62007CC0121_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I – Introduction
1. The present proceedings were brought by the Commission pursuant to Article 228 EC. The Commission claims that the French Republic failed to comply with the judgment of the Court of 15 July 2004 in Case C‑419/03 Commission
v France . (2) The Commission initially requested that a penalty payment of EUR 366 744 for each day of delay in complying with the judgment in Case C‑419/03 from the date of judgment in the present proceedings until the judgment in Case C‑419/03 has been complied with in full be imposed on the French Republic. Moreover, the Commission requests that a lump sum payment be imposed on the French Republic.
2. In its judgment in Case C‑419/03, the Court declared that the French Republic, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to transpose into national law the provisions of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC (3) which differ from or go beyond those of Council Directive 90/220/EEC of 23 April 1990 on the deliberate release into the environment of genetically modified organisms, (4) has failed to fulfil its obligations under Directive 2001/18.
3. Directive 2001/18 seeks to approximate the laws, regulations and administrative provisions of the Member States and to protect human health and the environment, when genetically modified organisms (‘GMOs’) are deliberately released into the environment for any purposes other than placing on the market within the Community and when GMOs are placed on the market as or in products within the Community. (5)
II – Legal framework
A – Directive 2001/18
4. Article 8 of Directive 2001/18, entitled ‘Handling of modifications and new information’, provides:
‘1. In the event of any modification of, or unintended change to, the deliberate release of a GMO or of a combination of GMOs which could have consequences with regard to risks for human health and the environment after the competent authority has given its written consent, or if new information has become available on such risks, either while the notification is being examined by the competent authority of a Member State or after that authority has given its written consent, the notifier shall immediately:
(a) take the measures necessary to protect human health and the environment;
(b) inform the competent authority in advance of any modification or as soon as the unintended change is known or the new information is available;
(c) revise the measures specified in the notification.
2. If information becomes available to the competent authority referred to in paragraph 1 which could have significant consequences with regard to risks for human health and the environment or under the circumstances described in paragraph 1, the competent authority shall evaluate such information and make it available to the public. It may require the notifier to modify the conditions of, suspend or terminate the deliberate release and shall inform the public thereof.’
5. Article 19 of Directive 2001/18, entitled ‘Consent’, provides:
‘1. Without prejudice to requirements under other Community legislation, only if a written consent has been given for the placing on the market of a GMO as or in a product may that product be used without further notification throughout the Community ...
2. The notifier may proceed with the placing on the market only when he has received the written consent of the competent authority in accordance with Articles 15, 17 and 18, and in conformity with any conditions required in that consent. …’
6. Article 23(1) of Directive 2001/18, entitled ‘Safeguard clause’, provides:
‘Where a Member State, as a result of new or additional information made available since the date of the consent and affecting the environmental risk assessment or reassessment of existing information on the basis of new or additional scientific knowledge, has detailed grounds for considering that a GMO as or in a product which has been properly notified and has received written consent under this Directive constitutes a risk to human health or the environment, that Member State may provisionally restrict or prohibit the use and/or sale of that GMO as or in a product on its territory.
The Member State shall ensure that in the event of a severe risk, emergency measures, such as suspension or termination of the placing on the market, shall be applied, including information to the public.
The Member State shall immediately inform the Commission and the other Member States of actions taken under this Article and give reasons for its decision, supplying its review of the environmental risk assessment, indicating whether and how the conditions of the consent should be amended or the consent should be terminated, and, where appropriate, the new or additional information on which its decision is based.’
7. Article 34 of Directive 2001/18 provides:
‘1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 17 October 2002 ...’
8. Article 36 of Directive 2001/18 provides:
‘1. Directive 90/220/EEC shall be repealed on 17 October 2002.
2. References made to the repealed Directive shall be construed as being made to this Directive and should be read in accordance with the correlation table in Annex VIII.’
B – National legislation
9. Article L533‑6 of the French Environmental Code (‘the Code’) provides:
‘The authorisations granted by the other Member States of the European Union under enactments used by these States or other States party to the agreement on European Economic Space in accordance with Directive No 90/220/EEC of 23 April 1990 are considered as representing authorisation under this Chapter.
However, when there are valid reasons to consider that a product authorised by another Member State or another party State presents risks to public health or the environment, the administrative authority may temporarily limit or prohibit the use or placing on the market of this product.’
10. Article L535‑2 of the Code, which is contained in Chapter V of Title III of the Code, provides:
‘I. – In every case where a new evaluation of the risks caused by the presence of genetically modified organisms to public health or the environment so justifies, the administrative authority may, at the cost of the authorisation holder or the holders of the genetically modified organisms:
1 Suspend the authorisation pending further information and, if needs be, order the withdrawal from sale of the products or prohibit their use;
2 Impose modifications to the conditions of deliberate release;
3 Withdraw the authorisation;
4 Order the destruction of the genetically modified organisms and, in the event of a failure by the beneficiary or of the holder of the authorisation, proceed to this destruction ex officio.
II. – Except in emergency cases, these measures may only be implemented if the beneficiary has been given the opportunity to present his or her observations.’
11. Article L537‑1 of the Code which is found in Title III thereof provides:
‘The measures for the application of Chapters III, V and VI of this Title are set by a Conseil d’État decree.’
12. Article 16 of Decree No 2007‑358 of 19 March 2007 concerning the deliberate release for any other purpose than that of placing on the market of products composed in whole or in part of genetically modified organisms provides:
‘If the competent administrative authority has information on new elements which could have significant consequences with regard to risks for human health and the environment, that authority shall conduct a new evaluation of the risks and make those elements available to the public.
In accordance with Article L535‑2 of the [Code], the competent administrative authority may require the person responsible for the deliberate release to modify the conditions of, suspend or terminate the deliberate release and to inform the public thereof.’
13. Article 16 of Decree No 2007‑359 of 19 March 2007 concerning the authorisation procedure for the placing on the market of products which are not intended for consumption composed in whole or in part of genetically modified organisms provides:
‘The competent administrative authority shall adopt the measures provided in paragraph I of Article L535‑2 of the [Code] on a provisional basis. In the case of severe risk, those measures shall be adopted as a matter of urgency and the public shall be appropriately informed.
