Opinion of the Advocate General — ECLI:EU:C:2014:2162
Date: 2014-09-04
Language of the case: Italian
Subject matter: Environment;Approximation of laws;Waste
Procedure: Action for failure to fulfil obligations - successful
Origin: Greece;Italy

summary of the situation of the sites surveyed in the 2002 report of the Corpo Forestale dello Stato (CFS) (National Forestry Authority). 13 Taking the view that the Italian Republic had provided only incomplete information on the measures adopted in order to comply with the judgment in Commission v Italy (EU:C:2007:250), the Commission sent the Italian Republic a letter of formal notice on 1 February 2008, inviting it to submit its observations in that regard within two months. At intervals between 10 April 2008 and 26 May 2008, the Italian Republic provided the Commission with new data relating to each of the Italian regions and the autonomous provinces of Trento and Bolzano, and with information on the new national system for monitoring the territory. 14 At a meeting in Brussels on 24 September 2008 and in a letter of 12 November 2008, the Commission criticised the content of the information provided by the Italian Republic. On 26 June 2009, having examined the various documents subsequently submitted to it by the Italian Republic, the Commission sent that Member State a reasoned opinion under Article 228(2) EC in which it concluded that the general failure to fulfil obligations, which had been established by the Court in the judgment in Commission v Italy (EU:C:2007:250), persisted. 15 At the request of the Italian Republic, the deadline by which the Commission had asked it to respond to the reasoned opinion was deferred to 30 September 2009 (‘the deferred deadline’). The Italian Republic’s response was received by the Commission on 1 October 2009. The Italian Republic went on to send the Commission other updated documents, between 13 October 2009 and 19 February 2013, relating to compliance with the judgment in Commission v Italy (EU:C:2007:250). 16 In the first place, the Commission found, in the light of the information submitted by the Italian Republic, that that Member State had not yet adopted all the measures necessary to comply with the judgment in Commission v Italy (EU:C:2007:250), since 218 sites in 18 of the 20 Italian regions were not in conformity with Articles 4 and 8 of Directive 75/442. In the second place, the Commission inferred from the existence of those 218 illegal sites that there must be sites operating without a permit, in breach of Article 9 of that directive. In the third place, the Commission found that 16 of those 218 sites not yet in conformity contained hazardous waste, in breach of the requirements under Article 2(1) of Directive 91/689. In the last place, the Commission found that, in the case of five of the landfills in existence on 16 July 2001, the Italian Republic had not produced evidence to show that those sites were the subject of a conditioning plan or a definitive closing-down measure in accordance with Article 14 of Directive 1999/31. 17 Taking the view that the Italian Republic had not adopted, by the deferred deadline, all the measures necessary to ensure compliance with the judgment in Commission v Italy (EU:C:2007:250), the Commission brought the present action on 16 April 2013. Developments in the course of the present proceedings 18 By letter of 10 April 2014, the Court asked the Italian Republic and the Commission to provide updated information, by 16 May 2014 at the latest, on compliance with the judgment in Commission v Italy (EU:C:2007:250). The new landfills surveyed after 2002, mentioned by the parties in their pleadings, were also to be specified. 19 In its response, the Italian Republic set out an updated summary of the action that had been taken at the 218 sites referred to by the Commission in its application initiating proceedings. The Italian Republic also provided a list of 71 new sites, which, it contends, although not identified in the 2002 CFS report, are covered by the Commission’s complaints. 20 For its part, the Commission stated, first of all, in its response to the Court’s request for information and at the hearing, that, according to the most recent information available to it, 198 sites have not yet been brought into conformity with Article 4 of Directive 75/442, two of which are not in conformity with Articles 8 and 9 of that directive either and 14 of which do not meet the requirement laid down in Article 2(1) of Directive 91/689. Next, according to the information exchanged at a meeting between the Italian authorities and the Commission on 23 May 2014, only two landfills have still not been brought into conformity with Article 14 of Directive 1999/31. Lastly, according to the Commission, no new site surveyed by the Italian authorities is covered by the present action. Admissibility of the action Arguments of the parties 21 The Italian Republic disputes the admissibility of the present action, contending first that the sources of the information on which the Commission relies as the basis for its action — in particular, the CFS reports and the statements made by the Italian Republic in the course of informal meetings with the Commission — cannot form the basis for an action under Article 260(2) TFEU since the financial penalties that may be imposed in such proceedings relate to failure to fulfil obligations specific to each illegal landfill. 22 Second, the Italian Republic contends that the Commission extended the scope of the present action by taking into account, in assessing the measures to be adopted by the Italian authorities pursuant to Article 260(2) TFEU, new sites that were not referred to in the CFS report. 23 Third, the subject-matter of the dispute as summarised by the Commission in its note of 14 June 2011 to the Italian Republic is framed in terms different from those used in the drafting of the reasoned opinion and the Commission should accordingly have issued a new reasoned opinion. 24 Fourth, the Italian Republic contends that the judgment in Commission v Italy (EU:C:2007:250) does not make any reference to inadequacies in the Italian legislation and that the Commission has not identified the specific provisions in that legislation which it deems to be inadequate. According to the Italian Republic, without such particulars, it cannot defend itself and the action is inadmissible. In any event, application of the national legislation in question was made difficult by the complexity of the situation to be remedied. 25 Fifth, the Italian Republic contends that it has always made every effort to rectify the infringement established by the Court in its judgment in Commission v Italy (EU:C:2007:250). It accordingly contends that the present action should be dismissed. 