CELEX: 62017CJ0543
Failure of a Member State to fulfil obligations
Article 258 TFEU
Measures to reduce the cost of deploying high-speed electronic communications networks
Directive 2014/61/EU
No transposition and/or no notification of transposing measures
Article 260(3) TFEU
Application for an order to pay a daily penalty payment
Calculation of the amount of the penalty payment

By its application, the European Commission asks the Court, first, to declare that the Kingdom of Belgium, by failing to adopt, by 1 January 2016, the laws, regulations and administrative provisions necessary to comply with Directive 2014/61/EU of the European Parliament and of the Council of 15 May 2014 on measures to reduce the cost of deploying high-speed electronic communications networks (
OJ 2014 L 155, p. 1
) or, in any event, by failing to notify the Commission of those provisions, failed to fulfil its obligations under Article 13 of that directive, and, second, to order that Member State to pay a daily penalty payment of an amount initially set at EUR 54 639.36, ultimately reduced to EUR 6 071.04, from the day of delivery of the judgment for a breach of the obligation to notify the measures transposing that directive.
Legal context
Article 1 of Directive 2014/61 states:
‘1.   This Directive aims to facilitate and incentivise the roll-out of high-speed electronic communications networks by promoting the joint use of existing physical infrastructure and by enabling a more efficient deployment of new physical infrastructure so that such networks can be rolled out at lower cost.
2.   This Directive establishes minimum requirements relating to civil works and physical infrastructure, with a view to approximating certain aspects of the laws, regulations and administrative provisions of the Member States in those areas.
3.   Member States may maintain or introduce measures in conformity with Union law which go beyond the minimum requirements established by this Directive with a view to better achieving the aim referred to in paragraph 1.
…’
Article 2 of that directive, headed ‘Definitions’, reads as follows:
‘For the purposes of this Directive, the definitions set out in Directive 2002/21/EC [of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (
OJ 2002 L 108, p. 33
)] apply.
The following definitions also apply:
…
(7)
“in-building physical infrastructure” means physical infrastructure or installations at the end-user’s location, including elements under joint ownership, intended to host wired and/or wireless access networks, where such access networks are capable of delivering electronic communications services and connecting the building access point with the network termination point;
(8)
“high-speed-ready in-building physical infrastructure” means in-building physical infrastructure intended to host elements or enable delivery of high-speed electronic communications networks;
(9)
“major renovation works” means building or civil engineering works at the end user’s location encompassing structural modifications of the entire in-building physical infrastructure or a significant part thereof, and requiring a building permit;
…
(11)
“access point” means a physical point, located inside or outside the building, accessible to undertakings providing or authorised to provide public communications networks, where connection to the high-speed-ready in-building physical infrastructure is made available.’
Article 4(5) of Directive 2014/61 provides:
‘Upon the specific written request of an undertaking providing or authorised to provide public communications networks, Member States shall require network operators to meet reasonable requests for on-site surveys of specific elements of their physical infrastructure. Such request shall specify the elements of the network concerned with a view to deploying elements of high-speed electronic communications networks. On-site surveys of the specified network elements shall be granted under proportionate, non-discriminatory and transparent terms within one month from the date of receipt of the written request, without prejudice to the limitations pursuant to paragraph 1.’
Article 8 of that directive states:
‘1.   Member States shall ensure that all newly constructed buildings at the end-user’s location, including elements thereof under joint ownership, for which applications for building permits have been submitted after 31 December 2016, are equipped with a high-speed-ready in-building physical infrastructure, up to the network termination points. The same obligation applies in the event of major renovation works for which applications for building permits have been submitted after 31 December 2016
2.   Member States shall ensure that all newly constructed multi-dwelling buildings, for which applications for building permits have been submitted after 31 December 2016, are equipped with an access point. The same obligation applies in the event of major renovation works concerning multi-dwelling buildings for which applications for building permits have been submitted after 31 December 2016.
3.   Buildings equipped in accordance with this Article shall be eligible to receive the voluntary “broadband-ready” label in Member States that have chosen to introduce such a label.
4.   Member States may provide for exemptions from the obligations provided for in paragraph 1 and 2 for categories of buildings, in particular single dwellings, or major renovation works in cases in which the fulfilment of those obligations is disproportionate, such as in terms of costs for individual or joint owners or in terms of type of building, such as specific categories of monuments, historic buildings, holiday homes, military buildings or other buildings used for national security purposes. Such exemptions shall be duly reasoned. The interested parties shall be given the opportunity to comment on the draft exemptions within a reasonable period. Any such exemption shall be notified to the Commission.’
Article 13 of that directive, headed ‘Transposition’, provides:
‘Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive by 1 January 2016. They shall inform the Commission thereof.
They shall apply those measures from 1 July 2016.
When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.’
The pre-litigation procedure and the proceedings before the Court
Since the Commission did not receive from the Kingdom of Belgium any information concerning the adoption and publication of the laws, regulations and administrative provisions necessary to comply with Directive 2014/61 on the expiry of the deadline for transposition laid down in Article 13 of that directive, namely 1 January 2016, the Commission sent a letter of formal notice to that Member State on 23 March 2016.
In the reply of the Kingdom of Belgium, dated 11 July 2016, it became clear that, on that date, the transposition measures were merely being drawn up. On 30 September 2016 the Commission therefore sent a reasoned opinion to that Member State inviting it to adopt the measures necessary to comply with the requirements of Directive 2014/61 within a period of 2 months from receipt of that opinion.