The competent administrative authority shall inform the Commission of the European Communities and the Member States of the measures adopted and give the reasons for its decision, supplying its review of the environmental risks, indicating whether the conditions of the consent should be amended or the consent should be terminated, and, where appropriate, the new or additional information on which its decision is based.’
III – Background to the dispute
A – The judgment in Case C‑419/03
14. Point 1 of the operative part of the judgment in Case C‑419/03 provides that ‘[b]y failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to transpose into national law the provisions of Directive 2001/18/EC … which differ from or go beyond those of Council Directive 90/220/EEC …, the French Republic has failed to fulfil its obligations under Directive 2001/18.’
B – Pre-litigation procedure
15. On 5 November 2004, the Commission requested the French authorities to inform it of the measures adopted by the French Republic in order to comply with the judgment in Case C‑419/03. On 4 February 2005, the French authorities informed the Commission that a parliamentary fact-finding mission on GMOs had been set up and that the French Republic intended to transpose Directive 2001/18 at the end of that fact-finding mission. On 21 February 2005, the French authorities forwarded Decree No 2005‑51 of 26 January 2005 to the Commission. The French authorities considered that the decree in question contributed to the transposition of Directive 2001/18.
16. On 13 July 2005, the Commission sent a formal letter of notice pursuant to Article 228 EC to the French Republic in which it informed that Member State that the measures adopted were insufficient in order to comply with the judgment in Case C‑419/03. The Commission pointed out that financial penalties could be imposed for failure to comply with a judgment of the Court and set a time-limit of two months for the French Republic to take all the measures necessary in order to comply with the judgment in Case C‑419/03. Dissatisfied with the response provided on 22 September 2005 by the French Republic, the Commission sent the French Republic a reasoned opinion on 19 December 2005 in which it stated that, having failed to take the measures necessary to comply with the judgment in Case C‑419/03, that Member State had failed to fulfil its obligations under Article 228(1) EC. The Commission requested the French Republic to comply with that reasoned opinion within a time-limit of two months from receipt thereof.
17. On 20 February 2006, the French authorities forwarded to the Commission the text of a draft law aimed at transposing Directive 2001/18 (‘draft law 2006’), which was expected to be adopted at the end of the second trimester of 2006. On 8 May 2006, the French authorities informed the Commission that draft law 2006 had been adopted by the Senate on 23 March 2006 and was sent to the National Assembly (Assemblée nationale) on 24 March 2006. Taking the view that the French Republic still had not complied with the judgment in Case C‑419/03, the Commission brought the present action on 28 February 2007.
IV – Procedure before the Court and developments in the course of the present proceedings
18. In its application the Commission claims that the Court should:
‘– declare that, by failing to take all the measures necessary to comply with the judgment of the Court … in Case C‑419/03 concerning the failure to transpose into national law the provisions of Directive 2001/18/EC … which diverge from or exceed the provisions of Council Directive 90/220/EEC …, the French Republic has failed to fulfil its obligations under Article 228(1) [EC];
– order the French Republic to pay into the Commission’s “European Community own resources” account a periodic penalty payment of EUR 366 744 for each day of delay in complying with [the] judgment in Case C‑419/03 from the date of judgment herein until the judgment in Case C‑419/03 has been complied with in full;
– order the French Republic to pay into the Commission’s “European Community own resources” account a lump sum of EUR 46 660 for [each] day of delay in complying with the judgment in Case C‑419/03 from the date of the judgment in Case C‑419/03 until either:
the judgment in Case C‑419/03 has been fully complied with (if that is the case before the judgment is delivered in this case), or
the judgment has been delivered in this case (if the judgment delivered in Case C‑419/03 has not been fully complied with at that time);
– order the French Republic to pay the costs.’
19. The French Government claims that the Court should:
‘declare that the French Republic has terminated the infringement found in the judgment of 15 July 2004, and consequently reject the requests of the C ommission that the French Republic be ordered to pay a penalty payment and a lump sum and order the Commission to pay the costs. If however the Court considers that the French Republic should be ordered to pay a lump sum, that Member State requests the Court to take into account the circumstances of the present case which should lead the Court to fix a much lower amount than that fixed by the Commission’.
20. By order of the President of the Court of 27 September 2007, the Czech Republic was given leave to intervene in support of the form of order sought by the French Republic. The Czech Republic did not present any written or oral pleadings in the present proceedings.
21. On 20 March 2007, the French authorities informed the Commission by letter that three decrees and three orders had been published in the Official Journal of the French Republic on that day in order to transpose Directive 2001/18. The decrees and orders in question were annexed to the defence of the French Republic in the present proceedings.
22. In its defence and at the oral hearing, the French Government admits that at the time the application was lodged in the present proceedings it had not adopted the necessary measures in order to comply with the judgment in Case C‑419/03.
23. In its reply, the Commission considers that despite the transposition of many provisions of Directive 2001/18 by the decrees and orders referred to at point 21 above, Articles 8(2), 17(1), 17(2), 17(9), 19 and 23 of that directive remain to be transposed. Thus the Commission in its reply claims that the Court should:
– reduce the amount of the daily penalty proposed by it at point 18 above according to the extent to which the judgment Commission
v France
has been complied with,
– modify, according to the extent to which the judgment in question has been complied with, the amount of the lump sum payment referred to at point 18 above but only in relation to the period which has elapsed since 21 March 2007 (6) until either:
– the judgment in Case C‑419/03 Commission
v France
has been fully complied with (if that occurs prior to the delivery of the judgment in the present proceedings);
– the judgment in the present proceedings is delivered (if the judgment in Case C‑419/03 Commission
v France
has not been fully complied with at that time).
24. At the hearing on 12 March 2008, at which the Commission and the French Government presented oral submissions, the Commission considered that Article 17(1), (2) and (9) of Directive 2001/18 had been correctly transposed by the French Republic.