26 For its part, the Commission states first that the Court has held, in its judgment in Commission v Italy (EU:C:2007:250), that the CFS report can be regarded as a valid source of information for the purposes of initiating infringement proceedings and that the discussions to that end, during the meetings between the Commission and the Italian authorities, were conducted on the basis of that document. 27 Second, the Commission submits that it is entirely legitimate to take into account, at the stage of enforcement of the judgment, other sites not yet in conformity and known to the competent authorities, inasmuch as those sites necessarily fall within the general and persistent failure to fulfil obligations established in the judgment in Commission v Italy (EU:C:2007:250). 28 Third, the note of 14 June 2011 merely sets out the situation as it had evolved in the wake of the reasoned opinion. It was not necessary, therefore, to send the Italian Republic a new reasoned opinion. 29 Fourth, according to the Commission, it is fundamental that the Italian Republic have an appropriate legislative framework for proper waste management. In this regard, the Italian authorities themselves took the view that amendment of the legislation would facilitate compliance with the judgment in Commission v Italy (EU:C:2007:250). 30 Fifth, the Commission states that it was not until the reasoned opinion had been sent that the Italian authorities began to provide it with coherent and credible information. Findings of the Court 31 The Italian Republic’s argument regarding the evidential value of the information on which the Commission relied in the present case — the CFS report and the statements made by the Italian Republic — must be rejected since it does not concern the admissibility of the Commission’s action. 32 As regards the preliminary plea of inadmissibility raised by the Italian Republic, concerning the reference in the Commission’s application to new sites that are not in conformity, it should be observed that the procedure laid down in Article 260(2) TFEU must be regarded as a special judicial procedure for the enforcement of judgments of the Court, in other words, as a method of enforcement. Consequently, failure by a Member State to fulfil its obligations under the Treaty can be dealt with under that procedure only in relation to infringements that the Court, ruling on the basis of Article 258 TFEU, has already established (see, to that effect, judgment in Commission v Germany, C‑95/12, EU:C:2013:676, paragraph 23). 33 In the present case, however, it must be recalled that, in its judgment in Commission v Italy (EU:C:2007:250), the Court’s finding that there was a general and persistent failure to fulfil obligations was based not only on the 2002 CFS report, but also on other information, such as the reports drawn up by national parliamentary commissions of inquiry or official documents emanating, in particular, from regional authorities. In those circumstances, in so far as the Italian Republic confines itself to complaining that, in the present action, the Commission has referred to certain sites despite the fact that they are not mentioned in the CFS report, that argument must be rejected, for such sites must be regarded as necessarily encompassed by the general and persistent failure to fulfil obligations established in the first action brought under Article 226 EC (now Article 258 TFEU) (see, by analogy, in the context of an action under Article 226 EC, judgment in Commission v Ireland, C‑494/01, EU:C:2005:250, paragraphs 37 to 39). 34 As for the inference that the Italian Republic draws from the note of 14 June 2011 — that the Commission extended the subject-matter of the dispute beyond the matters covered by the reasoned opinion — it is settled case-law that, 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 establishing 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 (see judgment in Commission v Portugal, C‑457/07, EU:C:2009:531, paragraph 60). 35 In the present case, as the Advocate General observed in point 35 of her Opinion, the Italian Republic clearly has not established that the obligations referred to in the reasoned opinion had been altered by the note. The preliminary plea of inadmissibility relating to that note must therefore be rejected. 36 Furthermore, in confirming the need for the Italian Republic to amend its legislation for the purposes of complying with the judgment in Commission v Italy (EU:C:2007:250), the Commission is not relying on an obligation in respect of which the Court did not establish an infringement in that judgment, but is merely indicating, for the purposes of establishing the failure to fulfil obligations complained of, the nature of the measures, which — according to the Commission — that Member State must adopt if it is to comply with that judgment. 37 As regards the argument that the Italian Republic cooperated with the Commission throughout the procedure, suffice it to state that although, if proved, that fact may be taken into consideration for the purposes of determining the financial penalties, it cannot affect the admissibility of the action. 38 It follows from all the foregoing considerations that the action is admissible. The failure to fulfil obligations Arguments of the parties 39 The Commission finds, in the light of the information submitted by the Italian authorities in their response of 1 October 2009 and the additional information set out in a note of 30 October 2009, that, by the deferred deadline, there were still 368 — or even 422 — sites located throughout the entire territory of the Italian Republic, with the exception of the Valle d’Aosta region, that had not been brought into conformity with Articles 4, 8 and 9 of Directive 75/442. Of those sites, 15 — or even 23 — containing hazardous waste are not in conformity with Article 2(1) of Directive 91/689 either. The Commission states that, according to that information, the cleaning-up or restoration works were, depending on the site, incomplete, or merely planned or still outstanding. Other sites had been sequestrated. 40 The Commission submits that the Italian Republic ought to have put in place general, long-term structural measures in order to remedy the general and persistent failure to fulfil obligations established by the Court in its judgment in Commission v Italy (EU:C:2007:250). The establishment of a failure to fulfil obligations of that nature shows that the enforcement system provided for in the Italian legislation was inadequate, and indeed led the Italian authorities to envisage amending it for the purposes of complying with that judgment. 