OPINION OF MR ADVOCATE GENERAL CAPOTORTI — JOINED CASES 64 AND 113/76. 167 AND 239/76, 27, 28 AND 45/79

Council to pay compensation for the damage suffered by reason of the failure to make the restoration of the production refunds retroactive.

Mr President, Members of the Court,

I — Translated from the Italian.

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DUMORTIER v COUNCIL

After various extensions of the period laid down by that judgment the applicant undertakings ultimately reached agreement with the Commission and Council in January 1981 on the quantities of maize used in the production of gritz and on the amount of refunds expressed in units of account for the period from 1 August 1975 to 19 October 1977. The undertakings and the institutions remained at issue, however, on the relevant date for convening the units of account into French francs, which were the national currency of all the applicant companies. The institutions maintained that the relevant date was that of the production of the gritz, while the undertakings were of the opinion that it was the date of the judgment which had recognized the right to obtain compensation and had laid down the criteria for quantifying the damage. Pending resolution of that issue (which, as we shall see, is not of negligible economic importance), the institutions paid the sums calculated on the basis of the conversion which they considered applicable: FF 5.633 per unit of account in respect of the period from 1 August 1975 to 31 July 1977 and FF 5.7806 per unit of account in respect of the period from 1 August 1977 to 18 October 1977. The applicant undertakings are now asking the Court to determine the compensation due to them on the basis of a rate of FF 6.73056 per European currency unit (which in the meantime replaced the unit of account) prevailing at the date of the judgment and to order the Council to pay each of the parties the difference between the sums already paid provisionally and those resulting from application of the above-mentioned rate.

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OPINION OF MR ADVOCATE GENERAL CAPOTORTI — JOINED CASES 64 AND 113/76, 167 AND 239/76, 27, 28 AND 45/79

intended to allow the undertakings the more favourable rate of conversion (claimed by the applicants in the alternative) and at the same time to award interest (not envisaged in the claim in the alternative), thus awarding a larger sum than that claimed and offending against the principle that the judgment should correspond to the claim. That is however not the case, as we have seen. Obviously that argument does not take into account the fact that the Court awarded the undertakings interest from the date of judgment, that is from 4 October 1979, whereas the applicants had claimed interest from the dates on which the unpaid monthly payments of refunds fell due. Those payments fell due at various dates between 1 August 1975 and 19 October 1977, so it is clear that there was a significant financial difference between the claim and the judgment; in other words the applicants will receive by way of interest an appreciably smaller sum than that which they had claimed under that head. The aforesaid judgment does not therefore accord with the main claim.

DUMORTIER v COUNCIL

occurred, that is to say, from the time when the unpaid refunds fell due. They observe that since the Court resolved the question of interest in that restrictive fashion it could be explained only on the basis that, in the Court's view, the assessment of the damage must be made at the date of judgment; such an assessment involves taking into account all claims to compensation in relation to the period from the production of the gritz to the date of the judgment, including the claim for interest for delay in payment. According to that argument, in brief, there is a strict correlation between the commencement of interest and the method of assessing the damage, in the sense that the date fixed for the commencement of the interest must necessarily coincide with that to which reference is made for the purpose of quantifying the damage. In that respect, the applicants stress that if the payment of compensation had reference to a previous date the damage caused by facts such as the depreciation of the currency following the occurrence of the original damage would remain without any form of compensation.

It does not seem to me that the argument based on the commencement of the interest is decisive for the purpose of an interpretation of the judgment in the sense advocated by the applicants. It is quite possible that when formulating a main claim and one in the alternative those undertakings assumed that the commencement of interest must coincide with the date with reference to which compensation was to be paid and it is clear that from a purely economic point of view it is reasonable that the two dates should coincide. However, I doubt whether an observation of that kind can support an argument to resolve the problem of interpretation of the judgment. The legal systems of the Member States do not contain a general principle according to which interest must run from the date with reference to which compensation is paid; the solutions adopted by national law on this subject are most diverse. In some countries the award of interest and the date from which it is to commence is in the discretion of the court (that is the case in English law and, to some extent, also in Danish law); in others interest runs from the date on which payment is demanded of the debtor (that is the case in the Federal Republic of Germany) or from the date of judgment (that is so in French and Belgian law). The fact that the Court made interest payable from the date of the judgment can in my opinion at most serve as evidence of a certain inclination to make the award of damages coincide with the commencement of interest.

1754

DUMORTIER v COUNCIL

The two questions are closely connected: whether it is a question of awarding damages or specifying the applicable rate of exchange, variations in the value of the currency are more or less taken into account according as the date on which the debt arose is further or closer to the date of judgment. In particular, in both civil and criminal matters the French Cour de Cassation in determining the pecuniary extent of the damage takes account of the lapse of time between the occurrence of the damage and the award of compensation, including any variation in the value of the currency in the meantime. The relevant cases specify in relation to non-contractual liability the rate of exchange at the date of payment (cf. Cass. Req. 3 May 1946, Rec. Sirey 1951, 1, 33; Cass. Comm. 18 November 1952, Bull. Civ. Ill, No 355, p. 273) or the date of the court award (cf. Cass. Crim. 7 July 1966, Gaz. Pal. 1966, 2, 193). On the other hand, the French Conseil d'État takes the view that as regards the non-contractual liability of the public authorities compensation expressed in foreign currency must be converted into national currency at the rate prevailing when the obligation arose.

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OPINION OF MR ADVOCATE GENERAL CAPOTORTI — JOINED CASES 64 AND 113/76, 167 AND 239/76, 27, 28 AND 45/79

As for the costs, the Court has been invited by the parties to fix the amount payable in connection with the procedural steps taken by the applicants up to the partial agreement reached in January 1981 on the amount of the damages expressed in units of account. The applicants have indicated a lump-sum without specifying the various heads. The costs claimed are thus as follows: FF 45 000 in Case 64/76, FF 42 500 in Case 113/76, FF 57 COC in Case 167/78, FF 40 000 in Case 239/78, FF 100 000 in Case 27/79, FF 86 500 in Case 28/79 and FF 10 000 in Case 45/79. The Council considers those claims excessive, especially since the cases were identical and required the same treatment.

1760

DUMORTIER v COUNCIL

The costs incurred by the applicants after January 1981 must be borne by the Council on the basis of the principle that costs follow the event. The question of the amount must be considered and decided subsequently, in the event of the parties not reaching agreement thereon.

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