V – Failure to fulfil obligations
25. According to settled case-law, the reference date for assessing whether there has been a failure to fulfil obligations under Article 228 EC is the date of expiry of the period prescribed in the reasoned opinion issued under that provision. (7) In the present case, it is common ground that, on the date of expiry of the period laid down in the reasoned opinion addressed to it on 19 December 2005, the French Republic had not yet adopted the necessary measures in order to comply with the judgment of the Court in Case C‑419/03.
26. In the light of the above, I consider that, by failing to adopt the measures necessary to ensure compliance with the judgment in Case C‑419/03, the French Republic has failed to fulfil its obligations under Article 228(1) EC.
VI – Financial penalties
A – Preliminary considerations
27. Since the Commission seeks, inter alia, the imposition of a penalty payment on the French Republic, it must be ascertained whether the failure to fulfil obligations continued up to the Court’s examination of the facts. (8) It is therefore necessary to examine whether the French Republic has persisted in its failure to transpose Articles 8(2), 19 and 23 of Directive 2001/18.
B – Extent of failure to comply with the judgment in Case C‑419/03
1. Arguments of the parties
28. The Commission claims that the French authorities, during the pre-litigation procedure to the present proceedings, stated that certain provisions of Directive 2001/18 required transposition by legislation rather than by regulatory instrument. The Commission also claims that Articles L531‑1 to L537‑1 of the Code establishes the legal regime applicable to GMOs and is thus contained in the legislative section of the Code. The Commission considers that the French Government failed to indicate in its Defence why it was subsequently possible to transpose Directive 2001/18 by regulatory instrument rather than by legislation and claims that the French Government must justify this change in approach.
29. The Commission claims that the French authorities failed to correctly transpose Article 8(2) of Directive 2001/18. The Commission claims that Article L535‑2 of the Code, which has not been amended and which takes effect independently of any measures of application, including, in particular, Article 16 of Decree No 2007‑358, confers on the administrative authorities much broader powers of intervention than the powers provided by Article 8(2) of Directive 2001/18. While Article L535‑2 of the Code confers on the administrative authorities the power to adopt the measures provided by Article 8(2) of Directive 2001/18, those measures may be adopted firstly, without informing the public thereof and secondly, on the basis of a simple re-evaluation of the risks rather than on the basis of information which could have significant consequences with regard to risks for human health and the environment, as provided by Article 8(2) of Directive 2001/18.
30. The Commission claims that the French authorities have failed to fully and correctly transpose Article 19 of Directive 2001/18 which establishes the conditions pursuant to which GMOs may be used throughout the Community. According to the Commission, Article L533‑6 of the Code specifically refers to authorisations granted by the other Member States in accordance with Directive 90/220 and thus fails to take account of authorisations granted by other Member States pursuant to Directive 2001/18.
31. The Commission considers that the French authorities have failed to correctly transpose the safeguard clause contained in Article 23 of Directive 2001/18 which enables a Member State, under certain conditions, to provisionally restrict or prohibit the use and/or sale of GMOs on its territory. The Commission stresses the fact that in order to invoke the safeguard clause contained in Article 23 of Directive 2001/18, new or additional information must be available since the date of the consent or there must be new or additional scientific knowledge which requires a reassessment of existing information. The Commission claims that the corresponding provisions under French law are much broader in scope than Article 23 of Directive 2001/18. Thus Article L533‑6 of the Code, which concerns authorisations granted by other Member States, permits the limitation or prohibition of the use or placing on the market of products for ‘valid reasons’. Article L535‑2 of the Code which concerns authorisations granted by the competent French authorities, allows the competent authorities, in ‘every case where a new evaluation of the risks caused by the presence of genetically modified organisms to public health or the environment so justifies’, to suspend an authorisation, to impose modifications to the conditions of deliberate release, to withdraw an authorisation or, inter alia, order the destruction of GMOs. Moreover, Article 16 of Decree No 2007‑359 permits a re-evaluation of risks to the environment where there is no new or additional information and where there is no new or additional scientific knowledge.
32. The French Government claims that in accordance with Article 34(1) of Directive 2001/18 and Article 249 EC, the choice of whether to transpose a directive by the adoption of legislation or regulatory instrument is a matter for the internal legal system of each Member State. According to the French Government, the Conseil constitutionnel considered that a law which contains provisions of a regulatory nature is not unconstitutional. Moreover, Decree No 2007‑358 and Decree No 2007‑359 were adopted following and in conformity with an opinion of the Conseil d’État.
33. The French Government considers that Article 8(2) of Directive 2001/18 was correctly transposed by Article 16 of Decree No 2007‑358 which establishes, in accordance with Article L537‑1 of the Code, the conditions pursuant to which the provisions of Article L535‑2 of the Code shall be applied. Article 16 of Decree No 2007‑358 provides, in conformity with the conditions laid down in Article 8(2) of Directive 2001/18, that where the competent administrative authority has information on new elements which could have significant consequences with regard to risks for human health and the environment, that authority shall conduct a new evaluation of the risks and make those elements available to the public. In such circumstances, the authority in question may, in accordance with Article L535‑2 of the Code, modify the conditions of release or suspend or withdraw authorisation for such release and inform the public thereof.
34. The French Government claims that Article 19 of Directive 2001/18 has been correctly transposed. Despite the fact that Article L533‑6 of the Code refers to the recognition of authorisations granted by other Members States pursuant to Directive 90/220, that article of the Code should be interpreted as referring also to Directive 2001/18, given that Article 36 of Directive 2001/18 provides that references made to Directive 90/220, which has been repealed, shall be construed as being made to Directive 2001/18. Moreover, pursuant to French case-law, where a regulatory act refers to a law which has been repealed and replaced by a law having the same object, the national judge must substitute the reference to the first law by a reference to the second law. In addition, in accordance with the case-law of the Conseil d’État, administrative authorities are required to interpret national legislation in conformity with Community directives. The French Government also claims that a number of authorisations granted by other Member States pursuant to Directive 2001/18 were recognised in France.