41 The Commission stated at the hearing that the disagreement between the parties concerns the obligations arising under Article 4 of Directive 75/442 and not the number of illegal sites. Under the first paragraph of Article 4, the Italian Republic is required not only to remove waste and no longer to use the sites concerned as landfills, but also to assess, in respect of each site, whether waste recovery measures are necessary. Accordingly, although the second paragraph of Article 4 of that directive requires Member States to take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste, such measures are not sufficient to satisfy the obligations arising under the first paragraph. Yet, according to the information available on the date of the hearing, the cleaning up and/or restoration operations for those sites, located throughout almost all the Italian regions, are still in progress. 42 As regards Article 14(a) to (c) of Directive 1999/31, the Commission submits that, by the deferred deadline, at least 93 landfills in existence on 16 July 2001, located in more than 10 regions, still did not meet the requirements laid down in Article 14. According to the Italian authorities’ response to the reasoned opinion, for certain sites, no conditioning plan had been submitted or approved and no definitive decision had yet been adopted as to their closure or decommissioning. For other sites, the data provided was incomplete or unclear so that, for example, in the case of certain landfills, no evidence of their closure or decommissioning by the deferred deadline had been produced. For yet other landfills, no information had been submitted at all. 43 The Italian Republic contends, by contrast, that it has adopted all the measures necessary for the purposes of complying with the judgment in Commission v Italy (EU:C:2007:250). 44 First of all, the Italian Republic argues that the national authorities have made all the sites secure and that Article 4 of Directive 75/442 does not impose an obligation to restore or clean up sites. Next, no infringement of Articles 8 and 9 of Directive 75/442 has been established, since all the 218 sites which, according to the application, had not been brought into conformity by the day on which the proceedings were brought before the Court were inactive by the deferred deadline. Furthermore, most of those sites have been cleaned up or are undergoing transition to traditional land uses. Lastly, since the landfills designated by the Commission as not meeting the requirements laid down in Article 14(a) to (c) of Directive 1999/31 are closed, that provision is no longer applicable to them. Findings of the Court 45 The first point to be noted is that, since the FEU Treaty abolished the reasoned opinion stage in infringement proceedings under Article 260(2) TFEU, the reference date for assessing whether there has been an infringement for the purposes of Article 260(1) TFEU is the deadline set in the letter of formal notice issued in accordance with the first subparagraph of Article 260(2) TFEU (see judgment in Commission v Spain, C‑184/11, EU:C:2014:316, paragraph 35 and case-law cited). 46 Nevertheless, where the proceedings for failure to fulfil obligations have been brought on the basis of Article 228(2) EC and a reasoned opinion has been issued before the date of entry into force of the Treaty of Lisbon — that is to say, before 1 December 2009 — the reference date is the deadline set in the reasoned opinion (see judgment in Commission v Spain, EU:C:2014:316, paragraph 36 and case-law cited). 47 In the present case, since the Commission issued the reasoned opinion on 26 June 2009 on the basis of Article 228(2) EC, the reference date for assessing whether there has been a failure to fulfil obligations is the deferred deadline of 30 September 2009. 48 In addition, according to settled case-law, it is for the Commission to provide the Court, in the course of such proceedings, with the information necessary to determine the extent to which a Member State has complied with a judgment declaring it to be in breach of its obligations. Where the Commission has adduced sufficient evidence to show that the breach of obligations has persisted, it is for the Member State concerned to challenge in substance and in detail the information produced and the consequences flowing therefrom (see judgment in Commission v Italy, C‑119/04, EU:C:2006:489, paragraph 41 and case-law cited). 49 In the first place, as regards the Commission’s complaints concerning failure to comply with Directive 75/442, the arguments relating to Articles 4, 8 and 9 of that directive should be examined in turn. 50 As regards, first, the complaint relating to infringement of Article 4 of Directive 75/442, the Commission submits that compliance with that provision requires not merely that sites be closed down or made secure, but also that old illegal sites be cleaned up. 51 In this connection, the Court pointed out in paragraph 37 of its judgment in Commission v Italy (EU:C:2007:250) that, even though the first paragraph of Article 4 of Directive 75/442 does not specify the actual content of the measures which must be taken in order to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, that provision is none the less binding on the Member States as to the objective to be achieved, whilst leaving them a measure of discretion in assessing the need for such measures (see also, to that effect, judgments in Commission v Ireland, EU:C:2005:250, paragraph 168; Commission v Portugal, C‑37/09, EU:C:2010:331, paragraph 35; and Commission v Greece, C‑600/12, EU:C:2014:2086, paragraph 51). Accordingly, it is not possible, in principle, to draw the direct inference from the fact that a situation is not in conformity with the objectives laid down in the first paragraph of Article 4 of Directive 75/442 that the Member State concerned has necessarily failed to fulfil its obligations under that provision. Nevertheless, the Court has held that a significant deterioration in the environment over a protracted period without any action being taken by the competent authorities indicates, in principle, that the Member State concerned has exceeded the discretion conferred on it by that provision (see also to that effect, inter alia, judgments in Commission v Ireland, EU:C:2005:250, paragraph 169; Commission v Portugal, EU:C:2010:331, paragraph 36; and Commission v Greece, EU:C:2014:2086, paragraph 52). 52 In this connection, the Court has had occasion to hold that a deterioration in the environment is inherent in the presence of waste in a landfill irrespective of the nature of the waste in question, and that merely closing down a landfill, or covering waste with earth and rubble, cannot suffice for compliance with the obligations arising in particular under Article 4 of Directive 75/442 (see, to that effect, judgment in Commission v Portugal, EU:C:2010:331, paragraph 37). 