After the time prescribed for a response was extended by the Commission at the request of the Belgian authorities, until 28 February 2017, the Kingdom of Belgium replied to the reasoned opinion by letters of 21 February and 28 March 2017, informing the Commission that the transposition of Directive 2014/61 was ongoing. The Kingdom of Belgium annexed to those letters draft transposition measures and the consolidated version of the order of 3 July 2008 relating to roadworks in the Brussels Capital Region.
Having taken the view that the Kingdom of Belgium had not fully transposed Directive 2014/61 and had not notified the relevant national transposition measures, the Commission brought the present action.
By letters of 10 and 25 August and 12 September 2017, the Kingdom of Belgium notified the Commission of various legislative measures designed to transpose Directive 2014/61 at the federal level and in the Flemish Region.
In its reply, the Commission stated that, notwithstanding that significant progress had been noted in the transposition of Directive 2014/61 in Belgium since the lodging of the application, the adoption of further measures remained necessary in order to transpose that directive fully. That necessity was moreover recognised by the Belgian authorities themselves. Consequently, while reducing, at this stage of the proceeding, to EUR 12 142.08 the amount of the daily penalty payment which it considered that the Kingdom of Belgium should be ordered to pay, the Commission maintained the form of order sought.
At the hearing, having regard to further progress made by the Kingdom of Belgium in the transposition of Directive 2014/61 since the lodging of the reply, the Commission stated the remaining shortcomings were solely in the Brussels Capital Region and that it reduced to EUR 6 071.04 the amount of the daily penalty payment sought. However, the Commission maintained the form of order sought otherwise.
By decisions of the President of the Court of 5 February 2018 and 21 November 2018, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Lithuania, Hungary, the Republic of Austria and Romania were granted leave to intervene in support of the forms of order sought by the Kingdom of Belgium.
The action
The infringement based on Article 258 TFEU
Arguments of the parties
According to the Commission, by failing to adopt, by 1 January 2016, all the laws, regulations and administrative provisions necessary to comply with Directive 2014/61 or, in any event, by failing to notify the Commission of those provisions, the Kingdom of Belgium failed to fulfil its obligations under Article 13 of that directive.
The Commission maintains, inter alia, that the provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity necessary to satisfy the requirement of legal certainty, and that the Member States cannot rely on domestic circumstances or practical difficulties to justify non-transposition of a directive within the period prescribed by the EU legislature. It is therefore incumbent on each Member State to take into account the stage necessary for the adoption of the required legislation that arise in its domestic legal system in order to ensure that transposition can be achieved within the period prescribed.
In this case, under Article 13 of Directive 2014/61, the Member States were obliged to adopt the national measures required for the transposition of the provisions of that directive by 1 January 2016 and to inform the Commission of such provisions. It is, however, apparent from various correspondences with the Kingdom of Belgium that, more than 18 months after the expiry of the period for transposition laid down by that directive, that Member State had not adopted all the measures required for the full transposition of that directive. Thus, on the expiry of the deadline set in the reasoned opinion of 30 September 2016, and even on the date when the Commission decided to bring the present action, namely 13 July 2017, Articles 2 to 11 of Directive 2014/61 had not been fully transposed in Belgium; only Articles 5 and 6 had been transposed and then only for the Brussels Capital Region.
In its reply, the Commission did state that it had received notification from the Kingdom of Belgium of a certain number of transposing measures adopted since the action was brought. However, those notifications indicate that the Kingdom of Belgium had still not fully transposed the provisions of Articles 2 to 4, Article 7(1), and Articles 8 and 10 of Directive 2014/61.
At the hearing, the Commission stated that, at that stage of the proceedings, despite the further progress made, full transposition of Article 2(7) to (9) and (11), Article 4(5) and Article 8 of Directive 2014/61 could still not be confirmed.
The Kingdom of Belgium states that, since the beginning of the pre-litigation procedure, and having regard for the principle of sincere cooperation, it has not sought to disguise the fact that some provisions of national law still had to be adopted in order to achieve full transposition of Directive 2014/61. However, the Kingdom of Belgium observes that the various competent authorities involved within Belgium, namely the Federal State, the Brussels Capital Region, the Walloon Region, the French Community, the Flemish Region, the Flemish Community and the German-speaking Community, have adopted, each within their area of competence, provisions required to transpose that directive or, at least, have taken the measures necessary for the adoption of such provisions. Moreover, in the course of the proceedings, the Commission has itself recognised those efforts by reducing the amount of the daily penalty payment sought.
Furthermore, while not disputing the Commission’s claim that some measures had still to be adopted, the Kingdom of Belgium has, in its rejoinder, indicated that it disagrees with the Commission on the details of the measures that must still be taken.
Last, at the hearing, having regard to the fact that the Commission reiterated its submissions with respect to the failure to transpose some provisions of Directive 2014/61 for the Brussels Capital Region alone, the Kingdom of Belgium acknowledged that the transposition of such provisions and the notification of the transposing measures was still lacking.
Findings of the Court
As a preliminary point, it must be recalled that, in accordance with the Court’s settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion, and that the Court cannot take account of any subsequent changes (judgments of 30 January 2002, Commission v Greece,
C‑103/00
,
EU:C:2002:60
, paragraph
, and of 21 March 2019, Commission v Italy,
C‑498/17
,
EU:C:2019:243
, paragraph
).