35. The French Government also considers that Article 23 of Directive 2001/18 has been correctly transposed. The French Government claims that, contrary to the Commission’s claims, there are not two safeguard clauses under French law. It claims that Article L533‑6 of the Code merely grants the competent authority the power to suspend an authorisation granted by another Member State, while Article L535‑2 of the Code lays down the conditions in accordance with which such a suspension may be imposed in respect of authorisations granted by the French authorities pursuant to Article L533‑5 of the Code or granted by other Member States. Moreover, the French Government considers that the Commission is incorrect in considering that Article L535‑2 of the Code is overly broad in scope. While Article L535‑2 does not require that a re-evaluation should take place on foot of new or additional information or on foot of new or additional scientific knowledge, the French Government considers that in the absence of such information the result of the re-evaluation cannot be any different from the initial evaluation pursuant to which an authorisation was granted. As regards Article 16 of Decree No 2007‑359, the French Government considers that that provision incorporates the obligation imposed by Article 23 of Directive 2001/18 to inform the Commission and the Member States of the measures adopted and give the reasons for its decision, supplying its re-evaluation of the environmental risks, indicating whether the conditions of the consent should be amended or whether the consent should be terminated, and, where appropriate, the new or additional information on which its decision is based.
2. Assessment
36. It is settled case-law that a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under Community law. (9) I thus consider that the arguments raised by the French Government throughout its written and oral pleadings concerning internal problems encountered when enacting legislation on GMOs cannot be accepted in order to justify a failure to comply with Community law and, in particular, to correctly transpose Directive 2001/18 and comply with the judgment of the Court in Case C‑419/03.
37. In its pleadings, the Commission claims that the French Government must indicate why it considers that the adoption of regulatory instruments is an adequate means of transposing Directive 2001/18 given that the French Government previously considered that that directive should be transposed by both legislation and regulatory instrument.
38. According to settled case-law, the provisions of a directive must be implemented with unquestionable binding force and with the requisite specificity, precision and clarity. (10) The provisions intended to transpose a directive must thus create a legal situation that is sufficiently clear, precise and transparent that individuals can ascertain the full extent of their rights and obligations and, where appropriate, rely on those rights before the national courts. (11)
39. In addition, according to settled case-law, it is for the Commission to provide the Court, in the course of Article 228 EC 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. (12) Moreover, 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 its consequences. (13)
40. In my view, the general remarks made by the Commission concerning the choice of legal instrument used by the French authorities in order to transpose Directive 2001/18 are not sufficient in themselves to establish that that transposition was inadequate in accordance with the case-law as outlined in point 38 above and that the French Republic has thus failed to comply with the judgment of the Court in Case C‑419/03. Moreover, I do not consider that the Commission has adduced sufficient evidence during the course of the present proceedings, other than the alleged change in approach of the French Government concerning the choice of legal instrument for transposing Directive 2001/18, such as to require that government to justify in detail why the adoption of regulatory instruments rather than legislation is sufficient in order to transpose Directive 2001/18. It is therefore necessary in my view to examine the claims raised by the Commission concerning the inadequate transposition under French law of specific provisions of Directive 2001/18.
41. As regards the alleged failure by the French authorities to adequately transpose Article 8(2) of Directive 2001/18, I consider that the Commission has demonstrated that Article L535‑2 of the Code, which is undoubtedly broader in scope than Article 8(2) of Directive 2001/18, is not clearly limited by the more restrictive terms of Article 16 of Decree No 2007‑358.
42. While Article L537‑1 of the Code provides that measures for the application of, inter alia, the chapter of the Code containing Article L535‑2 are adopted by decree and Article 16 of Decree No 2007‑358 in fact reproduces much of the terms of Article 8(2) of Directive 2001/18 and indeed makes specific reference to Article L535‑2 of the Code, I am not persuaded, upon reading the provisions in question and in the light of the arguments of the parties, that Article L535‑2 of the Code is necessarily circumscribed by Article 16 of Decree No 2007‑358 and that Article L535‑2 of the Code cannot thus be applied in full and independently of the terms of Article 16 of Decree No 2007‑358. I therefore do not consider, despite the restrictive terms of Article 16 of Decree No 2007‑358, that Article 8(2) of Directive 2001/18 has been implemented in a sufficiently clear, certain and binding manner.
43. I also consider that the French Republic has failed to correctly transpose Article 19 of Directive 2001/18 as French law does not specifically recognise authorisations granted by other Member States pursuant to Directive 2001/18. The absence of a specific provision recognising such authorisations in my view introduces a degree of legal uncertainty with regard to such recognition. The fact that Article L533‑6 of the Code refers to the recognition of authorisations granted pursuant to Directive 90/220 and that Article 36 of Directive 2001/18 provides that references made to Directive 90/220 shall be construed as being made to Directive 2001/18 is not sufficient to remedy the absence of a specific provision under French law concerning the recognition of authorisations granted pursuant to Directive 2001/18. Moreover, in my view the French Government has not demonstrated that pursuant to French case-law, a reference in national legislative or a regulatory text to a directive, which has subsequently been repealed and replaced by another directive of the same object, will be substituted by a reference to the latter directive. In addition, the fact that, in accordance with French case-law, administrative authorities are required to interpret national legislation in conformity with Community directives, (14) and that authorisations granted by other Member States pursuant to Directive 2001/18 have in fact been recognised in France, is not sufficient to eliminate the legal uncertainty concerning the recognition of the authorisations in question in the absence of a specific national provision thereon.
44. As regards Article 23 of Directive 2001/18, I consider that the French Republic has failed to correctly transpose the first indent of Article 23(1). (15) Pursuant to the first indent of Article 23(1) of Directive 2001/18, a Member State may only adopt safeguard measures in respect of a GMO as or in a product which has been properly notified and had received written consent under Directive 2001/18, where the Member State has detailed grounds for considering, on the basis of new or additional information available since that consent was granted or new or additional scientific knowledge, that the GMO as or in a product constitutes a risk to human health or the environment. However, I consider, as argued by the Commission, that it is clear from reading Article L535‑2 of the Code that safeguard measures may be adopted pursuant to that provision under much less stringent conditions by national administrative authorities, namely, where a new evaluation of the risks caused by the presence of GMOs to public health or the environment so justifies. I am therefore not persuaded by the claim of the French Government that such a new evaluation may in fact only take place on foot of new or additional information or on foot of new or additional scientific knowledge.