53 That being so, it is necessary to reject the Italian Republic’s argument that the measures taken to close down and make secure the sites referred to by the Commission in the present action, if proved genuine, suffice for compliance with the requirements laid down in Article 4 of Directive 75/442. On the contrary, as the Commission correctly submits and as the Advocate General stated in points 65 and 66 of her Opinion, a Member State is also required, under Article 4, to determine whether it is necessary to clean up old illegal sites and, if so, to clean them up. 54 It should be added that the visits to and inspections of the illegal landfills carried out by the Italian authorities, and the summaries to which they gave rise, show that the Italian Republic was fully aware of the threat that those landfills pose to human health and the environment. Similarly, as the Advocate General pointed out in point 67 of her Opinion, the Italian Republic provided information, in the course of these proceedings, on the cleaning up of landfills. That Member State cannot contend, therefore, that it was unaware that full compliance with the judgment in Commission v Italy (EU:C:2007:250) also entailed the adoption of measures relating to the cleaning up of the landfills in question. 55 In the present case, it is common ground that, on expiry of the deferred deadline, cleaning-up works for certain sites were still in progress or had not been started. In respect of other sites, the Italian Republic has not provided any information that would make it possible to establish the date on which the cleaning-up operations, if any, were implemented. In those circumstances, the inevitable conclusion is that the cleaning-up works required for the sites referred to by the Commission had not been completed by the deferred deadline. 56 It follows from the foregoing that the Commission’s complaint alleging the continuing infringement of Article 4 of Directive 75/442 is well founded. 57 As regards, secondly, the complaint relating to infringement of Article 8 of Directive 75/442, it should be recalled that that provision, which inter alia implements the principle that preventive action should be taken, provides that the Member States have the task of ensuring that the holder of waste has it handled by a private or public waste collector or by an undertaking which carries out waste disposal and recovery operations, or recovers or disposes of it himself in accordance with that directive (see judgment in Commission v Ireland, EU:C:2005:250, paragraph 179 and case-law cited). 58 The Court has held, moreover, that such an obligation is not satisfied where a Member State confines itself to ordering the sequestration of the illegal landfill and prosecuting the operator of the landfill (see, inter alia, judgments in Commission v Ireland, EU:C:2005:250, paragraph 182 and case-law cited, and Commission v Portugal, EU:C:2010:331, paragraph 55). 59 In the present case, the Italian Republic in no way contends that, where the holder of the waste in question did not recover or dispose of it, that waste was handled by a private or public waste collector or by an undertaking which carries out those operations. That Member State submits only that the sites in question had been closed down by the deferred deadline and that the relevant criminal penalties laid down in Italian law are adequate. 60 It follows that, on the expiry of the deferred deadline, the Italian Republic continued to default on the specific obligation imposed on it by Article 8 of Directive 75/442, and that the Commission’s complaint regarding the infringement of that provision must be upheld. 61 Thirdly, as regards the complaint relating to infringement of Article 9 of Directive 75/442, it should be recalled, first of all, that that provision imposes on the Member States obligations formulated in clear and unequivocal terms to achieve a certain result, under which undertakings or establishments which carry out waste disposal operations in those States must hold a permit. The Member States therefore have the task of making sure that the permit system set up is in fact applied and complied with, in particular by conducting appropriate checks for that purpose and ensuring that operations carried out without a permit are in fact brought to an end and punished (see, to that effect, judgment in Commission v Ireland, EU:C:2005:250, paragraphs 116 and 117). 62 Furthermore, the permit system referred to in Article 9 of Directive 75/442 is intended, as is apparent from the very wording of that provision, to enable Article 4 of the directive to be implemented correctly, in particular by ensuring that disposal operations carried out under such permits meet the various requirements laid down in Article 4 (see, to that effect, judgment in Commission v Ireland, EU:C:2005:250, paragraphs 118 and 131). 63 It follows that merely closing down a landfill is no more sufficient for compliance with the obligation under Article 9 of Directive 75/442 than it is for compliance with the obligations under Articles 4 and 8 of that directive. 64 In the present case, again with regard to its infringement of Article 9 of Directive 75/442, the Italian Republic merely asserts that, by the deferred deadline, all the sites referred to by the Commission had been closed down. Moreover, that Member State concedes in its pleadings that the operators of some of those sites have never had a permit within the meaning of that provision. It follows that, on the expiry of the deferred deadline, the Italian Republic continued to infringe its obligation under that provision. Accordingly, the Commission’s complaint regarding Article 9 must be upheld. 65 In the second place, as regards the complaint relating to infringement of Article 2(1) of Directive 91/689, that provision states that Member States are to take the necessary measures to require that on every site where tipping of hazardous waste takes place the waste is recorded and identified. 66 It follows from the very wording of that provision that the Member States are required to record and identify in a systematic manner all the hazardous waste discharged on their territory, in order thereby to ensure, in accordance with the objective set out in the sixth recital in the preamble to Directive 91/689, that the disposal and recovery of hazardous waste is monitored in the fullest possible manner (judgment in Commission v Greece, C‑163/03, EU:C:2005:226, paragraph 63). 67 In the present case, suffice it to state that the Italian Republic has not contended — still less proved — that, by the deferred deadline, it had exhaustively recorded and identified, in accordance with Article 2(1) of Directive 91/689, all the hazardous waste discharged in the landfills referred to by the Commission. On that date, therefore, the Italian Republic still failed to ensure compliance with the obligation arising under that provision. 68 In the third place, as regards the complaint relating to infringement of Article 14(a) to (c) of Directive 1999/31, it should be recalled that, by authorising the operation of a landfill without a site conditioning plan having been submitted to, and approved by, the competent authorities beforehand, a Member State fails to fulfil its obligations under that provision (see, to that effect, judgment in Commission v Slovakia, C‑331/11, EU:C:2013:271, paragraphs 34 to 39). 