Order — ECLI:EU:T:2016:417
Date: 2016-06-27
Language of the case: Portuguese
Court formation: Sixth Chamber
Subject matter: Provisions governing the Institutions
Procedure: Action for annulment - unfounded
Origin: Portugal

Summary — Order of the General Court (Sixth Chamber), 27 June 2016 1. 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 — Point at which the failure to fulfil obligations ceases — Entry into force of the legislation repealing the legislation incompatible with EU law —Power of the Commission to impose a penalty payment for the period between the delivery of the judgment for failure to fulfil obligations and the cessation of the latter (Art. 260(2) TFEU) 2. Actions for failure to fulfil obligations — Judgment of the Court of Justice establishing a failure to fulfil the obligation to comply with a judgment and imposing a penalty payment — Commission’s competence to recover a penalty payment fixed by the Court of Justice — Scope — Limits (Art. 260(2) TFEU) 3. EU law — Principles — Protection of legitimate expectations — Conditions — Specific assurances given by the authorities — Legal certainty — Requirement that acts producing legal effects be clear and precise 4. Actions for failure to fulfil obligations — Judgment of the Court of Justice establishing a failure to fulfil the obligation to comply with a judgment and imposing a penalty payment — Quantification of the penalty payment by a decision held to be unlawful — Power of the Commission to quantify the penalty payment by a new decision — No breach of the ne bis in idem principle (Art. 260(2) TFEU; Charter of Fundamental Rights of the European Union, Art. 50) 1. Where the end of an infringement depends on the adoption of a national measure, such as a repealing measure, it is the date of entry into force of that measure that must be taken into consideration in determining the date when infringement ended. In the case of a failure to fulfil obligations established in a judgment of the Court of Justice and consisting in the existence of legislation incompatible with EU law, that failure to fulfil obligations comes to an end when the national law repealing that incompatible legislation enters into force. The Commission is therefore justified in taking the view that, in accordance with such a judgment, a penalty payment must be imposed on the Member State concerned from the date when the said judgment was delivered, in respect of the period during which the legislation incompatible with EU law remained in force. (see para. 34) 2. The Commission is competent in principle to recover sums owed by Member States where the Court of Justice imposes a penalty payment on them under Article 260(2) TFEU. That competence means that the Commission is able to assess whether the conditions laid down by the Court in the judgment imposing a penalty payment are met in determining the date on which infringement in question ended. However, that competence does not permit the Commission to assess the conformity with EU law of a rule or conduct of a Member State on which the Court has not previously ruled. In a case where the failure to fulfil obligations established by the Court consists in failure to repeal the national legislation incompatible with EU law, the Commission cannot go beyond verifying that that legislation has actually been repealed. It cannot therefore hold that the repeal of the incompatible national legislation is insufficient and conclude that only new legislation can put an end to that incompatibility. In doing so, the Commission assesses the conformity of the new system with EU law, whereas the Court of Justice has not had the opportunity to rule on the matter. On the other hand, the Commission remains within the limits of the competence which it generally holds in relation to implementation of the EU budget where it quantifies the penalty payment without conducting a separate examination of the conformity of the new legislation with EU law, simply stating the date of entry into force of the national rule repealing the incompatible legislation, a repeal which the Court of Justice has considered sufficient to bring to an end the infringement established. (see paras 40-42) 3. See the text of the decision. (see paras 62, 63, 65) 4. It is inherent in the mechanism under Article 260(2) TFEU that the quantification made by the Commission is merely an act implementing the order for the Member State in question to make a penalty payment in accordance with the judgment delivered by the Court of Justice. Consequently, if it has quantified the penalty payment for the first time in a decision which the EU judicature has found to be unlawful, the Commission is entitled, and even required, to make a new quantification by means of a new decision, without, however, breaching the ne bis in idem principle. (see para. 72)