CELEX: 61983CC0174
Language: en
Date: 1985-01-31
Title: Joined opinion of Mr Advocate General Mancini delivered on 31 January 1985. # Frigen Ammann and others v Council of the European Communities. # Officials - Interest on payment of arrears of salary. # Case 174/83. # Suzanne Culmsee and others v Economic and Social Committee. # Officials - Interest on payment of arrears of salary. # Case 175/83. # Alain-Pierre Allo and others v Commission of the European Communities. # Officials - Interest on payment of arrears of salary. # Case 176/83. # P. Agostini and others v Commission of the European Communities. # Officials - Interest on payment of arrears of salary. # Case 233/83. # J. P. Ambrosetti and others v Commission of the European Communities. # Officials - Interest on payment of arrears of salary. # Case 247/83. # René Delhez and others v Commission of the European Communities. # Officials - Interest on payment of arrears of salary. # Case 264/83.

OPINION OF MR ADVOCATE GENERAL MANCINI
      delivered on 31 January 1985 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               For the second time in recent weeks the Court is confronted with a problem which is technically awkward and politically sensitive, namely compensation for the loss occasioned by the delay in the payment of arrears owed to Community officials as a result of adjustments to remuneration and/or to the weighting, in accordance with the rules laid down in Article 65 of the Staff Regulations.
               Since the Opinion which I delivered in the matter on 11 December 1984 tallies in some measure with the solution adopted by the Court in its judgments of 15 January 1985 in Cases 158/79 Roumengous Carpentier and Others v Commission [1985] ECR 43, Joined Cases 543, 532, 534, 600, 618 and 660/79 Amesz and Others v Commission [1985] ECR 56, and Case 737/79 Battaglia and Others v Commission (1985) ECR 72, this time I can concentrate on the few, though by no means negligible, difficulties which this area of the law still seems to raise and on the problems which give rise to those difficulties. I will not therefore consider in detail the plethora of arguments put forward by the applicants. However, I am troubled by that profusion of arguments and I feel it is time to sound the alarm publicly. I am concerned not at the number — which is in any event too high — of actions brought before the Court by officials every year but at the reasons for which their judicial iter has become increasingly confused and at the intolerable situation which has culminated in these proceedings.
               In the first place I would recall that in adopting Articles 90 and 91 of the Staff Regulations, the Community legislature divided the procedure for redressing wrongs in the public service of the Community into two distinct, though mutually complementary, stages. The first stage, namely the administrative procedure, is necessary and is internal to the institutions. The second stage, namely the institution of legal proceedings, may prove to be unnecessary, is subject to specific conditions of admissibility and is exclusively within the jurisdiction of the Court. The ratio inherent in that system, which moreover is common to practically all modern systems of public law, is self-evident, namely to ensure that when a dispute reaches the stage at which legal proceedings are instituted it is devoid of superfluous or ill-considered claims and arguments. In other words, the stage which precedes litigation must act as a filter — a highly selective filter — for cases to be brought before the Court.
               As matters now stand, however, the administrative stage is reduced to a hollow bureaucratic formality. Complaints lodged by officials are no more than preprinted forms. Decisions concerning complaints — which according to Article 90 must duly state the reasons on which they are based — are, if they are adopted at all, laconic and vague. The result, which is there for everyone to see, is an assault on the Court of Justice which, for its clamour and the variety of weapons used, recalls the harassment of stagecoaches by indians in the Wild West. In the six applications now before the Court, for example, every possible kind of relief is sought by the applicants: the annulment of administrative decisions and declarations that specific regulations are inapplicable, the establishment of contractual and non-contractual liability, compensation for the most disparate kinds of loss and the award of unspecified damages. The ground adduced in support — a rare example of legal eclecticism — seem to be relied upon for each of those claims without distinction. For their part, the defendants endeavour to refute the innumerable contentions advanced by the applicants but, having failed to coordinate their positions beforehand, their arguments are repetitive.
               In the face of such an unnatural procedure, the legislature has a duty to intervene. Otherwise the Court will have to act in order to safeguard its role. De iure condendo, for instance, an official should be required to state in detail the reasons on which his complaint is based and silence on the part of the appointing authority should have a different meaning. In other words, silence should henceforth mean that the complaint has been upheld (except where the administration may suspend that outcome by requesting the Court, if there are serious grounds for doing so, to extend the period for notification of the written decision). I have no proposals to submit to the Court. It need only consider the wellknown fact that in most national legal systems administrative law and procedure require that applications submitted by public servants should, even at the stage preceding litigation, be worded as accurately as possible as regards the petitum, the causa petendi and the various conditions of admissibility. Where the grounds stated are insufficent and the application is couched in general terms, as a rule the action is dismissed in limine litis.
               