45. I therefore consider that, on the date of the hearing in the present proceedings, the French Republic had failed to correctly transpose Article 8(2), Article 19 and the first indent of Article 23(1) of Directive 2001/18 and thus to fully comply with the judgment of the Court in Case C‑419/03.
C – Periodic penalty
1.
Arguments of the parties
46. On the basis of the method of calculation set out in the Commission’s Communication implementing Article 228 of the EC Treaty (SEC(2005)1658, the ‘2005 Communication’), the Commission in its application proposes that the Court impose a penalty payment on the French Republic of EUR 366 744 per day of delay in complying with the judgment in Case C‑419/03, from the day on which the Court delivers judgment in the present case until the day on which the judgment in Case C‑419/03 has been complied with. The amount of that penalty payment is calculated by multiplying a uniform base of EUR 600 by a coefficient of 10 (on a scale of 1 to 20) for the seriousness of the infringement, a coefficient of 2.8 (on a scale of 1 to 3), which corresponds to the 28 months which elapsed between the handing down of the judgment in Case C‑419/03 and 12 December 2006, the date the Commission adopted its decision to propose a penalty payment and a coefficient of 21.83 calculated on the basis of the French Republic’s gross domestic product and the weighting of the votes which that Member State has in the Council of the European Union, which reflects that Member State’s ability to pay.
47. The Commission considers that Directive 2001/18 is an essential element of the community legal framework on the release and placing on the market of GMOs. Directive 2001/18 seeks to ensure the safe and controlled development of biotechnologies in the Community, to guarantee the free movement of GMOs authorised in accordance with that directive and to protect human health and the environment. These objectives are prejudiced by the French Republic’s failure to transpose parts of that directive. The Commission considers that the failure affects private and public interests and extends beyond national borders. The Commission thus considers that the failure to transpose parts of Directive 2001/18 leads to profound legal uncertainty in the field of GMOs and compromises the interests of the producers of GMOs and biotechnical research on GMOs. That uncertainty may also hinder the Community in international relations.
48. The French Government considers that Directive 2001/18 has been fully transposed by the adoption of the measures referred to at point 21 above and that there is no need to impose a penalty payment.
2. Assessment
49. Where the Court finds that the French Republic has not complied with its judgment in Case C‑419/03, the Court may, pursuant to the third subparagraph of Article 228(2) EC and in the light of its judgment in Case C‑304/02 Commission
v France
impose on that Member State a lump sum and/or penalty payment. 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. (16) In that regard, the Commission’s suggestions on financial penalties do not bind the Court but merely constitute a useful point of reference. Moreover, the 2005 Communication, which also does not bind the Court, contributes to ensuring that the action brought by that institution is transparent, foreseeable and consistent with legal certainty. (17)
50. The penalty payment should be fixed 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 addition, 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 seriousness of the infringement, its duration 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. (18)
51. As regards the seriousness of the infringement in the present proceedings, the Commission in its application initially suggested a coefficient of 10 (on a scale of 1 to 20) on the basis that it considered that the French Republic had failed to fully transpose a large number of provisions of Directive 2001/18. (19) It should be noted, however, that at the date of the hearing in these proceedings, the Commission maintained its action solely in relation to three provisions of Directive 2001/18. The initial suggestion of the Commission in relation to the seriousness of the infringement in these proceedings is thus, in my view, of limited relevance and utility.
52. When assessing the seriousness of an infringement concerning failure to transpose a directive, I consider that the Court, in addition to examining the general importance of the directive in question within the Community legal sphere, should pay particular attention to the content and relative importance of the specific provisions of that directive which the Member State has failed to transpose.
53. Pursuant to the fourth recital in the preamble to Directive 2001/18, living organisms released into the environment for experimental purposes or as commercial products may reproduce in the environment and cross national borders. Moreover, the effect of such releases on the environment may be irreversible. Directive 2001/18 thus seeks to approximate the laws of the Member States concerning the deliberate release into the environment of GMOs and to ensure the safe development of industrial products utilising GMOs by setting up a comprehensive and transparent legislative framework. (20) In addition, Directive 2001/18 seeks to protect human health and the environment and to respect the requirements of the Cartagena Protocol on Biosafety to the Convention on Biological Diversity. (21)
54. In its reply, the Commission claimed that Article 19 of Directive 2001/18, concerning the Community dimension of a consent for the placing on the market of a GMO as or in a product granted pursuant to that directive, and Article 23 of Directive 2001/18, which establishes a safeguard clause, are the ‘pillars’ of that directive. In my view, this assertion is borne out, inter alia, by the terms of Articles 19 and 23 of Directive 2001/18 and the 56th recital in the preamble to that directive. Article 19 of Directive 2001/18 provides for the mutual recognition throughout the Community of GMOs, as or in a product, authorised pursuant to that directive and Article 23 entitled the ‘safeguard clause’ regulates and harmonises in a very precise manner the conditions pursuant to which a Member State may provisionally restrict or prohibit the use and/or sale of such GMOs as or in a product on its territory. The failure of the French Republic to correctly transpose Article 19 and the first indent of Article 23(1) of Directive 2001/18 introduces, in my view, considerable legal uncertainty in that Member State concerning fundamental aspects of the rules on the placing on the market and the limitation of GMOs authorised pursuant to that directive, thereby compromising their free movement. The legal uncertainty introduced by the French Republic’s failure to transpose these key provisions of Directive 2001/18 is particularly detrimental in my view given the undoubted scientific uncertainty which surrounds GMOs. I consider the fact, as claimed by the French Republic, that that Member State may be, inter alia, one of the leading Community producers of GMOs or may have recognised authorisations granted by other Member States pursuant to Directive 2001/18 does not remedy or dispel the legal uncertainty created by the French Republic’s failure to fully transpose Directive 2001/18.