In the present case, the Commission sent its reasoned opinion to the Kingdom of Belgium on 30 September 2016, so that the 2‑month period set therein expired on 30 November 2016. It is, however, common ground that that time limit, which was extended by the Commission at the request of the Belgian authorities, ultimately expired on 28 February 2017. The assessment as to whether or not there has been a failure to fulfil obligations as claimed must therefore relate to the state of the domestic legislation in force on that date (see, by analogy, judgment of 9 December 2004, Commission v France,
C‑177/03
,
EU:C:2004:784
, paragraph
).
In addition to it being apparent from the reply of the Kingdom of Belgium on 21 February 2017 that, on that date, Directive 2014/61 had not been fully transposed into national law, it is common ground that that situation had not changed up to 28 February 2017, since no further measure transposing that directive was notified to the Commission in the intervening time.
It must therefore be concluded that, on the expiry of the time limit set in the reasoned opinion, as extended by the Commission, the Kingdom of Belgium had neither adopted the measures necessary to ensure the transposition of Directive 2014/61 nor notified the measures transposing that directive.
Consequently, it must be held that, by not having adopted the laws, regulations and administrative provisions necessary to comply with Directive 2014/61 on the expiry of the period prescribed in the reasoned opinion of 30 September 2016, as extended by the Commission, and, a fortiori, by not having notified the Commission of such transposing measures, the Kingdom of Belgium failed to fulfil its obligations under Article 13 of that directive.
The infringement based on Article 260(3) TFEU
The scope of Article 260(3) TFEU
–
Arguments of the parties
According to the Commission, Article 260(3) TFEU was introduced by the Treaty of Lisbon with the aim of strengthening the penalty mechanism previously established by the Treaty of Maastricht. Taking account of the novelty of that provision and the need to maintain transparency and legal certainty, the Commission adopted the Communication on the implementation of Article 260(3) TFEU (
OJ 2011 C 12, p. 1
).
The purpose of Article 260(3) TFEU is to give a stronger incentive to Member States to transpose directives within the deadlines laid down by the EU legislature and to ensure the application of EU legislation.
The Commission considers that Article 260(3) TFEU is applicable both in cases of complete absence of any notification of measures transposing a directive and of partial notification of such measures.
Furthermore, the Commission considers that, since Article 260(3) TFEU refers to the failure of a Member State to fulfil its obligation to notify ‘measures transposing a directive’, that provision is not applicable solely in a case of absence of notification of the national measures transposing a directive, but is intended to apply as soon as a Member State does not adopt such measures. A very literal interpretation of that provision, according to which it aims merely to ensure effective notification of national measures, would not guarantee an accurate transposition of all the obligations arising from the directive in question and would negate the effectiveness of the obligation to transpose directives into national law.
The present case precisely concerns penalties for the Kingdom of Belgium’s failure to adopt and publish, and thus not to notify the Commission of, all the legal provisions necessary for the transposition of Directive 2014/61 into national law.
In reply to the arguments advanced by the Kingdom of Belgium in order to challenge the application of Article 260(3) TFEU to the present case, the Commission claims, inter alia, that, contrary to Article 260(2) TFEU, Article 260(3) TFEU does not derogate from any general rule and need not therefore be interpreted strictly. That provision has a specific scope.
According to the Commission, it is clear from the
travaux préparatoires
of the Treaty establishing a Constitution for Europe that a distinction needed to be drawn between a full transposition of a directive and a transposition which is in conformity with a directive. In the light of the cover note of the Praesidium to the European Convention of 12 May 2003 (CONV 734/03), it is common ground that, for the framers of that text, any review of the conformity of the transposing measures can be conducted only on the basis of measures actually adopted by a Member State, bearing in mind that it is logically impossible to conduct such a review of the conformity of measures which have not yet been adopted or notified to the Commission.
The concept of ‘full transposition’, on the one hand, and the concept of a ‘correct transposition’, on the other, should therefore be clearly distinguished. A finding of the Commission that there are gaps in the transposition of a directive into national law does not mean that the Commission has conducted a review of the conformity of the existing national measures with that directive. That would be all the more true where, as in the present case, the defaulting Member State itself concedes that the transposition of the directive into its national law is still lacking in part. Indeed, that difference is perfectly illustrated by the consequences flowing from a judgment finding a failure to comply with obligations. If it were found that a national legislation measure was not in conformity with EU law, the competent national authorities would be prevented from applying the national measure in question even if the national legislature had not yet implemented the judgment in question. By contrast, no order not to apply an existing national measure can arise from a judgment finding a gap in transposition, since such a judgment would find only that the national measures required by EU law were lacking.
In the light of the objective of Article 260(3) TFEU to give a stronger incentive to Member States to transpose directives within the deadlines laid down and thereby to ensure that they are applied effectively, limiting the application of that provision solely to cases of complete non-transposition would be undesirable. In order to evade its application, the Member States might be tempted to begin by transposing marginal provisions of a directive, thereby acting contrary to the aim of Article 260(3) TFEU. The transposition of provisions fundamental to a directive would, in the absence of financial penalties, become of secondary importance.
According to the Commission, the interpretation of Article 260(3) TFEU which it supports is corroborated by the wording of the provision, which concerns the failure of a Member State in ‘its obligation to notify measures transposing a directive’. Such wording thus contains no restriction or condition such as those relied on by the Kingdom of Belgium.
It also submits that it cannot reasonably be argued that the penalties provided for in the FEU Treaty are contrary to the principle of proportionality whereas, without such penalties, compliance with the obligation to transpose a directive into national law could not be ensured.