               Against that background, I now turn to the six applications before the Court.
            
         
               2. 
            
            
               Facts. By judgment of 6 October 1982 in Case 59/81 Commission v Council [1982] ECR 3329, the Court declared void for breach of Article 65 of the Staff Regulations Council Regulation (EEC) No 187/81 of 20 January 1981 (Official Journal 1981 L 21, p. 18, replaced by the version published in Official Journal 1981 L 130, p. 26) which adjusted the salaries and pensions of officials and the weightings applying thereto with effect from 1 July 1980 and 1 April 1980 respectively. The Court also held that ‘the provisions... concerning the adjustment of... salaries... shall continueto have effect until such time as the Council has adopted the measures incumbent upon it in order to ensure compliance with this judgment’. The Council fulfilled that obligation by adopting Regulation (EEC) No 3139/82 of 22 November 1982 (Official Journal 1982, L 331, p. 1) with retroactive effect from the dates which I mentioned. Hence almost two years had elapsed since 25 January 1981, the date on which the regulation declared void by the Court had entered into force.
               The defendants thereupon paid the arrears due for the period from 1 July 1980 to 30 November 1982, but without any interest for the delay in payment. The applications now before the Court are all based on that premise, although the grounds adduced in support differ to a certain extent from one application to another.
               In Cases 174/83, 175/83, 176/83, 233/83 and 247/83 the applicants seek primarily the annulment of the salary slip for December 1982 on the ground that the salary arrears specified therein were not increased by interest. That omission, which is contrary to Articles 62 and 65 of the Staff Regulations, is not imputed to Regulation No 3139/82, which is unquestionably lawful. It is imputed to the defendants. The applicants also claim on the basis of Article 215 of the EEC Treaty that the defendants should be ordered to pay additional interest for the damage which the Council allegedly caused the applicants by deliberately adopting an unlawful regulation (that of 20 January 1981) and by failing to carry out the annual review of salaries within the period prescribed by the Staff Regulations. The damage is alleged to be the loss of purchasing power resulting from the depreciation in the value of the currency during the period of delay. By way of compensation, therefore, the arrears paid belatedly should, according to the applicants, be increased by the interest payable in Belgium (where the rate of interest was raised from 8% to 12% in August 1981) from the dates on which such arrears should have been paid.
               In Case 264/83 the applicants' line of reasoning is different. They also seek the annulment of the salary slip for December 1982 but impute the failure to increase the arrears by the interest payable to Regulation No 3139/82 which — they claim incidentally — should therefore be declared inapplicable within the meaning of Article 184 of the EEC Treaty. The Council adopted that regulation in conformity with the judgment given by the Court in Case 59/81. However, by failing to take account of both the loss of purchasing power resulting from the depreciation in the value of the currency and the default interest on the sums due, the Council allegedly infringed Articles 62 and 65 of the Staff Regulations and the principle of equal treatment. The applicants therefore claim default interest from the dates on which the defendants should have paid the arrears and compensation for the loss of purchasing power. Finally, the applicants leave the calculation of the interest and of the compensation to the discretion of the Court.
            
         
               3. 
            