55. I therefore consider that a coefficient of 6 (on a scale of 1 to 20) reflects the seriousness of the French Republic’s failure to transpose Article 8(2), Article 19 and the first indent of Article 23(1) of Directive 2001/18.
56. As regards the coefficient concerning the duration of the infringement, the Commission’s suggestion that it be set at 2.8 (on a scale of 1 to 3) based on a delay of 28 months should not in my view be followed by the Court. It is apparent from the documents before the Court that the coefficient proposed by the Commission was calculated on the basis of the time which elapsed between the date of delivery of the judgment in Case C‑419/03 and 12 December 2006, the date when the Commission adopted its decision to propose a penalty payment. However, it should be recalled that, in accordance with the case-law of the Court, the duration of an infringement must be assessed by reference to the date of delivery of the initial case finding infringement on the basis of Article 226 EC and the time when the Court assesses the facts in the subsequent Article 228 EC proceedings. (22)
57. Moreover, it is clear that the Commission based its proposal of a coefficient of 2.8 on paragraph 17 of the 2005 Communication which provides that ‘[t]he duration of the infringement increases the basic lump sum by a multiplier of between 1 and 3, calculated at a rate of 0.10 per month from the date the Article 226 [EC] judgment was delivered’. I consider that the provision in question of the 2005 Communication is incoherent and thus unworkable as it seems to set a cap or a ceiling of 3 on the duration coefficient despite the fact an infringement may persist for more than 30 months. I would also note that the Court indicated in Case C‑177/04 Commission
v France
that it was not bound by the scale of 1 to 3 proposed by the Commission in that case. (23)
58. In the present case, almost four years elapsed since the judgment in Case C‑419/03 was handed down on 15 July 2004 and the hearing on 12 March 2008 in the present proceedings. (24) I therefore consider that, in the light of the previous practice of the Court, a coefficient of 3 is more appropriate to take account of the duration of the infringement in the present proceedings. I would note in that regard that a coefficient of 3 for duration was adopted for an identical delay of almost four years for failure to transpose correctly Community legislation in Case C‑177/04 Commission
v France . (25) Furthermore, in Case C‑278/01 Commission
v Spain, the Court acknowledged that technical considerations that make it difficult to comply with the previous Article 226 EC judgment of the Court within a short period may be taken into consideration when fixing the coefficient for duration of an infringement. (26) In my view, the internal problems encountered by the French Republic when transposing Directive 2001/18 were of a political rather than a technical nature and thus should not be taken into account when fixing the duration coefficient.
59. As regards the Commission’s suggestion of multiplying a basic amount by a coefficient based on the gross domestic product of the Member State concerned and on the number of votes which it has in the Council, that suggestion is an appropriate way, in principle, of reflecting that Member State’s ability to pay, while keeping the variation between Member States within a reasonable range. (27) I also consider that it is appropriate, in the present proceedings, to multiply the coefficients for duration, seriousness and the Member State’s ability to pay by the basic amount of EUR 600 as suggested by the Commission. (28)
60. In the light of all the above, the multiplication of the basic amount of EUR 600 by coefficients, set at 6 for the seriousness of the infringement, by 3 for the duration of that infringement, and at 21.83 for the ability to pay of the French Republic amounts, in the present case, to a total of EUR 235 764 for each day of delay. In a case such as the present case concerning compliance with a judgment of the Court which involves the adoption of a legislative amendment, a penalty imposed on a daily basis should in my view be chosen. (29)
D – Lump sum
1. Arguments of the parties
61. The Commission proposes that the Court should impose a lump sum payment on the French Republic in the present proceedings. In the event that a Member State fails to comply with a judgment of the Court pursuant to Article 226 EC, the Commission intends to systematically propose to the Court that a lump sum payment be imposed in Article 228 EC proceedings. (30) The Commission also intends to propose the imposition of a lump sum payment despite the fact that the previous Article 226 EC judgment has been complied with during the course of the Article 228 EC proceedings before the Court.
62. The Commission considers that, in accordance with the judgment of the Court in Case C‑304/02 Commission
v France, financial penalties seek not only to induce a Member State to comply with an Article 226 EC judgment, but also have a preventive or dissuasive purpose. The purpose of a lump sum payment is to penalise the past behaviour of a Member State which fails to comply with an Article 226 EC judgment, in order to dissuade Member States from acting in a similar manner in the future. The lump sum should thus be payable irrespective of whether the Member State complies with the Article 226 EC judgment during the course of the Article 228 EC proceedings or immediately following the judgment in those proceedings.
63. The Commission considers that its previous practice of proposing only the imposition of penalty payments pursuant to Article 228 EC ensured that late compliance with the previous Article 226 EC judgment which occurred prior to the handing down of the ruling in subsequent Article 228 EC proceedings was not penalised and was thus not effectively discouraged. The Commission considers that every prolonged failure to comply with a ruling of the Court seriously undermines the principle of legality and legal certainty in a Community based on the rule of law. The Commission claims that the weight of Article 226 EC judgments is seriously undermined by the delaying tactics adopted quite systematically by certain Member States. As regards the French Republic, the Commission, in response to a written question put to it by the Court, indicated that between December 1996 and October 2005, 50 (out of a total of 296 – 16.89%) formal letters of notice and 25 reasoned opinions (out of a total of 125 – 20%) were addressed to the French Republic pursuant to Article 228 EC. During the same period, the Commission lodged proceedings pursuant to Article 228 EC before the Court against the French Republic six times (out of a total of 21 – 28.57%). The Commission thus considers that the imposition of a lump sum payment is necessary in order to dissuade such delaying tactics and to prevent recidivism on the part of Member States.
