Opinion of the Advocate General — ECLI:EU:C:2005:717
Date: 2005-11-24
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Consumer protection;Approximation of laws
Procedure: Action for failure to fulfil obligations - successful
Origin: France

Summary of the Judgment 1. Actions for failure to fulfil obligations – Subject-matter of the dispute – Specification during the pre-litigation procedure (Arts 226 EC and 228 EC) 2. Actions for failure to fulfil obligations – Judgment of the Court establishing such a failure – Breach of the obligation to comply with the judgment – Financial penalties (Art. 228(2) EC) 3. Actions for failure to fulfil obligations – Judgment of the Court establishing such a failure – Breach of the obligation to comply with the judgment – Financial penalties – Penalty payment (Art. 228(2) EC) 4. Actions for failure to fulfil obligations – Judgment of the Court establishing such a failure – Breach of the obligation to comply with the judgment – Financial penalties – Penalty payment (Art. 228(2) EC) 1. The requirement that the subject-matter of proceedings brought under Article 226 EC is circumscribed by the pre-litigation procedure provided for by that provision cannot go so far as to mean that in every case 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 but simply limited. 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. Nothing prevents that from also being the case where legislation is altered after the action has been brought and the complaint maintained by the Commission as regards the altered legislation was necessarily included in the complaint alleging a complete failure to comply with a judgment of the Court. It is therefore permissible for the Commission to limit the extent of the failure to fulfil obligations which it asks the Court to find under Article 228 EC, so as to take account of partial measures to comply with the judgment, adopted during the second proceedings before the Court. (see paras 35, 37-38) 2. The procedure laid down in Article 228(2) EC has the objective of inducing a defaulting Member State to comply with a judgment establishing a failure to fulfil obligations, and thereby of ensuring that Community law is in fact applied by that State. The measures provided for by that provision, namely a lump sum and a penalty payment, are both intended to achieve this objective. An order imposing a penalty payment and/or a lump sum is not intended to compensate for damage which may have been caused by the Member State concerned, but to place it under economic pressure which induces it to put an end to the infringement that has been established. The financial penalties imposed must therefore be decided on according to the degree of persuasion needed for the Member State in question to alter its conduct. (see paras 59-60) 3. Where a penalty payment is to be imposed on a Member State to penalise a failure to comply with a judgment establishing a failure to fulfil obligations, it is for the Court, in exercising its discretion, to set the penalty payment so that it is both appropriate to the circumstances and proportionate to the infringement that has been established and the ability to pay of the Member State concerned. For that purpose, the basic criteria which must be taken into account in order to ensure that penalty payments have coercive force and Community law is applied uniformly and effectively are, in principle, the duration of the infringement, the seriousness of the infringement, and the ability of the Member State to pay. In applying those criteria, regard should be had in particular to the effects of failure to comply on private and public interests and to the urgency of inducing the Member State concerned to fulfil its obligations. (see paras 61-62) 4. As regards the criterion of the duration of the infringement, the relevant coefficient must be determined by reference to the time when the Court assesses the facts, not the time at which the case is brought before it by the Commission, on the basis of a scale which is not limited by the scale of 1 to 3 proposed by the Commission. (see para. 71)