J.M. Mulder, W.H. Brinkhoff, J.M.M. Muskens, T. Twijnstra and Otto Heinemann v Council of the European Union and Commission of the European Communities.
Date: 2000-01-27
47 In that regard, it is apparent from the Court's case-law, particularly its decisions concerning the belated settlement of the remuneration of officials (see, for example, Case 737/79 Battaglia v Commission [1985] ECR 71, paragraph 13, and Case 158/79 Roumengous Carpentier v Commission [1985] ECR 39, paragraph 14) that additional claims seeking the payment of compensatory interest are inadmissible where they are put forward for the first time during the course of the proceedings and, in particular, following delivery of an interlocutory judgment.  That case-law is based on Article 19 of the EC Statute of the Court of Justice and Article 38 of the Rules of Procedure, which preclude the addition of new claims in the course of proceedings, by contrast with Article 42(2) of the Rules of Procedure, which expressly prohibits only the introduction of new pleas in law.
50 It is settled case-law that, in order for an applicant to be able to claim compensatory interest, he must establish non-contractual liability on the part of the defendant (see Kampffmeyer and Others v Commission and Council and Roumengous Carpentier v Commission, cited above, Joined Cases T-17/89, T-21/89 and T-25/89 Brazzelli and Others v Commission [1992] ECR II-293, paragraph 35, and Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 42).
51 However, according to the judgment in Case C-308/87 Grifoni v EAEC [1994] ECR I-341, paragraph 40, compensation for loss in the context of non-contractual liability is intended so far as possible to provide restitution for the victim.  Accordingly, since the criteria giving rise to non-contractual liability are fulfilled, the adverse consequences resulting from the lapse of time between the occurrence of the event causing the damage and the date of payment of the compensation cannot be ignored, despite the abovementioned express statement by the applicant, in so far as it is appropriate to take into account the fall in the value of money.
63 As previously noted in paragraph 51 of this judgment, it is settled case-law that compensation for the loss suffered is intended so far as possible to provide restitution for the victim of the unlawful conduct of the Community institutions (Grifoni v EAEC, cited above, paragraph 40). In order to restore victims to the situation in which they would have found themselves if the harmful act had not been perpetrated, it is primarily the damage actually suffered which must be made good.  Thus, loss of earnings must be assessed, so far as possible, on the basis of the individual data and figures reflecting the actual situation of each applicant and of his farm.
214 The analysis of the various claims contained in paragraphs 41 to 45 of this judgment shows that the applicants are seeking compensatory interest in respect of the period prior to the date of delivery of the interlocutory judgment.  That interest is intended to make up for the losses suffered by them as a result of, first, the fall in the value of money since the damage materialised and, second, their inability to reap the profits which they might have earned in the normal course of events from milk production.  In that respect, they maintain that the interest in question is to be calculated from the date on which the damage arose, in accordance with the rates applying to State loans in the Netherlands, namely: 7.91% for the 1984/1985 marketing year, 7.08% for the 1985/1986 marketing year, 6.36% for the 1986/1987 marketing year, 6.30% for the 1987/1988 marketing year, 6.39% for the 1988/1989 marketing year, 7.66% for the 1989/1990 marketing year, 8.94% for the 1990/1991 marketing year and 8.63% for the 1991/1992 marketing year.
216 As to the damage caused by the unavailability of profits from milk production, it is appropriate to refer, as the Advocate General rightly does in point 105 of his Opinion, to the principle, universally applied in all the Member States and also cited in paragraph 40 of the judgment in Grifoni v EAEC, that full restitution is to be made for the damage suffered.  In accordance with that principle, it is only the damage actually suffered that is to be made good.