64. The Commission, on the basis of its 2005 Communication considers that the lump sum payment should be calculated in the present proceedings by multiplying the uniform base of EUR 200 by the coefficients 10 (for seriousness) and 21.83 (for ability to pay) which gives an amount of EUR 43 660 per day of delay in complying with the judgment in Case C‑419/03 from the date of that judgment until either the judgment in Case C‑419/03 has been fully complied with or judgment has been delivered in the present proce edings. The Commission also claims that the French Republic failed to cooperate during the pre-litigation proceedings in the present case and notes that the French Republic did not even respect its own calendar for transposition of Directive 2001/18 which that Member State drew up after the issuing of the reasoned opinion in this case. The Commission also highlights the prolonged failure of the French Republic to transpose Directive 2001/18 which should have been completed by 17 October 2002. Indeed four years after that date, with the exception of Decree No 2005‑51, which is only of marginal relevance, no measures were adopted by the French Republic in order to comply with the judgment of the Court in Case C‑419/03. The Commission claims that considerable legal insecurity ensued in this sensitive field due to the French Republic’s non-compliance. It also stresses the importance of Directive 2001/18 which seeks to protect human health and the environment and to promote the development of biotechnologies and the free movement of GMOs. In addition, the Commission claims that the French Republic has failed on a number of previous occasions to fully transpose Community legislation on GMOs. In that regard, the Commission claims that in Cases C‑296/01 (31) and C‑429/01, (32) the Court found that the French Republic had failed to transpose certain provisions of Directive 90/220 and Council Directive 90/219/EEC (33) respectively. Moreover, the Commission subsequently brought an action pursuant to Article 228 EC against the French Republic for its failure to comply with the judgment in Case C‑429/01. The action in question, which was registered as Case C‑79/06, was later withdrawn by the Commission when the French Republic complied with the judgment of the Court in Case C‑429/01. (34)
65. In its reply, the Commission considers that in order to take into account the partial compliance on 21 March 2007 with the judgment of the Court in Case C‑419/03, (35) the Court should reduce the amount of the lump sum payment suggested by the Commission from that date until either the judgment in Case C‑419/03 has been fully complied with (36) or the judgment in the present proceedings is delivered. (37)
66. The French Republic considers that given that it has complied with the judgment of the Court in Case C‑419/03, the Commission’s request that a lump sum payment be imposed in the present proceedings is devoid of purpose. While the Commission indicated in its 2005 Communication that it intended in Article 228 EC proceedings firstly, to systematically request the imposition of a lump sum payment and secondly, not to withdraw such proceedings even where a Member State terminates the infringement before judgment is delivered, the French Republic considers that this approach is contrary to Article 228 EC and the case-law of the Court thereon. The French Republic considers that in accordance with the judgment in Case C‑304/02 Commission
v France, the purpose of the procedure laid down in Article 228(2) EC is to induce the defaulting Member State to comply with the Article 226 EC judgment as soon as possible and thus ensure the effective application of Community law. The sanctions provided for by Article 228 EC are not aimed at preventing other similar infringements.
67. The French Republic considers that in any event the conditions for the imposition of that lump sum are not met in the present case. The French Republic claims that the circumstances in Case C‑304/02 Commission
v France, the only case to date in which a lump sum penalty was imposed by the Court, cannot be compared to those in the present case as the infringement in Case C‑304/02 persisted for 11 years and threatened the Community fishing stocks. In that regard, the French Republic underlines that less than three years elapsed between the judgment in Case C‑419/03 and the lodging of the application in the present proceedings, a delay which is similar to or inferior to the delay in Case C‑387/97 Commission
v Greece, Case C‑278/01 Commission
v Spain, Case C‑177/04 Commission
v France
and Case C‑119/04 Commission
v Italy, in which the Court did not impose a lump sum payment. As regards the seriousness of the infringement, the French Republic claims that it was not found in Case C‑419/03 to have failed to transpose Directive 2001/18 in its entirety but only those provisions which go beyond those of Directive 90/220. Moreover, the French Republic terminated the infringement in question in March 2007, one month after the lodging of the proceedings in the present case.
68. The French Republic claims in the alternative that the amount of the lump sum payment suggested by the Commission is excessive. The coefficient of 10 suggested by the Commission for seriousness is excessive given that the infringement in the present case had very limited consequences. In that regard, the French Republic claims that most requests for authorisation in Europe concern genetically modified food. However, genetically modified food for human consumption is not covered by Directive 2001/18 and that directive only dealt with genetically modified food for animal consumption until 18 April 2004. In addition, the French Republic claims that despite its failure to transpose certain provisions of Directive 2001/18, the French authorities set up an authorisation procedure which in reality complied with that directive by adopting two guides in 2005 on genetically modified plants which set out the investigation procedure followed by the Ministry of Agriculture, the requirements of a request for authorisation and public consultation. The French Republic also considers that the Commission cannot rely on the circumstances of Case C‑79/06. The Commission withdrew its application in that case as the French Republic had complied with the previous judgment of the Court in Case C‑429/01.
2. Assessment
69. The arguments raised by the parties in the present case concerning the imposition of a lump sum payment by the Court pursuant to Article 228 EC do not question the possibility for the Court to impose both a penalty payment and a lump sum in Article 228 EC proceedings, that possibility having been specifically acknowledged and indeed exercised by the Court in Case C‑304/02 Commission
v France . (38)
70. In Case C‑304/02 Commission
v France, the Court considered that the sanctions provided by Article 228 EC have a common objective of inducing a defaulting Member State to comply with a judgment establishing a breach of obligations, thereby ensuring that Community law is in fact observed. Moreover, it is for the Court to determine, according to the degree of persuasion and deterrence required, the financial penalties appropriate for making sure that the judgment in the previous Article 226 EC proceedings is complied with as rapidly as possible and preventing similar infringements of Community law from recurring. (39)
71. Article 228 EC sanctions thus, in my view, act not only as a means to enforce Article 226 EC judgments but also as general preventative measures. (40)
72. Notwithstanding the common objective of the sanctions provided by Article 228 EC, the Court in Case C‑304/02 Commission
v France, also stated that the penalty payment and the lump sum each have their own separate function. (41) Thus, the Court considered that the imposition of a penalty payment is particularly suited to inducing a Member State to put an end as soon as possible to a breach of obligations which, in the absence of such a measure, would tend to persist. The imposition of a lump sum, however, is based more on an assessment of the effects on public and private interests of the failure of the Member State concerned to comply with its obligations, in particular where the breach has persisted for a long period since the judgment which initially established it. (42)
73. Moreover, despite the common objective of the sanctions provided by Article 228 EC, the Court has imposed a lump sum sanction in only one case, Case C‑304/02 Commission
v France, since it handed down its first judgment pursuant to Article 228 EC on 4 July 2000 in Commission
v Greece . (43) In my view, it is clear from the practice of the Court of almost eight years standing that the imposition of both a penalty payment and a lump sum in a particular Article 228 EC infringement case may not be necessary in order to achieve the objective of ensuring compliance with Community law.