69 In the present case, it should be observed that the Italian Republic in no way contends that conditioning plans for the purposes of Article 14 of Directive 1999/31 for the sites in question were filed with the competent authority. The Italian Republic states merely that, by the deferred deadline, all the landfills to which the infringement of Article 14 of Directive 1999/31 relates had been closed down. However, as can be seen from that Member State’s pleadings, some of those landfills were opened without a permit and no formal closing-down measure was adopted for those sites. In those circumstances, the inevitable conclusion is that, on that date, the Italian Republic also still failed to fulfil its obligations under Article 14(a) to (c) of Directive 1999/31. 70 In the light of all the foregoing, it must be held that, by failing to adopt, by the deferred deadline, all the measures necessary to ensure compliance with the judgment in Commission v Italy (EU:C:2007:250), the Italian Republic has failed to fulfil its obligations under Article 260(1) TFEU. Financial penalties Arguments of the parties 71 The Commission claims that the payment of both a penalty payment and a lump sum should be ordered, on the ground that the imposition of a penalty payment alone, under Article 260 TFEU, is not a sufficient inducement to Member States to comply with their obligations without delay following the establishment of a failure to fulfil obligations under Article 258 TFEU. 72 As regards the amount of the penalty payment and the lump sum, the Commission bases its approach on its Communication of 13 December 2005, entitled ‘Application of Article [260 TFEU]’ (SEC(2005) 1658), as updated by the Commission Communication of 31 August 2012, entitled ‘Updating of data used to calculate lump sum and penalty payments to be proposed by the Commission to the Court of Justice in infringement proceedings’ (C(2012) 6106 final). 73 In the present case, the Commission considers a penalty payment of EUR 256 819.20 per day to be appropriate in the circumstances. That figure is arrived at by multiplying an initial flat-rate amount of EUR 640 per day by: (i) a coefficient for seriousness of 8 on a scale of 1 to 20; (ii) a coefficient for duration of 3 on a scale of 1 to 3; and (iii) a fixed amount, ‘the n factor’, reflecting both the Italian Republic’s capacity to pay and the number of votes it has in the Council of the European Union (16.72). 74 As regards the seriousness of the infringement, the Commission refers, in the first place, to the importance of the provisions in question, which are a fundamental instrument for the purposes of protecting human health and the environment. Given the particular importance of Article 4 of Directive 75/442 (Commission v Greece, C‑387/97, EU:C:2000:356), the fact that certain sites have now been brought into conformity with Articles 8 and 9 of that directive can have only a minor effect on the penalty that ought to be imposed by the Court. According to the Commission, it should also be recalled that, in its judgment in Commission v Italy (EU:C:2007:250), the Court found that the Italian Republic had ‘generally and persistently’ failed to fulfil its obligations. 75 In the second place, the Commission highlights the effects of the infringement on public and private interests, such as the noxious smells and noise that accompany the discharge of waste, the pollution of the surrounding area, the risk that the pollution will have repercussions on human health, and the alteration of natural landscapes. 76 The Commission submits, in the third place, that the Court’s case-law concerning waste disposal is settled and that the full import of the provisions infringed is therefore clear and unambiguous. 77 In the fourth place, even though the situation has improved considerably since the start of the procedure, when 5 301 illegal sites had been counted, the Commission argues that account should be taken of the fact that the Italian Republic has been the subject of other infringement proceedings relating both to waste management and other sectors, some of which have culminated in judgments establishing a failure to fulfil obligations. 78 As regards the duration of the infringement, the Commission states that a period of 65 months has elapsed between 26 April 2007, the date on which the judgment in Commission v Italy (EU:C:2007:250) was delivered, and 24 October 2012, the date of the Commission’s decision to bring the present action before the Court. 79 The Commission suggests that the amount of the penalty payment should decrease in step with the progress made by the Italian Republic towards complying with the judgment in Commission v Italy (EU:C:2007:250). The method of calculating that penalty payment would consist in counting the existing illegal sites — those containing hazardous waste being counted twice — and then dividing the amount of the penalty payment by the number thus obtained. The amount of the penalty payment would accordingly decrease in step with each site brought into conformity. In view of the continued evolution of the situation as regards illegal sites in Italy, the Commission suggests that the penalty payment be calculated on a six-monthly basis. 80 Moreover, in response to a question put by the Court at the hearing on the effectiveness of a decreasing penalty payment in a situation where there is a considerable difference between the positions of the parties, the Commission stated that its disagreement with the Italian Republic concerns what measures that Member State is required to adopt in order to comply with Article 4 of Directive 75/442. In those circumstances, the Commission believes that, should the Court confirm, in the present judgment, the interpretation of Article 4 argued for by the Commission, the Italian Republic will comply with that judgment and will continue to provide the Commission with information relating to the measures adopted for each site. 81 As regards the amount of the lump sum, the Commission suggests that the method used to calculate this should be to multiply an initial flat-rate amount set at EUR 210 per day by: (i) a coefficient for seriousness and an ‘n’ factor, the values of which (8 and 16.72, respectively) are identical to those suggested for the calculation of the penalty payment; and (ii) the number of days for which the failure to fulfil obligations has continued. Thus, the amount of the lump sum ought to be equal to the figure obtained by multiplying EUR 28 089.60 by the number of days which have elapsed between the date on which the judgment in Commission v Italy (EU:C:2007:250) was delivered and the date of the present judgment. 82 For its part, the Italian Republic observes that the application of financial penalties would take away from the resources allocated to environmental management by the regions and local authorities. 