The Kingdom of Belgium submits that Article 260(3) TFEU is applicable, contrary to the interpretation advocated by the Commission and that suggested by the Advocate General Wathelet in his Opinion in Commission v Poland (
C‑320/13
, not published,
EU:C:2014:2441
), only where a Member State has not notified any measure intended to transpose a particular directive. In the present case, the Kingdom of Belgium has, as acknowledged by the Commission, notified certain transposing measures, so that that provision is not applicable to it.
In support of its position, the Kingdom of Belgium claims, inter alia, that a broad interpretation of Article 260(3) TFEU, such as that that advocated by the Commission, could give rise to problems of legal certainty. If that provision could apply both to cases of ‘non-communication’ and cases of non-transposition, it could be difficult to know whether a particular case concerned proceedings governed by that provision or proceedings under Article 258 TFEU. In addition, in any given proceedings, it could prove difficult to know which provisions of a directive must be transposed in order to avoid proceedings being brought under Article 260(3) TFEU, and which un-transposed provisions fall within the scope of proceedings under Article 258 TFEU.
Furthermore, the interpretation of Article 260(3) TFEU advocated by the Commission could be capable of breaching the principle of proportionality referred to in Article 5(4) TEU. First, failures to transpose directives are not necessarily the most harmful infringements to the public and private interests protected by EU rules. Second, to penalise every failure to transpose would mean confusing, as regards their seriousness, two types of different infringements, namely non-execution of a judgment (double infringement) and non-transposition of directives (first failure to comply with an obligation), which would be disproportionate.
According to the Kingdom of Belgium, there is no risk of circumvention of Article 260(3) TFEU since the Commission can bring infringement proceedings under either Article 258 TFEU or Article 260(2) TFEU.
The Kingdom of Belgium adds that the narrow interpretation of Article 260(3) TFEU which should be applied is supported by a teleological interpretation based on the
travaux préparatoires
relating to that provision and is borne out by the wording of that provision, which refers expressly to cases in which the Member State in question has failed to fulfil its obligation to ‘notify measures transposing a directive’ adopted through a legislative procedure. It is therefore only the breach of the obligation to ‘notify’ transposing measures which can be penalised under that provision and not breach of the obligation to transpose a directive. In addition, that obligation of notification concerns only the notification of certain measures transposing a directive and not the notification of all the measures transposing that directive, since the framers of the FEU Treaty referred not to ‘the measures transposing a directive’, but ‘measures transposing a directive’. That interpretation is indeed supported by the Dutch, English and German language versions of Article 260(3) TFEU.
In addition, having been granted leave to intervene in support of the forms of order sought by the Kingdom of Belgium, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Lithuania, Hungary, the Republic of Austria and Romania contend, in essence, that Article 260(3) TFEU is applicable only where a Member State has not acted at all to transpose a directive into national law and has therefore failed to take measures to transpose that directive and to notify them to the Commission within the prescribed period. However, the Republic of Lithuania, the Italian Republic and Hungary admit that, where it is clear that the legislative acts transposing a directive are not capable of attaining its key objectives or in the case of misuse of rights, the Commission can rely on Article 260(3) TFEU. By contrast, in no event should the scope of that provision cover a situation in which a Member State has notified transposing measures to the Commission, but the Commission criticises it for an incorrect or partial transposition of the directive in question.
In support of their position, the Member States which intervened in the present case submit, inter alia, that that interpretation of Article 260(3) TFEU follows from the wording of the provision, is based on its legislative history and is consistent with its objective, since that provision was intended to apply only in the most serious and clear infringements of the obligation to transpose and notify a directive. In addition, they claim that that interpretation is corroborated by the scheme adopted within Article 260 TFEU itself and is the only interpretation which does not put the Member States in an extremely difficult situation given that, if the approach advocated by the Commission were followed, the Member States could never be certain that the Commission was not considering to impose a penalty payment on them.
They add that the interpretation set out in paragraph 44 of the present judgment is capable of ensuring full compliance with the scope of Article 258 TFEU and that it is the only interpretation which is compatible with the principles of legal certainty and proportionality. It would indeed mean that, where, in the course of proceedings before the Court, a Member State transposed a directive and notified all transposing measures to the Commission, the Commission would be required to discontinue its action for an order that that Member State pay a penalty payment. Furthermore, there would be only a marginal risk that the Member States attempt to avoid the application of that provision by notifying inaccurate transposing measures.
–
Findings of the Court
As a preliminary point, it must be recalled that the first subparagraph of Article 260(3) TFEU provides that, where the Commission brings before the Court an action pursuant to Article 258 TFEU, on the grounds that a Member State has failed to fulfil its obligation to notify the measures transposing a directive adopted through a legislative procedure, the Commission may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by that Member State which it considers appropriate in the circumstances. In accordance with the second subparagraph of Article 260(3) TFEU, if the Court finds that there is an infringement, it may impose a lump sum or penalty payment not exceeding the amount specified by the Commission, the payment obligation to take effect on the date set by the Court in its judgment.
In order to determine the scope of Article 260(3) TFEU, it is necessary to define the circumstances in which a Member State may be considered to have failed to fulfil its ‘obligation to notify the measures transposing a directive’ within the meaning of that provision.
In that regard, it is clear from the Court’s settled case-law that the interpretation of a provision of EU law requires that account be taken not only of its wording and the objectives it pursues, but also of its context and the provisions of EU law as a whole. The origins of a provision of EU law may also provide information relevant to its interpretation (judgment of 10 December 2018, Wightman and Others,
C‑621/18
,
EU:C:2018:999
, paragraph
and the case-law cited).
As regards, first of all, the wording of Article 260(3) TFEU, it is appropriate to consider the seriousness of the failure to fulfil the ‘obligation to notify measures transposing a directive’, which is central to that provision.
