Opinion of the Advocate General — ECLI:EU:C:2014:2172
Date: 2014-09-04
Based on: Treaty on the Functioning of the European Union (consolidated version 2008)
Subject matter: Provisions governing the Institutions
Procedure: Action for failure to fulfil obligations - successful
Origin: Greece

Summary — Judgment of the Court (Grand Chamber), 2 December 2014 1. Court establishing the failure of a Member State to fulfil its obligations — Period for implementation — Reference date for assessing whether there has been a failure to fulfil obligations (Art. 228(2) EC; Art. 260(2) TFEU) 2. Member States — Obligations — Implementation of directives — Failure to fulfil obligations — National system pleaded as Actions for failure to fulfil obligations — Judgment of the justification — Not permissible (Art. 258 TFEU) 3. Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Imposition of a penalty payment — Condition — Persistence of the failure to fulfil obligations until the date of delivery of the judgment (Art. 260(2) TFEU) 4. Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Determination of the form and of the amount — Discretion of the Court — Criteria (Arts 258 TFEU and 260(2) TFEU) 5. Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Calculation of the amount — Decreasing penalty payment (Art. 260(2) TFEU) 6. Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Lump sum — Whether the two penalties should be cumulated — Lawfulness (Art. 260(2) TFEU) 7. Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Imposition of a lump sum payment — Discretion of the Court — Criteria for assessment (Art. 260(2) TFEU) 1. See the text of the decision. (see paras 26, 27) 2. See the text of the decision. (see para. 29) 3. See the text of the decision. (see paras 47, 50, 51) 4. As regards the amount of the penalty payment imposed on a Member State and the form it should take, it is for the Court, in the exercise of its discretion, to set the penalty payment in such a way that it is both appropriate to the circumstances and proportionate to the infringement established and the ability of the Member State concerned to pay. The Commission’s proposals concerning the penalty payment cannot bind the Court and constitute merely a useful point of reference. Similarly, guidelines such as those set out in the communications of the Commission are not binding on the Court but contribute to ensuring that the Commission’s own actions are transparent, foreseeable and consistent with legal certainty when that institution makes proposals to the Court. In proceedings under Article 260(2) TFEU relating to a failure to fulfil obligations on the part of a Member State that has persisted notwithstanding the fact that that same failure to fulfil obligations has already been established in a first judgment delivered under Article 226 EC or Article 258 TFEU, the Court must remain free to set the penalty payment to be imposed in an amount and in a form that the Court considers appropriate for the purposes of inducing that Member State to bring to an end its failure to comply with the obligations arising under that first judgment of the Court. Therefore, in the context of the Court’s assessment, the basic criteria which must be taken into consideration in order to ensure that the penalty payment has coercive effect and that EU law is applied uniformly and effectively are, in principle, the duration of the infringement, assessed by reference to the time when the Court assesses the facts, not the time when the case is brought before it by the Commission, its seriousness and the capacity of the Member State concerned to pay by taking account of recent trends in the GDP of a Member State at the time of the Court’s examination of the facts. In applying those criteria, the Court must have regard, in particular, to the effects on public and private interests of the failure to comply and to the urgency for the Member State concerned to be induced to fulfil its obligations. (see paras 52, 53, 57, 58) 5. In order to ensure full compliance with a judgment of the Court, the penalty payment should be payable in its entirety until such time as the Member State has taken all the measures necessary to bring to an end the failure to fulfil obligations established. Nevertheless, in certain specific cases, a penalty which takes account of the progress that the Member State may have made in complying with its obligations may be envisaged. As regards the determination of the method for calculating that penalty payment and the schedule for payment, the decreasing penalty payment established on a six-monthly basis enables assessment of the state of progress of the measures for compliance with the Court’s judgment, by reference to the situation prevailing at the end of the period in question. (see paras 60-62) 6. See the text of the decision. (see para. 71) 7. See the text of the decision. (see paras 72-77)