Opinion of the Advocate General — ECLI:EU:C:2007:589
Date: 2007-10-09
Language of the case: Portuguese
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Provisions governing the Institutions;Approximation of laws
Procedure: Action for failure to fulfil obligations - successful
Origin: Portugal

Summary of the Judgment 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 – Financial penalties (Art. 228(2) EC) 2. 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 – Financial penalties – Periodic penalty payment (Art. 228(2) EC) 1. Under the procedure laid down in Article 228(2) EC, it is for the Court to assess in each case, in the light of the circumstances of the case, the financial penalties to be imposed. In that regard, the Commission’s suggestions cannot bind the Court and merely constitute a useful point of reference. Similarly, guidelines such as those contained in the communications of the Commission are not binding on the Court but contribute to ensuring that that institution’s actions are transparent, foreseeable and consistent with legal certainty. The order imposing a penalty payment and/or a lump sum is intended to place a defaulting Member State under economic pressure which induces it to put an end to the breach established. The financial penalties imposed must therefore be decided upon according to the degree of persuasion needed in order for the Member State in question to alter its conduct. (see paras 31, 34-35) 2. Where a penalty payment is to be imposed on a Member State to penalise a failure to implement a judgment establishing 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 appropriate to the circumstances and proportionate both to the breach that has been established and to the ability to pay of the Member State concerned. In that light, 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, its degree of seriousness 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 38-39)