            
               The defendants raised various objections of inadmissibility based on different grounds against the six applications submitted. During the proceedings, however, they declined to maintain certain of those objections, whilst leaving others to the discretion of the Court. Nor can it be said, in the light of the case-law of the Court (which moreover was correctly citedby the applicants), that their compliant attitude was unjustified. In one case, however, a more complex issue is involved. I am referring to the objection raised by the Commission in relation to the application in Case 264/83.
               In itself, the ground for the objection is simple. It is the failure by the applicants to submit their applications to the Court within the three-month period prescribed by Article 91 of the Staff Regulations. The problems involved stem from the applicants' reply. They maintain that although they are employed by the Commission in places situated in different countries, they acted together from the outset by submitting standard complaints followed by a single application for the annulment of the same measure on the same grounds directed against the same institution. In other words, theirs is a collective action which is not only justified on grounds of expediency (its purpose being to avoid unnecessary litigation and to ensure the proper administration of justice) but is also unquestionably legitimate. The factors which militate in favour of its admissibility are, in their view, the absence of rules prohibiting collective actions and the case-law of the Court, which permits applications submitted by a number of natural and legal persons to be treated as one where in their conclusions the parties refer ‘to identical measures or to measures which concern them all equally’ (judgment of the Court of 14 July 1965 in Joined Cases 18 and 19/64 Alvino and Others v Commission [1965] ECR 789.
               The applicants go on to state that ‘since consideration of the question of admissibility, as regards in particular compliance with the period prescribed for the initiation of proceedings, relates to the application itself and not to the applicant, the view may be taken that where the application has been lodged by some applicants within the prescribed period, it is admissible as a whole’. In their view it is common ground in thiscase that the application was lodged within the period prescribed by the Staff Regulations not merely by some applicants but by the majority and its admissibility as regards the entire group of applicants cannot therefore be challenged.
               That syllogistic argument must be rejected. Its main premise — the admissibility of collective applications before the Court of Justice — is correct. However, its secondary premise, namely the contention that the collective nature of the application remedies individual infringements of the conditions of admissibility, is incorrect. I would refer to the view which I expressed in an earlier case. In my Opinion in Case 50/84 Bensider and Others w Commission [1984] ECR 2247, I stated that ‘there is no doubt that where several applications are connected, there is procedural unity, in other words the applications are dealt with and discussed jointly. But that does not affect their independent nature: there is evidence that... the procedural positions of the various applicants are ... independent. Thus, no ground for discontinuance of the proceedings which arises with respect to one of the applicants (for example, death or ... abandonment of the proceedings) affects the position of the others’.
               In my view, the same principles are applicable to the present case. Even in a collective application the position of each applicant in relation to the contested measure does not extend to the others, whether that position is favourable (as where the application was lodged in due time) or unfavourable (as where there is a supervening incapacity to continue the proceedings). From that point of view, therefore, the application in question may be seen as a set of independent actions brought by a number of persons acting together. Furthermore — I say this in passing — the applicants' representatives seem, if not to be thinking along those lines, at least to be acting as if they were. For reasons into which I prefer not to inquire they asked each applicantto sign a separate power of attorney although, on the basis of their argument, a single power signed by all the applicants would have been sufficient.
               In my view the second argument put forward by the applicants is no more plausible than the first. They contend that the Court must, in order to determine whether their application is admissible, take account of the reasons which led them to act together, namely to avoid unnecessary litigation and to ensure proper administration, and of the fact that they work at different places of employment. The reasons, whether right or wrong, for which the collective application was submitted do not make it any more or less capable of remedying the defects which vitiate the procedural position of one or other of the applicants.
               As a matter of principle, therefore, the action brought in Case 264/83 should be regarded as inadmissible in the case of those applicants who did not submit the application within the period prescribed by the Staff Regulations. At this juncture, however, I wish to state that, in spite of a request from the Court, the parties failed to provide the information needed to identify precisely which applicants lodged their applications out of time. Instead, in their replies the parties either contradicted themselves or pleaded excuses which are, so say the least, unusual. This applies first and foremost to the defendant. In raising its objection, it stated that of the 302 applicants only one (Mr H. C. Herold) had lodged his application within the prescribed period. In reply to the Court's request for information, however, the defendant acknowledged that following a ‘detailed examination’ it had been able to ascertain that ‘the majority of the applicants’ had submitted their applications within the period. Only 25 applicants were out of time, whilst in the case of the other two groups the inadmissibility of their applications was evidenced, if not by firm proof, by presumptions based on the dates on which the applicants concerned were notified of the rejection of their complaints.
               For their part the applicants challenge those dates but are unable to specify alternative dates and therefore abandon any attempt to establish that the applications are admissible. After pointing out that virtually all the decisions on the complaints were notified to them during the summer recess (between 6 and 24 July 1983), they state that ‘it is impossible... to ascertain the individual position of each official. In order to conduct such an inquiry it would be necessary to interview all the applicants personally and there is no certainty that they would remember the precise date on which they received the decision rejecting their complaint’.
               In those unusual or, better still, paradoxical circumstances I consider that:
               
