C-21/86

SAMARA v COMMISSION

OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN delivered on 22 January 1987

My Lords, complaint under Article 90 (2) of the Staff Regulations. No decision having been given in response to it, it has been treated as implicitly rejected. She now claims the like Mrs Samara, who had been an official in interest which she says, since the sums were Grade C 5, Step 3, was appointed as an payable in the Grand Duchy of established official of the Commission in Luxembourg, should be at the rate of 9 % Grade C 3, Step 1, with effect from 1 pursuant to a Grand Ducal Regulation of 22 January 1983, following an open compe­ November 1984. tition in which she came first. Her request for reclassification and her complaint as to the Commission's refusal on 16 February 1983 to reclassify her were rejected by decision of 5 August 1983. Pursuant to her application, on the basis that she should have been appointed to a higher step in the grade, the Court annulled both those The Commission's first reply is that this decisions by its judgment of 15 January claim is inadmissible. If she wanted interest 1985 in Case 266/83. The Commission was she should have asked for it in the first told that it 'must reconsider the applicant's proceedings when she challenged the 1983 position and apply the criteria laid down in decision as to classification. She did not do Article 32 of the Staff Regulations'. so; the Court did not order that interest be paid on any outstanding salary found to be due; she is now out of time and cannot raise in these proceedings a matter which she could have canvassed in the first application.

annulment and then to come a second time claims of interest for delay in payment of a to argue that the Commission has not fully debt on the one hand, and claims for delay given effect to the Court's decision. If the in the performance of another obligation, Commission had retroactively regraded her which are more in the nature of a claim for but not paid her the salary difference, she damages, on the other. Where there is a could have brought proceedings for its claim for delayed payment of a debt, the recovery. Her claim for interest, if well Court has sometimes required a serious founded, is in pari materia. error to have been made which went beyond a mere mistake in calculation (Case 3/66 Alfieri v Parliament [1966] ECR 437; Case 106/76 Deboeck v Commission [1977] ECR 1623 and Case 14/77 Van der Branden v Commission [1977] ECR 1683). In other Whether she is entitled to interest on those cases interest has been awarded for a monies in respect of back salary until the wrongful failure to pay without any date they were paid is a more difficult particularly serious error being required to question, there being nothing in the Staff be established. Moreover, interest has Regulations which expressly deals with it. sometimes been awarded only from the date of a complaint under the Staff Regulations, or from the institution of proceedings before the Court or from the date the payments fell due if later than such a complaint or application (e.g. Case 58/75 She puts her case simply. She should all Sergy vCommission [1976] ECR 1139; Case along have been classified in Grade 3, Step 9/81 Williams v Court of Auditors [1982] 3, and paid the appropriate salary. She was ECR 3301). This has not, however, always not paid it on the dates it should have been been so. Thus in Case 115/76 Leonardini v paid. She was thus kept out of her money Commission [1978] ECR 735 default interest and lost the use of it; conversely the was awarded for the late payment of a Commission had the use of it by not paying disablement award, such interest to run not her until 13 June 1985. She should be from the date of the complaint in 1976, but compensated for the loss due to the delay in from the date in 1968 when the award with payment. reasonable diligence should have been assessed. Moreover, the rate of interest has varied from time to time according to circumstances.

In the absence of Community legislative provisions as to interest, and of a rule If the debt did not fall due until 23 April common to Member States, the question has 1985, when she was reclassified with retro­ to be decided as a matter of principle within spective effect, then it may be arguable that the discretion given to the Court in staff no interest could run before that date. For cases under Article 91 of the Staff Regu­ my part I would not accept that argument. lations, under which, in 'disputes of a The Commission was required to consider financial character the Court of Justice shall her position and in effect to put right what have unlimited jurisdiction'. had been wrongly done. To put her in the position she should have been in (and to comply fully with the Court's judgment), she should have been paid the differential plus interest for the delayed payment while she was kept out of her money.

Although there may well be cases where justice is satisfied by limiting the interest to the period beginning with the date of the complaint under the Staff Regulations (e. g. where what is really claimed is in the nature It seems to me that different considerations of damages), it does not seem to me to be arise where an error is made in legislation equitable so to limit it in a case like the by the Council or the Commission, and present where a liquidated sum is demanded where, after its correction following a Court as a debt due and unpaid. Accepting as I do ruling, the error is removed and money is that Mrs Samara was entitled to seek the paid late. This is particularly so if there is an annulment of the erroneous decision as a element of discretion in the amount to be first step, it seems to me that when the awarded. That, as I read it, is the ratio position was rectified she was entitled to ask decidendi in the Court's judgments of 30 for interest for the period of delay. September 1986, of which Case 176/83 Alio and Others v Commission is an example. Moreover, in that case the Court accepted that 'an obligation to pay default interest can arise only where the amount of the principal sum owed is certain or can at least For my part, I would accordingly accept her be ascertained on the basis of established claim for payment of interest in respect of objective factors'. In the present case the each debt as it is treated retrospectively as amount due was certain once the grade was having fallen due. At the least, if, contrary fixed, and in the light of all the objective to my opinion, it is a rule of Community circumstances there really was no scope to law that there must be a 'mise en demeure', appoint Mrs Samara other than in Grade 3, such interest should run from the date of Step 3, once Article 32 of the Staff Regu­ her complaint in Case 266 / 83 , namely from lations was properly applied. Once it is 26 April 1983. accepted that the differential was due retro­ spectively, as a result of the decision of 23 April 1985, then the debt was of a certain amount within the meaning of that decision.