83 As regards the seriousness of the infringement, the Italian Republic contends that the seriousness of its failure to fulfil obligations is negligible as compared with the seriousness of the failure to fulfil obligations which gave rise to the judgment in Commission v Italy (EU:C:2007:250). In addition, the national authorities do not have control over the failure to fulfil obligations complained of, which stems from a factual situation that is a consequence of past conduct, meaning that more time has to be allowed to bring the sites into conformity. 84 As regards the duration of the infringement, the Italian Republic observes that all the sites in relation to which illegal operation is alleged have long been inactive. 85 The Italian Republic stated at the hearing that it did not wish to submit observations on the Commission’s suggestion regarding the imposition of a decreasing penalty payment since it disputes the very existence of the alleged failure to fulfil obligations. Findings of the Court Preliminary observations 86 It should be recalled that, in each case, it is for the Court to determine, in the light of the circumstances of the case before it and according to the degree of persuasion and deterrence which appears to it to be required, the financial penalties appropriate, in particular, for preventing the recurrence of similar infringements of EU law (see, to that effect, judgment in Commission v Spain, EU:C:2014:316, paragraph 58 and case-law cited). The penalty payment 87 Having held that the Italian Republic failed to comply, by the deferred deadline, with the judgment in Commission v Italy (EU:C:2007:250), the Court may impose on that Member State the payment of a penalty payment if the failure to fulfil obligations continues up to the time of the Court’s examination of the facts (see, to that effect, judgment in Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 96 and case-law cited). 88 In order to determine whether the failure on the part of the Italian Republic to fulfil its obligations has continued up to the time of that examination, it is necessary to appraise the measures which, according to that Member State, were adopted after the deferred deadline. 89 At the hearing, the Commission stated that there are 200 sites, located in 18 of the 20 Italian regions, that have still not been brought into conformity with the relevant provisions. In particular, according to the Commission, 198 sites are not yet in conformity with Article 4 of Directive 75/442, two of which are not in conformity with Articles 8 and 9 of that directive either, and 14 of which, containing hazardous waste, are moreover not in conformity with Article 2(1) of Directive 91/689. Also, only two landfills remain for which, in breach of Article 14(a) to (c) of Directive 1999/31, no conditioning plan or definitive closing-down measures have been adopted. For its part, the Italian Republic has continued to dispute any infringement of those provisions, reiterating, in essence, the arguments set out in the defence and rejoinder, such as the arguments that Article 4 of Directive 75/442 does not impose any obligation to clean up illegal sites and that all the sites referred to by the Commission have long been inactive. That Member State has also stated that it had been unable to find one of the two sites referred to in connection with Articles 8 and 9 of Directive 75/442, namely, the Altamura-Sgarrone site in Matera (Basilicata), because that site was not identified properly by the CFS. 90 In this connection, it should be recalled, first of all, as stated in paragraphs 50 to 63 above and contrary to the assertions made by the Italian Republic, that, in order to comply with the obligations arising under Articles 4, 8 and 9 of Directive 75/442, it is not sufficient to close down all the sites concerned. As regards, more specifically, the Altamura-Sgarrone site, it must be pointed out that, in the documents accompanying its defence, the Italian Republic provided information on the cleaning-up measures planned for that site. It was not until the rejoinder stage that that Member State mentioned confusion between that site and another site, adding, moreover, that the Municipality of Altamura was not in the Basilicata region but in Puglia. The statements made by the Italian Republic in that connection, even if proved, cannot call in question the persistence of the failure to fulfil obligations, because that failure to fulfil obligations does not simply arise from the fact that a specific number of sites have not been cleaned up: rather, it consists in the general and persistent failure to comply with the obligations under the abovementioned provisions. The circumstances debated by the parties before the Court on this purely factual point cannot be considered as proof that the failure to fulfil obligations complained of has been brought to an end. 91 Next, the Commission stated, both in its written response to the questions put by the Court and at the hearing, that the Italian Republic still does not record and identify the hazardous waste present in 14 sites. Given that there is nothing in the documents before the Court to suggest that such a record exists, it must be held that, in respect of those sites, that Member State also continues to default on its obligation under Article 2(1) of Directive 91/689. 92 Lastly, as regards the two landfills referred to as still not being in conformity with Article 14(a) to (c) of Directive 1999/31, suffice it to point out that the Italian Republic has not demonstrated, in connection with those landfills, the submission or approval of conditioning plans or definitive closing-down decisions. 93 In the light of the foregoing, it must be held that numerous sites, in almost all the Italian regions, have not yet been brought into conformity with the provisions at issue and that, accordingly, the failure on the part of the Italian Republic to fulfil its obligations has continued up to the time of the Court’s examination of the facts in the present case. 94 In those circumstances, the Court considers that an order imposing a penalty payment on the Italian Republic is an appropriate financial means by which to induce the Italian Republic to take the measures necessary to bring to an end the failure to fulfil obligations established and to ensure full compliance with the judgment in Commission v Italy (EU:C:2007:250). 95 As regards the amount of that penalty payment and the form it should take, it is for the Court, in the exercise of its discretion, in accordance with settled case-law, 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 (see, to that effect, judgment in Commission v Luxembourg, C‑576/11, EU:C:2013:773, paragraph 46 and case-law cited). The Commission’s suggestions 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 suggestions to the Court (see, to that effect, judgment in Commission v Spain, EU:C:2012:781, paragraph 116 and case-law cited). 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. 