                        (a)
                     
                     
                        since it is necessary to observe in any event the fundamental principle that the time-limits prescribed by Articles 90 and 91 of the Staff Regulations ‘are a matter of public policy and are not subject to the discretion of the parties or the Court’ (judgment of 12 July 1984 in Case 227/83 Moussis v Commission [1984] ECR 3133);
                     
                  
                        (b)
                     
                     
                        having regard in particular to the fact that under Article 91 (2) of the Staff Regulations ‘an appeal to the Court... shall lie only if... the complaint has been rejected by express decision or by implied decision’ and if it was submitted within the prescribed period;
                     
                  
                        (c)
                     
                     
                        in view of the fact that in this case it is impossible to ascertain the dates from which time started to run for the submission of applications, owing to the implied and express rejection in rapid succession of hundreds of complaints, and that all the applicants must therefore be given the benefit of the doubt;
                     
                  I must regrettably conclude that the application in Case 264/83 should be declared admissible.
               Amongst the other objections of inadmissibility raised by the defendants, the first relates to all the applications and is based on the view that it is impossible to annul salary slips which are — so the argument goes — merely measures implementing Regulation No 3139/82. The second objection relates exclusively to the secondary claim for annulment on grounds of illegality put forward by the applicants in Case 264/83. That claim, as the defendant points out, seeks the annulment of the measure in question, although the applicants have not complied with either the procedural requirements or the period prescribed for that purpose by Article 173 of the EEC Treaty.
               As I said earlier, those arguments are devoid of substance and have long since been rejected by the Court. I will confine myself to citing the judgment of 19 January 1984 in Case 262/80 Andersen and Others v Parliament [1984] ECR 195. There the Court held:
               
                        (a)
                     
                     
                        that ‘the salary statement... may constitute a measure adversely affecting [an official] and be the subject of ... an action. The fact that the institution concerned is only applying the regulations in force is irrelevant in that respect’;
                     
                  
                        (b)
                     
                     
                        that ‘Article 184 of the EEC Treaty gives expression to a general principle conferring upon any party to proceedings the right to challenge incidentally, with a view to obtaining the annulment of a decision addressed to him, the validity of the provisions of regulations which form the legal basis thereof’.
                     
                  
         
               4. 
            
            
               I now turn to the substance of the case. As the Court is aware, the applicants claim that the sums paid to them after a delay of almost two years should be increased by default interest and by compensatory interest. The claims are therefore within the scope of the law on pecuniary obligations, that is to say a branch of private law which is in itself highly complex (‘the peak district of the law of obligations’, as a German civil law specialist defined it) and is rendered even more so by the monetary instability which characterizes contemporary economies. The legal system of the Community does not contain any provisions regulating this specific area. However, certain provisions of the Staff Regulations can, if read with an open mind, help to resolve the problem in question.
               The problem may be summarized in the following manner: is there a rule conferring entitlement to the payment of interest? If so, how and when does such entitlement arise? The applicants contend that a complete answer to those questions may be found in Articles 62 and 65 of the Staff Regulations. However, that contention is unacceptable.
               Those two provisions indicate the elements (basic salary, family allowances and so on) which an official's remuneration comprises (Article 62) and the conditions in which the Council is obliged to review them and to adjust the weighting (Article 65). There is not the slightest connection between those elements and the contested interest, which is claimed on account of the delay in payment of the sums due and not by any means on the ground that those sums were erroneously calculated. Under Articles 62 and 65 the Council is required only to quantify the level of remuneration. However, it may not, at least in that context, (I say ‘at least’ because in other circumstances there is nothing to prevent the Council from doing so) lay down in addition detailed rules governing the payment of remuneration in the event of delay. In other words, in that regard the Council acts as a legislative body, not as a debtor.
               
