Opinion of the Advocate General — ECLI:EU:C:2013:321
Date: 2013-05-16
Language of the case: Portuguese
Subject matter: Provisions governing the Institutions
Procedure: Action for annulment;Appeal - unfounded
Origin: Portugal

Summary — Judgment of the Court (Grand Chamber), 15 January 2014 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 — Special judicial procedure for the enforcement of judgments — Dealing with failure to fulfil obligations considered by Court as grounded on the basis of Article 258 TFEU (Art. 258 TFEU and 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 assessment of the measures adopted by the Member State to comply with the judgment of the Court of Justice — Limits (Art. 258 TFEU to 260 TFEU) 3. Judicial proceedings — Division of competences between the Court of Justice and the General Court — Action for annulment brought by a Member State against a Commission decision fixing the amount of the penalty payment due in compliance with a judgment of the Court of Justice — General Court’s jurisdiction to review the Commission’s assessment of the national legislation at issue — Limits (Art. 256(1), first para., TFEU and 260(2) TFEU) 4. Judicial proceedings — Statement of reasons for judgments — Scope (Statute of the Court of Justice, Art. 36) 1. Only a failure of a Member State to fulfil its obligations under the TFEU which the Court has held, on the basis of Article 258 TFEU, to be well founded may be dealt with under the procedure provided for in Article 260 TFEU. Unlike the procedure established under Article 258 TFEU, which is designed to obtain a declaration that the conduct of a Member State is in breach of EU law and to terminate that conduct, the procedure provided for under Article 260 TFEU has a much narrower ambit, since it is designed only to induce a defaulting Member State to comply with a judgment establishing a breach of obligations. Consequently, that latter procedure must be regarded as a special judicial procedure for the enforcement of judgments, in other words, as a method of enforcement. (see paras 39, 40) 2. Where, in the context of verification of compliance with a judgment delivered by the Court of Justice pursuant to Article 260 TFEU, a difference arises between the Commission and the Member State concerned as to whether national legislation or a national practice which the Court of Justice has not examined beforehand is appropriate for ensuring compliance with that judgment, the Commission cannot, by adopting a decision, resolve such a difference itself and draw from this the necessary inferences for the calculation of the penalty payment. While it is true that, when enforcing a judgment of the Court of Justice imposing a penalty payment on a Member State, the Commission must be able to assess whether the measures adopted by that Member State enable it to comply with the judgment establishing an infringement, nonetheless that power of appraisal cannot be exercised in a manner which is prejudicial to the exclusive jurisdiction of the Court of Justice to rule on the compliance of national legislation with EU law. Since, according to the system established by Articles 258 TFEU to 260 TFEU, the rights and duties of Member States may be determined and their conduct appraised only by a judgment of the Court of Justice, the Commission’s review of the measures adopted by a Member State for the purpose of complying with a judgment of the Court of Justice and the recovery of sums owed pursuant to the penalties imposed must be carried out having regard to the scope of the failure to fulfil obligations, as defined by the Court of Justice in its judgments delivered pursuant to Articles 258 TFEU and 260 TFEU. Moreover, allowing the Commission a greater margin of discretion as regards the assessment of measures designed to ensure compliance with a judgment delivered pursuant to Article 260(2) TFEU would lead to a breach of the procedural rights of defence available to the Member States in infringement proceedings. In accordance with Articles 258 TFEU to 260 TFEU, Member States which, in the view of the Commission, have not fulfilled their obligations under EU law are entitled, inter alia, to set out their position at a pre-litigation stage. The purpose of that stage of the procedure is to give the Member State concerned the opportunity to comply with its obligations or to present its case properly against the complaints set out by the Commission as regards its continued failure to fulfil its obligations. (see paras 41, 47-49, 52, 55, 56) 3. In the context of an action seeking annulment of the Commission decision determining the amount due from the Member State in terms of the penalty payment which it has been ordered to make by the Court of Justice, pursuant to Article 260(2) TFEU, the General Court also cannot give a ruling on the Commission’s assessment as to whether compliance with a judgment establishing a failure to fulfil obligations can be achieved through a national practice or national legislation which has not previously been examined by the Court of Justice. Were it to do so, the General Court would, inevitably, be required to make a ruling as to whether that practice or national legislation complied with EU law, thereby encroaching on the exclusive jurisdiction of the Court of Justice in that regard. (see para. 51) 4. See the text of the decision. (see para. 72)