delivered on 1 April 1987 (*1)

Mr President,

Members of the Court,

1.On 28 December 1981 nine officials employed at the Joint Research Centre, Ispra (Italy), brought an action (in Case 323/81) for the annulment of their salary statements for February and March 1981, which the Commission had calculated on the basis of Regulation (EEC) No 397/81 of 10 February 1981 (Official Journal 1981, L 46, p. 1). Jan Amesz, Rolf Bauch, Jakob Flamm, Hans Hoffmann, Helmut Knoeppel, Henricus Nijman, Anton Birke, Helmut Henrichs and Bernd Weckermann argued, in particular, that, in updating the tables of salaries and other components of remuneration, the Council had fixed the weighting for Italy without taking into account either the price increases established in October 1980 or the considerable difference between the cost of living index for the province of Varese and the same index for Rome. The applicants therefore claimed that the Court should: (a) declare that they were entitled to a remuneration which took account of purchasing power in the province of Varese and abroad at least since 1 July 1980; (b) order the defendant to pay them the difference in salary, together with interest thereon.

On 20 January 1982, the President of the Second Chamber decided, with the consent of the parties, to suspend the proceedings sine die, pending a decision by the First Chamber of the Court on a number of similar applications lodged two years earlier by seven of the aforesaid officials (Case 543/79 Birke v Commission and Joined Cases 532, 534, 567, 618 and 660/79 Amesz and Others v Commission).

A considerable period of time elapsed. On 15 December 1982, the Court declared in two interlocutory judgments (Birke v Commission [1982] ECR 4425 and Amesz v Commission [1982] ECR 4465) that Regulation No 3087/78 (on the basis of which the contested salary statements had been calculated) was ‘not applicable ... in so far as it takes no account of the cost of living in Varese and limits the retroactive effect of the adjustment of the weighting to 1 January 1978’ and ordered the Commission ‘to report to the Court ... on the measures taken to comply with this judgment’. In February 1984 the Commission complied with that request and informed the Court that, by Regulation (EEC) No 3681/83 of 19 December 1983 (Official Journal 1983, L 368, p. 1), the Council had adjusted as from 1 January 1976 the weightings applicable to the salaries of officials employed, on the one hand, in Italy excluding Varese, and, on the other, in Varese itself. In accordance with that regulation, the Commission had paid all the applicants the arrears owed to them.

However, the officials concerned were not content with the payment of arrears. They claimed that they were also entitled to compensation (a) for the delay in adjusting the weighting and (b) for the depreciation in the value of the Italian lira before the arrears were paid (see in that connection the Opinion which I delivered on 11 December 1984 in Case 158/79 Roumengous v Commission [1985] ECR 39). In its final judgment delivered on 15 January 1985 (Joined Cases 532, 534, 567, 600, 618, 660/79 and 543/79 Amesz v Commission [1985] ECR 55), the Court upheld only one of those claims. The Commission was ordered ‘to pay default interest at the rate of 6% per annum on the amount of the arrears of remuneration which it paid in pursuance of Regulation No 3681/83’, whilst the claim for the payment of compensatory interest to make good the damage suffered by the applicants as a result of the depreciation of the Italian lira was held to be a ‘fresh’ claim and, consequently, inadmissible.

2.It was reasonable to assume that those decisions would have induced the applicants in Case 323/81 to discontinue the proceedings. That was not the case. In a memorandum dated 19 June 1985, they notified the Court that they wished to continue the proceedings on the ground that, although their claims had to a large extent been satisfied, certain issues raised by the dispute were still unresolved. During the written procedure those issues were described in the following terms:

(a) unlike the other applicants, Mr Henrichs and Mr Weckermann were not parties to the proceedings decided by the aforesaid judgments and are therefore entitled to the payment of default interest from the date on which they submitted their complaint;

(b) those judgments have only partially resolved the problem of calculating the weighting for Italy. After the adoption of Regulation No 3681/83, the method of adjusting the weighting for the province of Varese in connection with the assessment to be made every five years remains to be determined;

(c) the damage resulting from the depreciation of the value of the Italian lira has never been made good;

(d) the interest rate of 6% per annum fixed by the Court in its judgments of 15 January 1985 cannot extend to the interest to be paid after the assessment has been made. Such interest, including compensatory interest, should in any case be payable not from the date of the complaint but from the date of entitlement;

(e) the defendant should in any event be ordered to pay the whole of the costs.

3.The application cannot succeed. With regard to the first issue (a), the Commission states that it has paid default interest to all the officials who instituted proceedings in 1979. Even though Mr Henrichs and Mr Weckermann were not directly affected by the judgments of 15 January 1985, they had challenged the salary statements for the year in question in Cases 594 and 719/79 (which they themselves subsequently treated as ‘resolved’ in a letter of 12 March 1986) and were thus reimbursed. The claims whereby those two applicants seek the annulment of the salary statements for February and March 1981, the payment of arrears and the payment of interest have thus become devoid of purpose.

With regard to the assessment of the weightings which is to be made every five years (b), the Commission rightly points out that the nine applicants have no interest in seeking a decision from the Court on a measure which has not yet been adopted. I would add that the aforesaid assessment does not apply to Regulation No 397/81, which is contested by the applicants. That regulation takes 1 July 1980 as the date of reference, whilst the period of assessment runs from 1 January 1981. Hence this claim is also devoid of purpose.

The same holds true for (d). In my view, the applicants' claim concerning the date from which default interest is payable is in principle correct. However, like the claim for the payment of interest at a different rate, it refers to sums which cannot in fact be calculated owing to the absence of a regulation governing the assessment of weightings. Finally, with regard to compensatory interest (c), it is sufficient to state that the claim was put forward for the first time in the reply. Accordingly, pursuant to Article 19 of the Protocol on the Statute of the Court of Justice and Article 38 of the Rules of Procedure, it is inadmissible.

4.In the light of those considerations, I suggest that the Court dismiss the application submitted on 28 December 1981 by Jan Amesz, Rolf Bauch, Jakob Flamm, Hans Hoffmann, Helmut Knoeppel, Henricus Nijman, Anton Birke, Helmut Henrichs and Bernd Weckermann. Pursuant to Article 70 of the Rules of Procedure, the parties must be ordered to bear their own costs.

*1 Translated from the Italian.