               Similar considerations apply in relation to the natural and legal persons who are responsible under the Staff Regulations for the payment of salaries. Since Articles 62 and 65 lay down the manner in which remuneration is to be calculated and not the manner in which it is to be paid, those provisions certainly cannot serve as a basis for the proposition that the Community authorities are under an obligation, in the event of a delay in payment, to pay additional interest. That is not all. When officials are not paid on time, the authorities not only must not, but also cannot, adjust the figures fixed by the Council. That is borne out, in my view, by Article 63 of the Staff Regulations which provides that ‘remuneration shall be expressed in Belgian francs. It shall be paid in the currency of the country in which the official performs his duties’.
               That provision clearly makes the Community's obligations regarding the payment of remuneration subject to the principle of nominal value. The manner in which that rule operates is well known: if on 15 February 1981, A was under an obligation to pay B BFR 1000, today A still owes B the same amount. The fact that repayment today entails a delay in relation to the date on which the debt fell due, and the possibility that between February 1981 and now the BFR 1000 may have fallen or increased in value, are wholly immaterial. Tot numeri tot mimmi, now as before, the principle of nominal value prevents time from running or, to be more precise, it shields the debt from the effects of the passage of time.
            
         
               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.
            
         
               6. 
            
            
               I wish to make a final observation. As I said in paragraph 2, the applicants claim, in addition to default interest, compensation for the more serious loss occasioned by the depreciation in the value of the currency during the period of delay. I do not consider it advisable to discuss the nature of the sums involved (known as compensatory interest) or to examine the numerous arguments put forward by the applicants in support of their claim to those sums. Those arguments may be valid in abstract terms, but they carry no weight if their proponents are unable to establish the loss which they claim to have sustained.
               Unlike damage resulting from default, loss through depreciation cannot be recognized ope legis, even where it is connected with a delay in the discharge of a pecuniary obligation. It is necessary to prove such loss and, as I pointed out in my Opinion of 11 December 1984, ‘this is no easy matter. It is not sufficient to produce figures or to cite matters of which judicial notice may be taken ... [a creditor] 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’. No such proof has been furnished either in the written or in the oral procedure.
            
         
               7. 
            
            
               In the light of all the foregoing considerations, I propose that in Joined Cases 174, 175, 176, 233, 247 and 264/83, the Court should:
               
                        (a)
                     
                     
                        annul the applicants' salary slip for December 1982 on the ground that, in implementing Council Regulation No 3139/82, the defendants failed to take account, contrary to Articles 16 (1) and 17 (1) of Annex VII to the Staff Regulations inasmuch as they are referred to in the first paragraph of Article 62 thereof, of the delay in the payment of the sums due under that regulation; and also annul the decisions rejecting the applicants' complaints;
                     
                  
                        (b)
                     
                     
                        order the Council, the Economic and Social Committee and the Commission to pay default interest at the rate of 6% per annum on the salary arrears due under Regulation No 3139/82. Such interest is to be calculated from the dates on which the arrears should have been paid until the date of payment, namely from 15 February 1981 as regards the arrears relating to the second half of 1980 and, as regards the others, from the dates on which they fell due, as provided for by Regulation No 3139/82;
                     
                  
                        (c)
                     
                     
                        for the rest, dismiss the applications;
                     
                  
                        (d)
                     
                     
                        order the parties to bear their own costs since each party has succeeded on some heads and failed on others.
                     
                  
         (
            *1
         )	Translated from the Italian.