The Court has repeatedly held on that matter, in proceedings relating to Article 258 TFEU, that the notification required of the Member States, in accordance with the principle of sincere cooperation laid down in Article 4(3) TEU, is intended to facilitate the achievement of the Commission’s tasks, which consist, inter alia, under Article 17 TEU, in ensuring the application of the Treaties and of measures adopted by the institutions pursuant to them. That notification must contain sufficiently clear and precise information on the substance of the national rules which transpose a directive. Thus, notification, to which a correlation table may be added, must indicate unequivocally the laws, regulations and administrative provisions by means of which the Member State considers that it has satisfied the various requirements imposed on it by that directive. In the absence of such information, the Commission is not in a position to ascertain whether the Member State has genuinely implemented the directive in full. The failure of a Member State to fulfil that obligation, whether by providing no information at all, partial information or by providing insufficiently clear and precise information, may of itself justify recourse to the procedure under Article 258 TFEU in order to establish the failure to fulfil the obligation (see, to that effect, judgments of 16 June 2005, Commission v Italy,
C‑456/03
,
EU:C:2005:388
, paragraph
, and of 27 October 2011, Commission v Poland,
C‑311/10
, not published,
EU:C:2011:702
, paragraphs
to
).
Next, as regards the purpose of Article 260(3) TFEU, it must be borne in mind that that provision broadly corresponds to Draft Article 228(3) of the Treaty establishing a Constitution for Europe, as set out on page 15 of the cover note of the Praesidium to the Convention of 12 May 2003 (CONV 734/03), a draft of which the wording itself mirrors the wording proposed in the Final report of the discussion circle on the Court of Justice of 25 March 2003 (CONV 636/03, pages 10 and 11). It is clear from that final report that the objective pursued by the introduction of the system set out in Article 260(3) TFEU is not only to induce Member States to put an end as soon as possible to a breach of obligations which, in the absence of such a measure, would tend to persist, but also to simplify and speed up the procedure for imposing pecuniary sanctions for failures to comply with the obligation to notify a national measure transposing a directive adopted through a legislative procedure, it being specified that, prior to the introduction of such a system, it might be years before a pecuniary sanction was imposed on Member States which had failed to comply timely with an earlier judgment of the Court and failed to respect their obligations to transpose a directive.
That aim would be compromised if, as contended by the Kingdom of Belgium and the other Member States who have intervened in the present procedure, the Commission was capable of imposing a financial penalty on a Member State under Article 260(3) TFEU only where the Member State failed to notify it of any measure transposing a directive adopted through a legislative procedure.
Such an interpretation would entail the risk that a Member State notifies the Commission either of measures ensuring the transposition of an insignificant number of provisions of the directive in question, or of measures clearly not intended to ensure the transposition of that directive, and would thus allow the Member States to prevent the Commission from applying Article 260(3) TFEU.
Nonetheless, the interpretation that only those Member States which correctly transpose, from the point of view of the Commission, the provisions of a directive and notify that institution thereof may be regarded as satisfying the obligation of notification referred to in Article 260(3) TFEU also cannot be accepted.
That interpretation would be irreconcilable with the legislative history of Article 260(3) TFEU. It is clear from the final report referred to in paragraph 52 of the present judgment that the members of the discussion circle on the Court of Justice distinguished cases of ‘non-communication’ and non-transposition from cases of incorrect transposition, and considered that the draft provision should not apply to the latter, a financial penalty being capable of being imposed in that case only as the result of an action for failure to fulfil obligations under Article 260(2) TFEU.
That interpretation would also be irreconcilable with the legislative context of which Article 260(3) TFEU forms a part, which includes the procedure for failure to fulfil obligations referred to in Article 258 TFEU. In that regard, it is to be noted that the procedure laid down in that provision allows the Member States the opportunity to challenge the position adopted by the Commission in a particular case, as regards the measures enabling a correct transposition of the directive concerned to be ensured without, however, being immediately exposed to the risk of a financial penalty being imposed on them, since such a penalty can be imposed, under Article 260(2) TFEU, only if the Member States in question have not taken the measures required by execution of a first judgment declaring a failure to fulfil obligations.
In those circumstances, the Court upholds an interpretation of Article 260(3) TFEU which, on the one hand, allows prerogatives held by the Commission for the purposes of ensuring the effective application of EU law, of protecting the rights of the defence and the procedural position enjoyed by the Member States under Article 258 TFEU read in conjunction with Article 260(2) TFEU to be guaranteed, and, on the other, puts the Court into a position of being able to exercise its judicial function of determining, in a single set of proceedings, whether the Member State in question has fulfilled its notification obligations and, where relevant, assess the seriousness of the declared failure and to impose the financial penalty which it considers to be the most suited to the circumstances of the case.
In the light of all the foregoing, the expression ‘obligation to notify measures transposing a directive’ in Article 260(3) TFEU must be interpreted as referring to the obligation of the Member States to provide sufficiently clear and precise information on the measures transposing a directive. In order to satisfy the obligation of legal certainty and to ensure the transposition of the provisions of that directive in full throughout its territory, the Member States are required to state, for each provision of the directive, the national provision or provisions ensuring its transposition. Once notified, where relevant in addition to a correlation table, it is for the Commission to establish, for the purposes of seeking the financial penalty to be imposed on the Member State in question laid down in that provision, whether certain transposing measures are clearly lacking or do not cover all of the territory of the Member State in question, bearing in mind that it is not for the Court, in court proceedings brought under Article 260(3) TFEU, to examine whether the national measures notified to the Commission ensure a correct transposition of the provisions of the directive in question.
