Opinion of the Advocate General — ECLI:EU:C:2022:972
Date: 2022-12-08
Language of the case: English
Subject matter: Taxation
Procedure: Action for failure to fulfil obligations - successful
Origin: United Kingdom

summary in point 13 of the present Opinion). 47 This appears to have been the motivation for the 2012 measures. I am therefore unpersuaded that those measures had a material mitigating effect on public and private interests. 48 The Commission’s heads of claim do not refer to Article 185 of the Withdrawal Agreement (see point 8 of the present Opinion). The United Kingdom nevertheless defended the claim on the understanding that it included a period of non-compliance with the judgment in Case C‑503/17 after the end of the transition period. It, moreover, took no objection based on vires or on any discrepancy between the heads of claim and its substance. 49 Applying those adjectives to the population of the Member States, five have a population approximately the same as, or smaller than, Northern Ireland: Estonia, Cyprus, Latvia, Luxembourg and Malta. 50 On 1 January 2020, Ireland complied with the judgment of 17 October 2018, Commission v Ireland (C‑504/17, not published, EU:C:2018:832). 51 See the 2005 Communication, paragraph 16.4: ‘the degree of seriousness could be considered less if the infringement does not concern the whole of the Member State in question’. 52 OJ 2014 L 173, p. 349. 53 Judgment of 13 January 2021, Commission v Slovenia (MiFID II) (C‑628/18, EU:C:2021:1, paragraph 80). 54 Judgment of 13 May 2014, Commission v Spain(C‑184/11, EU:C:2014:316). 55 Judgment of 13 May 2014, Commission v Spain(C‑184/11, EU:C:2014:316, paragraph 81 and 82). 56 Judgment of 13 May 2014, Commission v Spain(C‑184/11, EU:C:2014:316, paragraph 43 and the case-law cited). 57 See (i) point 45, (ii) points 48 to 49 and (iii) points 52 to 55 of the present Opinion. 58 2020 Communication, section I, fourth paragraph. 59 The formula for the calculation of the special ‘n’ factor, based on the number of seats in the European Parliament, appears in footnote 12 of the 2019 Communication. 60 Section IV of Communication from the Commission ‑ Adjustment of the calculation for lump sum and penalty payments proposed by the Commission in infringement proceedings before the Court of Justice of the European Union, following the withdrawal of the United Kingdom (OJ 2021 C 129, p. 1). 61 See, inter alia, judgments of 7 September 2016, Commission v Greece (C‑584/14, EU:C:2016:636, paragraph 81); of 22 February 2018, Commission v Greece (C‑328/16, EU:C:2018:98, paragraph 101); and of 25 February 2021, Commission v Spain (Personal Data Directive – Criminal law) (C‑658/19, EU:C:2021:138, paragraph 83). 62 Protocol on Ireland/Northern Ireland, Article 12(1). 63 See points 59 to 63 of the present Opinion. 64 Judgment of 20 January 2022, Commission v Greece (Recovery of State aid – Ferronickel) (C‑51/20, EU:C:2022:36, paragraphs 114 to 117), and the detailed examination of the special ‘n’ factor in the Opinion of Advocate General Pitruzzella in Commission v Greece (Recovery of State aid – Ferronickel) (C‑51/20, EU:C:2021:534). See also judgment of 14 November 2018, Commission v Greece (C‑93/17, EU:C:2018:903, paragraphs 139 and 142). 65 It is not entirely clear from the Court’s judgments whether the GDP element that must be taken into account as the predominant factor is simply the GDP ratio or the square root of the GDP ratio. The latter approach is in keeping with the Commission’s communications and has the effect of smoothing the differences between lump sum payments that may be imposed on Member States. The simple GDP ratio for the United Kingdom is 4.9; using this instead of the square root of the GDP ratio (2.2) gives a total lump sum payment of EUR 39 million. 66 The 2020 GDP of the 27 Member States published by Eurostat was EUR 13 450 460 million.