61986J0021

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OFFICIALS - REMUNERATION - RECLASSIFICATION PURSUANT TO A COURT JUDGMENT - ARREARS OF SALARY - ENTITLEMENT TO DEFAULT INTEREST

ONCE THE COURT HAS DELIVERED A JUDGMENT ANNULLING THE DECISION ON THE CLASSIFICATION OF AN OFFICIAL, AND THE ADMINISTRATION, IN GIVING EFFECT TO THAT JUDGMENT, NO LONGER ENJOYS ANY MEASURE OF DISCRETION, PROPER COMPLIANCE WITH THE JUDGMENT DEMANDS THAT, IN ORDER TO PUT THE PERSON CONCERNED BACK IN THE POSITION WHICH SHOULD LAWFULLY HAVE BEEN HIS, ACCOUNT BE TAKEN OF THE LOSS WHICH HE HAS INCURRED ON ACCOUNT OF THE FACT THAT HE WAS RESTORED TO THAT POSITION ONLY AFTER AN APPRECIABLE LAPSE OF TIME AND THAT HE COULD NOT HAVE THE USE OF THE SUMS TO WHICH HE WAS ENTITLED ON THE DATES ON WHICH THEY WOULD NORMALLY HAVE FALLEN DUE . TO THAT END SUCH A PERSON SHOULD BE AWARDED DEFAULT INTEREST AT A FLAT RATE OF 8% PER ANNUM, RUNNING FROM THE DATE ON WHICH EACH INSTALMENT BECAME DUE UNTIL FINAL SETTLEMENT .

IN CASE 21/86

EURIDIKI SAMARA, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN STRASSEN, REPRESENTED BY VICTOR BIEL, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER' S CHAMBERS, 18A RUE DES GLACIS,

APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY MARIE WOLFCARIUS, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GEORGIOS KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,

DEFENDANT,

APPLICATION FOR THE PAYMENT OF INTEREST ON DIFFERENCES IN SALARY,

THE COURT ( FIRST CHAMBER )

COMPOSED OF : F . SCHOCKWEILER, PRESIDENT OF THE CHAMBER, G . BOSCO AND R.*JOLIET, JUDGES,

ADVOCATE GENERAL : SIR GORDON SLYNN

REGISTRAR : B . PASTOR, ADMINISTRATOR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 10 DECEMBER 1986,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 22 JANUARY 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 24 JANUARY 1986, MRS EURIDIKI SAMARA, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION FOR THE ANNULMENT OF THE COMMISSION' S IMPLIED DECISION REJECTING HER COMPLAINT OF 21 JUNE 1985 IN WHICH SHE HAD SOUGHT PAYMENT OF INTEREST ON THE SUMS EQUAL TO THE ARREARS OF SALARY PAID FOR THE PERIOD FROM 1 JANUARY 1983 TO 31 MAY 1985 AS A RESULT OF HER RECLASSIFICATION, AND ALSO FOR AN ORDER THAT THE COMMISSION MUST PAY INTEREST AT THE RATE OF 9% PER ANNUM, RUNNING FROM THE DATE ON WHICH EACH INSTALMENT BECAME DUE .

2 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS AND PROCEDURE, AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

ADMISSIBILITY

3 THE COMMISSION CONTESTS THE ADMISSIBILITY OF THE APPLICATION ON THE GROUND THAT THE ACT ADVERSELY AFFECTING THE APPLICANT WAS NOT THE DISPUTED CREDIT STATEMENT OF 13 JUNE 1985 TRANSFERRING TO HER THE ADDITIONAL AMOUNTS OWED AS SALARY FOLLOWING HER RECLASSIFICATION IN GRADE C*3, STEP 3, BUT RATHER THE ORIGINAL DECISION ON CLASSIFICATION OF 16 FEBRUARY 1983, WHICH WAS ANNULLED BY THE JUDGMENT OF THE COURT OF 15 JANUARY 1985 ( CASE 266/83 SAMARA V COMMISSION (( 1985 )) ECR 189 ). IN HER COMPLAINT AGAINST THAT DECISION, HOWEVER, THE APPLICANT HAD NOT REQUESTED PAYMENT OF INTEREST ON THE SUMS WHICH SHE CLAIMED AS ARREARS OF SALARY RESULTING FROM THE RECLASSIFICATION WHICH SHE SOUGHT IN A HIGHER STEP .

4 THAT ARGUMENT CANNOT BE ACCEPTED . IN THE PROCEEDINGS WHICH CULMINATED IN THE JUDGMENT OF 15 JANUARY 1985, THE APPLICANT CONFINED HERSELF TO CONTESTING THE LEGALITY OF HER CLASSIFICATION WITHOUT MAKING ANY CLAIM FOR ANY FURTHER PAYMENT BY WAY OF SALARY . IT FOLLOWS THAT SHE CANNOT BE REGARDED AS HAVING FORFEITED THE RIGHT TO CONTEST IN SUBSEQUENT PROCEEDINGS THE MANNER OF CALCULATION AND PAYMENT, AND TO BRING BEFORE THE COURT THE MEASURES ADOPTED BY THE COMMISSION IN ORDER TO COMPLY WITH THE JUDGMENT .