96 The Court has held that such a penalty must be decided upon according to the degree of pressure needed in order to persuade the defaulting Member State to comply with a judgment establishing a failure to fulfil obligations and to alter its conduct in order to bring to an end the infringement complained of (judgment in Commission v Spain, EU:C:2012:781, paragraph 117 and case-law cited). 97 Accordingly, in the assessment carried out by the Court, the criteria which must be taken into account in order to ensure that penalty payments have coercive force and that EU law is applied uniformly and effectively are, in principle, the duration of the infringement, its degree of seriousness and the ability of the Member State concerned to pay. In applying those criteria, the Court is required to have regard, in particular, to the effects on public and private interests of the failure to comply and to the urgent need for the Member State concerned to be induced to fulfil its obligations (judgment in Commission v Spain, EU:C:2012:781, paragraph 119 and case-law cited). 98 As regards the seriousness of the infringement, it must be held that the obligation to dispose of waste without endangering human health and without harming the environment forms part of the very objectives of EU environmental policy, as is apparent from Article 191 TFEU. In particular, the failure to comply with the obligations arising under Article 4 of Directive 75/442 could, by the very nature of those obligations, endanger human health directly and harm the environment, and must therefore be regarded as particularly serious (see, to that effect, in particular, judgment in Commission v Greece, EU:C:2000:356, paragraph 94). 99 The failure to fulfil the obligation laid down in Article 2(1) of Directive 91/689 to require that, on every hazardous waste site, waste is recorded and identified must also be regarded as serious, inasmuch as compliance with that obligation is necessary in order for the objectives set out in Article 4 of Directive 75/442 to be fully achieved (see, by analogy, judgment in Commission v Greece, EU:C:2000:356, paragraph 95), particularly since — as the Commission observes — such waste by its nature entails a higher risk to human health and the environment. 100 Moreover, as the Commission points out, the fact that these proceedings concern a failure to comply with a judgment relating to a general and persistent practice has the effect of rendering the failure to fulfil obligations in question more serious. 101 Whilst it is true that, as it contends, the Italian Republic has made significant progress since the judgment in Commission v Italy (EU:C:2007:250) in reducing the number of sites that are not in conformity with the relevant provisions, the fact remains that, as the Commission submits, the progress made since the deferred deadline has been very slow and there are still a considerable number of illegal sites to be found in almost every Italian region. 102 As regards the duration of the infringement, this must be 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 (judgment in Commission v Spain, EU:C:2012:781, paragraph 120 and case-law cited). 103 In the present case, as is apparent from paragraphs 90 to 93 above, the Italian Republic has not been able to show that the failure to fulfil obligations established in the judgment in Commission v Italy (EU:C:2007:250) has in fact come to an end. That failure to fulfil obligations must therefore be held to have persisted for more than seven years, which is a considerable length of time. 104 As to the Italian Republic’s ability to pay, the Court has held that it is necessary to take account of recent trends in a Member State’s gross domestic product at the time of the Court’s examination of the facts (see, to that effect, judgment in Commission v Ireland, C‑279/11, EU:C:2012:834, paragraph 78). 105 For the purposes of determining the form of the penalty payment to be imposed pursuant to Article 260(2) TFEU, it is for the Court to take account of various factors relating both to the nature of the failure to fulfil obligations concerned and to the circumstances of the case before it. As stated in paragraph 95 above, the form of the penalty payment, like the amount of the financial penalties, falls within the Court’s discretion and the Court is in no way bound by the Commission’s suggestions on that point. 106 As regards the Commission’s proposal that a decreasing penalty payment should be imposed, it should be observed that, even if — in order to ensure full compliance with the Court’s judgment — the penalty payment must 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 (see, to that effect, judgments in Commission v Spain, C‑278/01, EU:C:2003:635, paragraphs 43 to 51; Commission v Italy, C‑496/09, EU:C:2011:740, paragraphs 47 to 55; and Commission v Belgium, C‑533/11, EU:C:2013:659, paragraphs 73 and 74). 107 In the circumstances of the present case and in the light, in particular, of the information provided to the Court by the Italian Republic and by the Commission, the Court considers it appropriate to order a decreasing penalty payment. It is therefore necessary to decide upon the method for calculating that penalty payment and the schedule for payment. 108 As regards the latter, it is appropriate that the decreasing penalty payment be established on a six-monthly basis, in accordance with the Commission’s proposal, in order to enable the Commission to assess the state of progress of the measures for compliance with the judgment in Commission v Italy (EU:C:2007:250) by reference to the situation prevailing at the end of the period in question (see, to that effect, judgment in Commission v Italy, EU:C:2011:740, paragraph 54). 109 Furthermore, it is appropriate to order, in accordance with the Commission’s proposal, a penalty payment to be paid in an amount which is progressively reduced in proportion to the number of sites brought into conformity with the judgment in Commission v Italy (EU:C:2007:250), sites containing hazardous waste being counted twice (see, by analogy, judgments in Commission v Spain, EU:C:2003:635, paragraph 50, and Commission v Italy, EU:C:2011:740, paragraph 52). 110 In the light of the foregoing, the Court considers it appropriate, in the exercise of its discretion, to order a six-monthly penalty payment in the amount of EUR 42 800 000, from which deductions will be made in proportion to the number of landfills brought into conformity with the judgment in Commission v Italy (EU:C:2007:250) by the end of the six-month period under consideration, sites containing hazardous waste being counted twice. 111 For the purposes of calculating the reduction in the penalty payment due at the end of each six-month period from the date of delivery of the present judgment, the Commission is required to take into account only evidence that has been submitted to it before the end of that period in relation to the adoption of measures necessary for compliance with the judgment in Commission v Italy (EU:C:2007:250). 