THE RULES OF PROCEDURE WHICH PRECLUDE THE INTRODUCTION OF FRESH CLAIMS DURING THE PROCEEDINGS .

Decision on costs

COSTS

14 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

15 SINCE THE COMMISSION HAS BEEN UNSUCCESSFUL IN ALMOST ALL ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

FURTHER TO ITS JUDGMENT OF 15 DECEMBER 1982 , HEREBY :

1 . DECLARES THAT THE APPLICANT ' S CLAIM FOR ARREARS OF REMUNERATION NO LONGER HAS ANY PURPOSE INASMUCH AS IT RELATES TO ARREARS PAYABLE AS FROM 1 JANUARY 1976 ;

2.ORDERS THE COMMISSION TO PAY DEFAULT INTEREST AT THE RATE OF 6% PER ANNUM ON THE ARREARS OF REMUNERATION WHICH IT PAID IN PURSUANCE OF REGULATION NO 3681/83 , SUCH INTEREST TO BE CALCULATED WITH EFFECT FROM 26 MARCH 1979 , THE DATE OF THE APPLICANT ' S COMPLAINT , AS REGARDS THE AMOUNTS OF WHICH WERE ARREARS DUE ON THAT DATE , OR , IN THE CASE OF ARREARS WHICH BECAME PAYABLE AFTER THAT DATE , FROM THE DATES ON WHICH THEY DID SO ;

3.FOR THE REST , DISMISSES THE APPLICATION ;

4.ORDERS THE COMMISSION TO PAY THE COSTS .