Failure to fulfil obligations by the time of the examination of the facts
According to the Court’s case-law, the imposition of a penalty payment is, in principle, justified only in so far as the failure continues for which that penalty was imposed up to the time of the Court’s examination of the facts (see, to that effect, judgments of 12 July 2005, Commission v France,
C‑304/02
,
EU:C:2005:444
, paragraph
; of 18 July 2006, Commission v Italy,
C‑119/04
,
EU:C:2006:489
, paragraph
; and of 7 September 2016, Commission v Greece,
C‑584/14
,
EU:C:2016:636
, paragraph
).
That case-law, relating to Article 260(2) TFEU, must be applied by analogy to Article 260(3) TFEU, in so far as the penalty payments under both provisions seek to achieve the same objective, namely inducing a Member State to put an end as soon as possible to a breach of obligations which, in the absence of such a measure, would tend to persist (see, to that effect, judgment of 12 July 2005, Commission v France,
C‑304/02
,
EU:C:2005:444
, paragraph
).
It must therefore be determined whether the failure which the Commission alleges against the Kingdom of Belgium under Article 260(3) TFEU, namely not having adopted measures necessary to comply with Directive 2014/61 nor, a fortiori, notification from that Member State of the relating transposing measures, as found in paragraph 27 of the present judgment, continued up to the time of the Court’s examination of the facts.
As is clear from paragraphs 12 and 13 of the present judgment, the Commission has, in the course of the proceedings, adjusted the amount of the penalty payment which it seeks to be imposed on the Kingdom of Belgium, in order to take account of the fact that the failure alleged against that Member State is now confined to non-transposition, as far as concerns the Brussels Capital Region only, of Article 2(7) to (9) and (11), Article 4(5) and Article 8 of Directive 2014/61, as well as no notification of the measures intended to transpose those provisions within that region.
In the first place, as regards, Article 2(7) to (9) and (11) of that directive, it should be noted that those provisions contain definitions of ‘in-building physical infrastructure’, ‘high-speed-ready in-building physical infrastructure’, ‘major renovation works’ and ‘access point’, and that it is clear from the correlation table annexed to the Kingdom of Belgium’s defence that, when that defence was lodged, the transposition of those definitions had been the subject, as far as concerns the Brussels Capital Region, of only a ‘draft order amending the regional urban plan regulation’. Since there has been no subsequent notification from that Member State in respect of the adoption and entry into force of that draft order, the Court finds that that Member State has still not adopted the measures necessary to ensure that Article 2(7) to (9) and (11) of the directive is transposed in respect of the Brussels Capital Region.
In the second place, as regards Article 4(5) of Directive 2014/61, which provides that, in response to a specific written request by an undertaking providing or authorised to provide public communications networks, Member States are to require network operators to meet reasonable requests for on-site surveys of specific elements of their physical infrastructure, the fact remains that the correlation table annexed to the defence of the Kingdom of Belgium contains no indication of any transposition measures already adopted in the Brussels Capital Region. Since the Kingdom of Belgium has, after lodging its defence, not provided any further information concerning that provision, the Court finds that Article 4(5) of Directive 2014/61 has not yet been transposed in respect of the Brussels Capital Region.
In the third place, as far as concerns Article 8 of Directive 2014/61, certain provisions of which, in so far as they are optional, do not require, the Kingdom of Belgium contends, transposition into national law, it is clear from the correlation table referred to in the preceding paragraph that the provisions of that article of which it is common ground that its transposition was mandatory had in any event not yet been transposed in respect of the Brussels Capital Region. Although that correlation table provides evidence of a ‘draft order amending the regional urban plan regulation’, the Kingdom of Belgium has subsequently not provided any information on the adoption and entry into force of the draft order. It must therefore be concluded that the Kingdom of Belgium has not yet adopted the measures necessary to ensure the transposition, in respect of Brussels Capital Region, of Article 8 of Directive 2014/61.
Lastly, as stated in paragraph 22 of the present judgment, at the hearing, the Kingdom of Belgium did not contest the complaints made by the Commission and acknowledged that it was necessary for the measures to be adopted in order to transpose Directive 2014/61 fully into Belgian law and that those measures were to be notified as soon as possible.
Having regard to those considerations, the Court finds that, by still not having adopted the provisions necessary to transpose Article 2(7) to (9) and (11), Article 4(5) and Article 8 of Directive 2014/61 into its national law, in respect of the Brussels Capital Region, by the time of the examination of the facts by the Court, and, a fortiori, not having notified the Commission of such transposing measures, the Kingdom of Belgium partly persisted in its failure to fulfil its obligations. It follows that Article 260(3) TFEU is applicable to the present case.
Imposition of a penalty payment in the present case
–
Arguments of the parties
As regards the amount of the financial penalty, the Commission considers, in keeping with the position set out in paragraph 23 of the communication referred to in paragraph 28 of the present judgment, that the method of calculating the penalty payment referred to in Article 260(3) TFEU must be the same as that applied pursuant to the procedure laid down in Article 260(2) TFEU.
In the present case, the Commission proposed, at the hearing, using a seriousness coefficient of 1 on a scale of 1 to 20. As regards the duration of the infringement, it considered that a coefficient of 1.8 on a scale of 1 to 3 would be appropriate. In that regard, the Commission states that, contrary to what the Kingdom of Belgium claims, it is clear from the wording of the first paragraph of Article 13 of Directive 2014/61 that Member States were required to adopt and publish the laws, regulations and administrative provisions necessary to comply with that directive by 1 January 2016 and to inform the Commission thereof. It claims that it is therefore from that date that a Member State could be regarded as having failed in its obligation to notify the transposing measures, rather than from 1 July 2016, which corresponds to the entry into force of the national provisions adopted.