112 In the light of all the foregoing considerations, the Italian Republic must be ordered to pay to the Commission, into the ‘European Union own resources’ account, from the day on which judgment is delivered in the present case until the judgment in Commission v Italy (EU:C:2007:250) is complied with, a six-monthly penalty payment to be calculated, as regards the first six-month period following delivery of the present judgment, at the end of that period, on the basis of an initial amount set at EUR 42 800 000, from which the sum of EUR 400 000 is to be deducted in respect of each of the sites containing hazardous waste that has by then been brought into conformity with the judgment in Commission v Italy (EU:C:2007:250) and the sum of EUR 200 000 is to be deducted in respect of every other site that has by then been brought into conformity with that judgment. The penalty payment due in respect of every six-month period thereafter is to be calculated, at the end of each such period, on the basis of an initial amount — being the amount of the penalty payment set for the preceding six-month period — from which the same deductions are to be made in respect of sites, covered by the finding of a failure to fulfil obligations, that have been brought into conformity during the six-month period under consideration. The lump sum payment 113 The first point to be noted is that, in exercising the discretion conferred on it in such matters, the Court is empowered to impose a penalty payment and a lump sum payment cumulatively (judgment in Commission v Spain, EU:C:2012:781, paragraph 140 and case-law cited). 114 The imposition of a lump sum payment and the fixing of that sum must depend in each individual case on all the relevant factors relating both to the characteristics of the failure to fulfil obligations established and to the conduct of the Member State involved in the procedure initiated under Article 260 TFEU. That provision confers a wide discretion on the Court in deciding whether to impose such a penalty and, if it decides to do so, in determining the amount (see judgment in Commission v Spain, EU:C:2014:316, paragraph 60 and case-law cited). 115 In the present proceedings, account must be taken of all the legal and factual circumstances leading to the failure to fulfil obligations established and, in particular, of the high number of sites that have not yet been brought into conformity with EU law. Furthermore, as the Advocate General observed in point 188 of her Opinion, in addition to the present case, which has arisen as a consequence of the failure to comply with the judgment in Commission v Italy (EU:C:2007:250), more than 20 cases concerning waste have been brought before the Court and have culminated in a finding that the Italian Republic had failed to fulfil its obligations under EU law. 116 The fact that a Member State thus repeatedly engages in unlawful conduct in a specific sector governed by EU rules is an indication that effective prevention of future repetition of similar infringements of EU law may require the adoption of a dissuasive measure, such as the imposition of a lump sum payment (see judgment in Commission v Spain, EU:C:2014:316, paragraph 78 and case-law cited). 117 In those circumstances, it is for the Court, in the exercise of its discretion, to fix the lump sum in an amount appropriate to the circumstances and proportionate to the infringement (see, to that effect, judgment in Commission v Greece, C‑369/07, EU:C:2009:428, paragraph 146). 118 Relevant considerations in this respect include factors such as the seriousness of the infringement and the length of time for which the infringement has persisted since the delivery of the judgment establishing it (see, to that effect, judgment in Commission v Italy, EU:C:2011:740, paragraph 94), and the relevant Member State’s ability to pay (see judgment in Commission v Spain, EU:C:2014:316, paragraph 80). 119 As regards those factors, the circumstances which must be taken into account are clear, inter alia, from the considerations set out in paragraphs 98 to 104 above. In that connection, it should, in particular, be borne in mind that the infringement in question is general and persistent; that the sites covered by the finding of infringement are located in almost every Italian region; and that some of those sites contain hazardous waste, which presents a high level of danger to human health and the environment. 120 In the light of the foregoing, the Court considers that proper account of the circumstances of the present case will be taken by setting the amount of the lump sum which the Italian Republic will have to pay at EUR 40 million. 121 The Italian Republic must therefore be ordered to pay to the Commission, into the ‘European Union own resources’ account, a lump sum of EUR 40 million. Costs 122 Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the Italian Republic’s failure to fulfil its obligations has been established, the latter must be ordered to pay the costs. On those grounds, the Court (Grand Chamber) hereby: 1. Declares that, by failing to adopt all the measures necessary to ensure compliance with the judgment in Commission v Italy (C‑135/05, EU:C:2007:250), the Italian Republic has failed to fulfil its obligations under Article 260(1) TFEU; 2. Orders the Italian Republic to pay the European Commission, into the ‘European Union own resources’ account, from the day on which the present judgment is delivered until the judgment in Commission v Italy (EU:C:2007:250) has been complied with, a six-monthly penalty payment to be calculated, as regards the first six-month period following delivery of the present judgment, at the end of that period, on the basis of an initial amount set at EUR 42 800 000, from which the sum of EUR 400 000 is to be deducted in respect of each of the sites containing hazardous waste that has by then been brought into conformity with the judgment in Commission v Italy (EU:C:2007:250) and the sum of EUR 200 000 is to be deducted in respect of every other site that has by then been brought into conformity with that judgment. The penalty payment due in respect of every six-month period thereafter is to be calculated, at the end of each such period, on the basis of an initial amount — being the amount of the penalty payment set for the preceding six-month period — from which the same deductions are to be made in respect of sites, covered by the finding of a failure to fulfil obligations, that have been brought into conformity during the six-month period under consideration; 3. Orders the Italian Republic to pay the European Commission, into the ‘European Union own resources’ account, a lump sum of EUR 40 million; 4. Orders the Italian Republic to pay the costs. [Signatures] * Language of the case: Italian.