Judgment — ECLI:EU:C:2009:531
Date: 2009-09-10
Language of the case: Portuguese
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Provisions governing the Institutions;Free movement of goods
Concepts: General;Effects of the judgment;Financial penalties in cases of failure to comply with the judgment
Procedure: Action for failure to fulfil obligations - unfounded;Action for failure to fulfil obligations - inadmissible
Origin: Portugal

Summary of the Judgment 1. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Period for complying with the judgment (Art. 228 EC) 2. 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 (Arts 226 EC and 228(2) EC) 3. Actions for failure to fulfil obligations – Subject-matter of the dispute – Determination during the pre-litigation procedure – Reasoned opinion finding that a judgment of the Court has not been duly complied with (Arts 226 EC and 228(2) EC) 4. Actions for failure to fulfil obligations – Subject-matter of the dispute – Determination during the pre-litigation procedure – Reasoned opinion finding that a judgment of the Court has not been duly complied with (Arts 226 EC and 228(2) EC) 1. Although Article 228 EC does not specify the period within which a judgment of the Court establishing that a Member State has failed to fulfil its obligations must be complied with, it follows from settled case‑law that the importance of immediate and uniform application of Community law means that the process of compliance must be initiated at once and completed as soon as possible. In addition, the reference date for assessing whether there has been a failure to fulfil obligations under Article 228 EC is the date of expiry of the period prescribed in the reasoned opinion issued under that provision. (see paras 38-39) 2. Since the procedure laid down in Article 228(2) EC must be regarded as a special judicial procedure for the enforcement of judgments, in other words as a method of enforcement, only a failure of a Member State to fulfil its obligations under the Treaty which the Court has declared, on the basis of Article 226 EC, to be well founded may be dealt with under that procedure. (see para. 47) 3. Even though the procedure laid down in Article 228(2) EC must be regarded as a special judicial procedure for the enforcement of judgments of the Court of Justice, that procedure, like the procedure laid down in Article 226 EC, requires a pre‑litigation procedure to be followed. In this connection, in an action under Article 226 EC, the letter of formal notice sent by the Commission to a Member State and the reasoned opinion issued by the Commission delimit the subject-matter of the dispute, so that it cannot thereafter be extended. The opportunity for the Member State concerned to submit its observations, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations. Consequently, the reasoned opinion and the proceedings brought by the Commission must be based on the same complaints as those set out in the letter of formal notice initiating the pre-litigation procedure. The same is true of proceedings brought under Article 228(2) EC, the subject‑matter of which is circumscribed by the pre-litigation procedure provided for by that provision, meaning that the Commission, in its application, cannot extend the subject-matter of the dispute by putting forward new complaints which were not in the reasoned opinion in which the Commission specified the points on which the Member State concerned had not complied with the judgment of the Court finding a failure to fulfil obligations. Admittedly, the requirement that the subject-matter of proceedings brought under Articles 226 EC and 228(2) EC should be circumscribed by the pre-litigation procedure provided for by those provisions cannot be stretched so far as to mean that in every case the complaints set out in the letter of formal notice, the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject-matter of the proceedings has not been extended or altered. Thus, where legislation is altered during the pre‑litigation procedure, the action may relate to provisions of national law which are not the same as those referred to in the reasoned opinion. That is true in particular where, after the reasoned opinion is issued, a Member State amends the national provisions referred to in the reasoned opinion in order to address the complaints relating to the failure to comply with the judgment establishing the failure to fulfil obligations. However, in proceedings brought under Article 228(2) EC, the Commission cannot criticise national provisions which, although applicable during the earlier pre-litigation procedure, were not referred to in that procedure, either expressly or, where those provisions relate directly to the aspects of the national legislation criticised in the reasoned opinion, implicitly. Since the Commission is required, in the reasoned opinion issued under Article 228(2) EC, to specify the points on which the Member State concerned has not complied with the Court’s judgment finding a failure to fulfil obligations, the subject-matter of the proceedings cannot be extended to obligations not referred to in the reasoned opinion; otherwise essential procedural requirements intended to guarantee proper conduct of the proceedings would be infringed. Thus, the Commission cannot submit for the first time at the application stage a complaint which it did not put forward during the pre-litigation procedure without extending the subject-matter of the proceedings and, consequently, without infringing the rights of the defence. (see paras 54-60, 77) 4. The purpose of the procedure provided for in Article 228(2) EC, like that of the pre-litigation procedure provided for in Article 226 EC, is to give the Member State concerned the opportunity to fulfil its obligations under Community law or to put its case properly against the complaints set out by the Commission as regards its continued failure to fulfil its obligations. The reasoned opinion and the action provided for in Article 228(2) EC must set out the Commission’s complaints coherently and precisely in order that the Member State and the Court may appreciate exactly the extent to which the judgment finding a failure to fulfil obligations has been complied with, a condition which is necessary in order to enable the Member State to avail itself of its right to defend itself and the Court to determine whether there is a continued failure to fulfil obligations. (see paras 67-68)