By applying the ‘n’ factor relating to the Kingdom of Belgium, namely 4.96, to those coefficients and the standard flat-rate amount of EUR 680, the Commission seeks a penalty payment in the amount of EUR 6 071.04 per day of delay in the transposition of Directive 2014/61 to be imposed from the day of delivery of the present judgment.
In the event that a penalty payment must be imposed on it, the Kingdom of Belgium seeks an amount lower than that sought by the Commission. In that regard, that Member State contests the seriousness and infringement duration coefficient figures on the ground that they are not proportionate to any declaration of failure to fulfil obligations.
As regards, in particular, the seriousness coefficient, the Kingdom of Belgium notes, inter alia, that the consequences of not transposing Directive 2014/61 in full and the savings to be made upon full transposition have not been analysed specifically. In that regard, there were already numerous provisions within the Belgian legal system enabling, or even imposing, the coordination of civil works, and sharing and access to the information on existing physical infrastructures, on planned civil works and on the necessary permits granting procedures, so that the objectives of the directive were already broadly achieved in the Belgian legal system. Thus, the failure to fulfil the transposition obligation would have only a limited effect on the particular or general interest, which are taken into account by the Commission and the Court in evaluating the seriousness of an infringement. In any event, it contends that account should have been taken of the progress made in transposing Directive 2014/61 into Belgian law since the present action was brought.
As regards the duration of the infringement coefficient, the Kingdom of Belgium notes that, whilst it is true that, in accordance with Article 13 of Directive 2014/61, Member States were required to adopt and publish the laws, regulations and administrative provisions necessary to comply with that directive by 1 January 2016, it is also clear from Article 13 that it was for Member States to implement those provisions only from 1 July 2016. Therefore, the latter date should be taken as the date from the duration of the infringement and the duration of the infringement coefficient in question should be reduced to 1.3.
As regards the method of calculating the penalty payment, the Kingdom of Belgium asks that the verification of the transposition of Directive 2014/61 and of compliance with the judgment of the Court take place on a quarterly basis following the delivery of that judgment and that, consequently, the payment of the penalty payment also be ordered on a quarterly basis rather than a daily basis. Such a solution would allow and encourage progress on the transposition of that directive and, where relevant, lessen the burden of the penalty payment on public expenditure.
Furthermore, in the light of the complexity of the transposition of Directive 2014/61 into Belgian law, relating to the multitude of competent authorities in that area, the Kingdom of Belgium asks the Court to grant it a period of 6 months from the date of delivery of the present judgment in which to allow it to fulfil its obligations under the directive.
The Member States which intervened in support of the Kingdom of Belgium submit, in essence, that it is for the Commission to prove in clear terms the level of seriousness of the infringement in order to ensure the proportionality of the penalty. In the present case, the degree of seriousness established by the Commission is clearly too high. In particular, it would be appropriate for the amount of the penalty payment to decrease in step with the incremental execution of the present judgment. Furthermore, it is clear from the wording of Article 260(3) TFEU and a systemic interpretation of Article 260(2) and (3) TFEU that the EU legislature intended to introduce a reasonable period of time between the date of delivery of the judgment imposing a financial penalty and the date on which the related obligation to pay takes effect.
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Findings of the Court
As a preliminary matter, it must be borne in mind that, in each case, it is for the Court to determine, in the light of the circumstances of the case before it and according to the degree of persuasion and deterrence which appears to it to be required, the financial penalties appropriate, in particular, for preventing the recurrence of similar infringements of EU law (see, by analogy with Article 260(2) TFEU, judgment of 2 December 2014, Commission v Italy,
C‑196/13
,
EU:C:2014:2407
, paragraph
and the case-law cited).
As stated in paragraphs 60 and 61 of the present judgment, a penalty payment order is justified only in so far as the failure continues for which that penalty was imposed up to the time of the Court’s examination of the facts.
In the present case, as has been found in paragraph 68 of the present judgment, at the time of the examination of the facts, the measures necessary to ensure the full transposition of Directive 2014/61 into Belgian law had not yet been adopted or notified to the Commission.
In those circumstances, the Court considers that imposing a penalty payment on the Kingdom of Belgium, the only penalty sought by the Commission in the present case, is an appropriate financial means of ensuring that that Member State complies with its obligations under that directive and the Treaties.
By contrast, given that, as acknowledged by the Commission, the measures notified by the Kingdom of Belgium show progress towards a full transposition of Directive 2014/61 into Belgian law since the present action was brought, it is not inconceivable that, on the date of delivery of the present judgment, the transposition of the directive may be complete. Accordingly, a periodic penalty will be imposed only in so far as the failure to fulfil obligations persists on the date of delivery of the present judgment.
It should be noted that, in exercising its discretion in the matter, it is for the Court to set the penalty payment so that it is, first, appropriate to the circumstances and proportionate to the infringement established and the ability to pay of the Member State concerned (see, by analogy, judgments of 4 July 2000, Commission v Greece,
C‑387/97
,
EU:C:2000:356
, paragraph
, and of 14 November 2018, Commission v Greece,
C‑93/17
,
EU:C:2018:903
, paragraph
) and, second, does not exceed, in accordance with the second paragraph of Article 260(3) TFEU, the amount specified by the Commission.
