Opinion of Mr Advocate General Mancini

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.

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.

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.

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.

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.

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.

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:

1 Translated from the Italian.