Opinion of the Advocate General — ECLI:EU:C:2003:342
Date: 2003-06-12
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Provisions governing the Institutions;Approximation of laws
Procedure: Action for failure to fulfil obligations - successful
Origin: Spain

Summary of the Judgment 
1. Actions for failure to fulfil obligations — judgment of the Court establishing such 
failure — Period allowed for compliance 
(Art. 228 EC) 
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SUMMARY — CASE C-278/01 
2. Actions for failure to fulfil obligations — judgment of the Court establishing such 
failure — Breach of the obligation to comply with the judgment — Financial 
penalties — Periodic penalty payment — Determination of the amount — Criteria 
(Art. 228(2) EC) 
3. Actions for failure to fulfil obligations — judgment of the Court establishing such 
failure — Breach of the obligation to comply with the judgment — Financial 
penalties — Periodic penalty payment — Determination of the amount — Failure 
to comply with Directive 76/160 concerning the quality of bathing water 
(Art. 228(2) EC) 
1. Article 228 EC does not specify the 
period within which a judgment estab­
lishing the failure of a Member State to 
fulfil its obligations must be complied 
with. However, 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. 
(see para. 27) 
2. According to Article 228(2) EC, if the 
Member State concerned has not taken 
the necessary measures to comply with 
the Court's judgment within the time-
limit laid down by the Commission in 
its reasoned opinion, the latter may 
bring the case before the Court of 
Justice, specifying the amount of the 
lump sum or penalty payment to be 
paid by the Member State concerned 
which it considers appropriate in the 
circumstances. 
In order to do this, the Commission 
must assess the circumstances as they 
appear on the expiry of the time-limit 
laid down in its reasoned opinion, 
issued on the basis of the first subpara­
graph of Article 228(2) EC. 
In that connection the Commission's 
suggestions cannot bind the Court and 
merely constitute a useful point of 
reference. In exercising its discretion, 
it is for the Court to fix the lump sum 
or penalty payment that is appropriate 
to the circumstances and proportionate 
both to the breach that has been found 
and to the ability to pay of the Member 
State concerned. 
(see paras 28-29) 
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COMMISSION v SPAIN 
3. A penalty payment imposed pursuant 
to the th i rd subpa rag raph of 
Article 228(2) must be such as to 
ensure that the Member State con­
cerned complies with its obligations 
and must therefore take account of the 
features of the infringement estab­
lished. In the case of a failure to attain 
the objectives set by Directive 76/160 
concerning the quality of bathing 
water, account must be taken, first, as 
regards the frequency of the penalty 
payment, of the fact that the quality of 
bathing water is assessed only on an 
annual basis, which means that the 
penalty payment must be imposed not 
on a daily basis but for each year of 
delay. The difficulty of attaining the 
objectives set by the Directive must 
also be noted. This means that the 
penalty payment should not be set at a 
fixed amount but should gradually 
decrease in line with the progress made 
by the defendant Member State in 
implementing the judgment establish­
ing its failure to fulfil its obligations. 
Finally, the assessment of the duration 
of the infringement for the purpose of 
fixing the amount of the penalty pay­
ment must also take account of the 
difficulty of carrying out the work 
required in a short time, given that 
the time-limits entailed by public pro­
curement procedures may not be 
reduced. 
(see paras 40, 42-43, 46-49, 53) 
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