In the assessment which is for the Court to carry out for the purposes of determining the amount of a penalty payment, the criteria which must be taken into consideration in order to ensure its coercive effect so that EU law is applied uniformly and effectively are, in principle, the duration and seriousness of the infringement and the ability to pay of the Member State in question. In applying those criteria, the Court must have regard, in particular, to the effects of the failure to fulfil its obligations on the public and private interests in question and to how urgent it is for the Member State concerned to be induced to fulfil its obligations (see, by analogy with Article 260(2) TFEU, judgment of 14 November 2018, Commission v Greece,
C‑93/17
,
EU:C:2018:903
, paragraph
and the case-law cited).
As regards the seriousness of the infringement, it must be found that the obligation to adopt the national measures for the purposes of ensuring that a directive is transposed in full and the obligation to notify those measures to the Commission are fundamental obligations incumbent on the Member States in order to ensure optimal effectiveness of EU law and that failure to fulfil those obligations must therefore be regarded as undoubtedly serious.
Although the Kingdom of Belgium has, since the expiry of the period prescribed in the reasoned opinion, made some progress in transposing Directive 2014/61 and in notifying the Commission of the national measures transposing it, nonetheless some provisions of that directive had, at the time of the Court’s examination of the facts, still not been transposed into national law in respect of part of the territory of the Kingdom of Belgium.
As regards the duration of the infringement, it should be recalled that that duration must be assessed by reference to the date on which the Court assesses the facts and not the date on which proceedings are brought before it by the Commission (see, by analogy with Article 260(2) TFEU, judgment of 14 November 2018, Commission v Greece,
C‑93/17
,
EU:C:2018:903
, paragraph
and the case-law cited).
In the present case, as is clear from paragraph 68 of the present judgment, the alleged failure had not yet been remedied at the time of the Court’s examination of the facts. It must therefore be held that that failure has continued since the expiry of the period prescribed in the reasoned opinion, as extended by the Commission until 28 February 2017. For the duration of an infringement to continue for almost 2½ years is significant having regard to the fact that, under Article 13 of Directive 2014/61, Member States were bound to transpose the provisions of the directive by 1 January 2016.
In the light of the foregoing and having regard to the discretion conferred on the Court under Article 260(3) TFEU, which provides that the penalty payment which it may impose cannot exceed the amount specified by the Commission, the Court considers that an order to pay a penalty of EUR 5000 per day is an amount which is appropriate for the purposes of ensuring that the Kingdom of Belgium fulfils the obligations incumbent on it under Article 13 of Directive 2014/61.
The Kingdom of Belgium’s line of argumentation in respect of a proportionally decreasing penalty payment cannot be accepted. The Court takes cognisance of the fact that the objective of the penalty payment sought is to bring to an end the Kingdom of Belgium’s failure to fulfil its obligations by only partially transposing Directive 2014/61 and not having notified all the measures necessary to ensure its transposition into Belgian law. To provide for a penalty payment which decreased proportionally to the gradual adoption and notification of the transposing measures would be liable to jeopardise the effectiveness of that penalty payment.
As regards the calculation of the penalty payment, it is, under Article 260(3) TFEU, for the Court to fix the date on which the obligation to pay takes effect.
In the present case, having exercised its discretion, the Court considers it appropriate that the date from which the penalty payment be calculated begin on the date of delivery of the present judgment, subject only to the reservations set out in paragraph 82 thereof. Furthermore, since it is not necessary for the Commission to undertake any complex factual assessment in determining when the failure to fulfil the obligations in question has come to an end, there is no need to provide for a penalty payment on a quarterly basis.
In the light of the foregoing, the Kingdom of Belgium must therefore be ordered to pay to the Commission, as of the date of the present judgment and until the Member State has put an end to the infringement found, a daily penalty payment of EUR 5000.
Costs
Under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the Kingdom of Belgium has been unsuccessful, the latter must be ordered to pay the costs.
In accordance with Article 140(1) of the Rules of Procedure, under which the Member States which have intervened in the proceedings are to bear their own costs, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Lithuania, Hungary, the Republic of Austria and Romania must bear their own costs.

On those grounds, the Court (Grand Chamber) hereby:

1.
Declares that, by not having adopted the laws, regulations and administrative provisions necessary to comply with Directive 2014/61/EU of the European Parliament and of the Council of 15 May 2014 on measures to reduce the cost of deploying high-speed electronic communications networks on the expiry of the period prescribed in the reasoned opinion of 30 September 2016, as extended by the European Commission, and, a fortiori, by not having notified the Commission of such transposing measures, the Kingdom of Belgium failed to fulfil its obligations under Article 13 of that directive;

2.
Declares that, by still not having adopted the provisions necessary to transpose Article 2(7) to (9) and (11), Article 4(5) and Article 8 of Directive 2014/61 into its national law, in respect of the Brussels Capital Region, by the time of the examination of the facts by the Court, and, a fortiori, not having notified the European Commission of such transposing measures, the Kingdom of Belgium partly persisted in its failure to fulfil its obligations;

3.
Orders that if the failure to fulfil obligations established in point 2 has continued until the day of delivery of the present judgment the Kingdom of Belgium must, from that date, pay the European Commission a penalty payment of EUR 5000 each day until it has complied with its obligations;

4.
Orders the Kingdom of Belgium to pay the costs;

5.
Orders the Federal Republic of Germany, the Republic of Estonia, Ireland, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Lithuania, Hungary, the Republic of Austria and Romania to bear their own costs.

[Signatures]
(
*1
)	Language of the case: French.