SUBSTANCE

5 THE APPLICANT TAKES THE VIEW THAT PURSUANT TO THE JUDGMENT OF 15 JANUARY 1985 SHE SHOULD HAVE BEEN CLASSIFIED IN GRADE C*3, STEP 3 AS FROM HER APPOINTMENT BY THE DECISION OF 16 FEBRUARY 1983, WITH THE CONSEQUENT ENTITLEMENT TO RECEIVE HER MONTHLY SALARY ON THE DATES WHEN IT NORMALLY BECAME DUE . SINCE NO SUCH PAYMENT WAS EFFECTED AND THE DIFFERENCE BETWEEN THE SALARY TO WHICH SHE WAS ENTITLED AND THE SALARY ACTUALLY RECEIVED WAS PAID TO HER BELATEDLY, SHE CLAIMS TO HAVE INCURRED A LOSS BY NOT HAVING THE USE OF THOSE SUMS AS SOON AS THEY FELL DUE, AND THAT THIS LOSS SHOULD BE MADE GOOD BY THE AWARD OF DEFAULT INTEREST . SHE MAINTAINS THAT IT IS ESTABLISHED IN ALL THE COUNTRIES OF THE COMMUNITY THAT SUMS WHICH HAVE FALLEN DUE BEAR INTEREST WITHOUT THERE BEING ANY NEED TO PROVE THE LOSS ACTUALLY INCURRED .

6 IN ANSWER TO THAT CLAIM THE COMMISSION CONTENDS THAT DEFAULT INTEREST CANNOT FALL DUE EXCEPT IN CASES WHERE BELATED PAYMENT IS THE RESULT OF A WRONGFUL ACT OR OMISSION, AND EVEN THEN SUCH INTEREST RUNS ONLY FROM THE TIME AT WHICH IT WAS REQUESTED . WITH REGARD TO ITS OWN CONDUCT, THE COMMISSION TAKES THE VIEW THAT IT CANNOT BE CONSIDERED TO HAVE BEEN AT FAULT, SINCE THE COURT ITSELF, IN ITS JUDGMENT OF 15*JANUARY 1985, CONCEDED THAT THE MISTAKEN CLASSIFICATION MADE BY THE DECISION OF 16 FEBRUARY 1983 HAD COME ABOUT IN AN "AMBIGUOUS CONTEXT", SO THAT THE ERROR COMMITTED SHOULD BE CONSIDERED EXCUSABLE .

7 IN THAT CONNECTION IT IS SUFFICIENT TO OBSERVE THAT IN THIS CASE THE COMMISSION WAS UNDER AN OBLIGATION TO ADOPT THE MEASURES NECESSARY FOR COMPLIANCE WITH THE JUDGMENT OF THE COURT OF 15 JANUARY 1985 . SUCH COMPLIANCE WAS INTENDED TO EXPUNGE THE ILLEGAL ACT COMMITTED AND TO PUT THE APPLICANT BACK IN THE POSITION IN WHICH SHE SHOULD HAVE BEEN HAD THE PROVISIONS OF THE STAFF REGULATIONS BEEN CORRECTLY APPLIED . CONSEQUENTLY, COMPLIANCE INVOLVED RECLASSIFYING THE APPLICANT IN THE SALARY STEP ENTAILED BY A PROPER APPLICATION OF ARTICLE 32 OF THE STAFF REGULATIONS AND PAYING HER THE CORRESPONDING SALARY WITH EFFECT FROM THE DATES ON WHICH IT NORMALLY FELL DUE, SO AS TO MAKE GOOD THE LOSS WHICH HAD RESULTED FROM THE MISAPPLICATION OF THE STAFF REGULATIONS .

8 ONCE IT WAS DECIDED THAT ARTICLE 32 OF THE STAFF REGULATIONS WAS APPLICABLE, AND NOT ARTICLE 46 AS THE COMMISSION HAD CLAIMED, THE DETERMINATION OF THE SALARY STEP AND THE AMOUNT INVOLVED FOLLOWED AS A NECESSARY CONSEQUENCE . INDEED, IN THE PROCEEDINGS WHICH CULMINATED IN THE JUDGMENT OF 15 JANUARY 1985, THE COMMISSION HAD ALREADY ADMITTED THAT, IF ARTICLE 32 WERE APPLICABLE, THE APPLICANT WOULD HAVE TO BE CONSIDERED TO HAVE EXPERIENCE JUSTIFYING HER CLASSIFICATION IN STEP 3 OF GRADE C*3 . THE COMMISSION HAD THUS ALREADY EXHAUSTED THE DISCRETION VESTED IN IT BY THE SECOND PARAGRAPH OF ARTICLE 32 .

9 THAT BEING SO, PROPER COMPLIANCE WITH THE JUDGMENT DEMANDS THAT, IN ORDER TO PUT THE APPLICANT BACK IN THE POSITION WHICH SHOULD LAWFULLY HAVE BEEN HERS, ACCOUNT BE TAKEN OF THE LOSS WHICH SHE HAS INCURRED BY REASON OF THE FACT THAT SHE WAS RESTORED TO THAT POSITION ONLY AFTER AN APPRECIABLE LAPSE OF TIME AND THAT SHE COULD NOT HAVE THE USE OF THE SUMS TO WHICH SHE WAS ENTITLED ON THE DATES ON WHICH THEY WOULD NORMALLY HAVE FALLEN DUE . TO THAT END THE APPLICANT SHOULD BE AWARDED DEFAULT INTEREST AT A FLAT RATE OF 8% PER ANNUM, RUNNING FROM THE DATE ON WHICH EACH INSTALMENT BECAME DUE UNTIL FINAL SETTLEMENT .

COSTS

10 PURSUANT TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS IT SHOULD BE ORDERED TO PAY THE COSTS .

On those grounds,

THE COURT ( First Chamber )

hereby :

( 1 ) Annuls the implied decision of the Commission rejecting the applicant' s complaint of 21 June 1985;

( 2 ) Orders the Commission to pay the applicant default interest at 8% per annum on the sums equal to the arrears of salary paid for the period from 1 January 1983 to 31 may 1985, running from the date upon which each instalment became due until final settlement;

( 3 ) Orders the Commission to pay the costs .