74. I therefore consider that the systematic approach to the imposition of a lump sum sanction advocated by the Commission, not only in its pleadings in the present proceedings but also in the 2005 Communication, may be disproportionate in the light of the circumstances prevailing in a particular case and should thus be rejected. The Court should thus follow its established practice of imposing the sanctions provided by Article 228 EC in a measured and selective manner, where necessary, in order to effectively combat infringements of Community law.
75. In that regard and in the light of the case-law, I consider that the Court by imposing a penalty payment in a specific case seeks to discourage a Member State’s continued, and thus future, failure to comply with a given Article 226 EC judgment from the date of the judgment in Article 228 EC proceedings. (44)
76. When imposing a lump sum sanction the Court seeks, in my view, to punish a Member State for its past behaviour in failing to comply with a particular Article 226 EC judgment where that behaviour is characterised by additional aggravating circumstances which exacerbate the Member State’s failure to promptly and fully comply with that judgment. In my view, the lump sum sanction is therefore warranted only in cases where such additional aggravating circumstances are convincingly established. While such additional aggravating circumstances cannot be exhaustively listed in advance, they should in my view include a Member State’s failure to cooperate with the Commission in a bona fide manner in order to bring the infringement to an end in a timely manner. In addition, a lump sum sanction may be warranted where public and private interests are affected to an unacceptable extent by a Member State’s infringement. (45) Moreover, where an infringement impinges on a matter of compelling Community interest or compromises a fundamental Community principle, such additional aggravating circumstances may more readily be found by the Court and a lump sum sanction accordingly imposed.
77. I consider that the Court should in principle confine its analysis of the appropriateness of imposing a lump sum sanction to the specific circumstances prevailing in the case at hand. In my view, the Court when considering whether to impose a lump sum on a Member State should only take into consideration other infringements by a Member State where the Commission establishes, through the production of cogent evidence, that there is a structural or systemic failure on the part of the Member State in question to comply with Article 226 EC judgments. In that regard, I consider that the mere production by the Commission of statistical data on a Member State’s failure to comply with Article 226 EC judgments will not in itself suffice.
78. Given that the lump sum sanction is aimed, in my view, at punishing a Member State for its failure to comply with an Article 226 EC judgment which is characterised by additional aggravating circumstances, I consider that the amount of the sanction should be set in order to reflect those specific circumstances. I consider therefore that the methodology for the calculation of the lump sum sanction proposed by the Commission in the present proceedings and indeed the 2005 Communication, (46) which is based, inter alia, on the same coefficient for seriousness as the penalty payment and the number of days which an infringement persists, does not reflect such specific circumstances.
79. As regards the appropriateness of imposing a lump sum sanction in the present proceedings, I would note as a preliminary matter that, in the light of the reasoning outlined in points 36 to 45 above, I consider that the French Republic failed at the time of the hearing in the present case to fully comply with the judgment of the Court in Case C‑419/03. In my view, the arguments of the parties in these proceedings as to whether compliance by the French Republic with the judgment in Case C‑419/03 during the course of the current proceedings may deprive the imposition of a lump sum payment of purpose are therefore not pertinent.
80. In any event, as the lump sum sanction is a once-off sanction directed at punishing behaviour (47) by a Member State which in my view largely predates the initiation of Article 228 EC proceedings, the fact that the Member State complies with the Article 226 EC judgment before the Court’s examination of the facts in the Article 228 EC proceedings is irrelevant. The Court may in such circumstances impose a lump sum sanction where the Commission establishes that the Member State failed to comply with the Article 226 EC judgment within the time period established by the reasoned opinion in Article 228 EC proceedings provided, as pointed out at points 76 to 78 above, additional aggravating circumstances warranting that sanction are established.
81. I consider that in the present case the Commission has not established the existence of any additional aggravating circumstances which would warrant the imposition of a lump sum sanction.
82. As regards the Commission’s allegation that the French Republic failed to cooperate with it or engaged in ‘delay tactics’ during the pre-litigation proceedings to the present case, I consider that the Commission has failed to produce any clear evidence of such behaviour. It is evident that the French Republic failed to comply with the judgment of the Court in Case C‑419/03 within a reasonable period of time, a fact which must be deplored. (48) However, in the light of the correspondence between the parties reproduced at points 15 to 17 above, I consider that the French Republic replied to the Commission’s requests for information during the pre-litigation proceedings to the present case in a tolerable manner and demonstrated that it was taking concrete, albeit tardy and ultimately inadequate, steps to comply with the judgment of the Court in Case C‑419/03.
83. As regards the question of whether the French Republic’s failure to fully transpose Directive 2001/18 affected public and private interests to such an extent as to warrant the imposition of a lump sum, I consider that the Commission has established that that failure created an environment of legal uncertainty in a domain already afflicted by considerable scientific uncertainty. (49) With however the exception of its allegation in relation to the proceedings before the administrative court of Clermont-Ferrand, (50) I do not consider that the Commission has produced sufficient evidence that the French Republic’s failure to fully transpose Directive 2001/18 and comply with Case C‑419/03 affected to such an unacceptable extent public and private interests so as to warrant the imposition of a lump sum. The French Republic claimed in the present proceedings, without being contradicted by the Commission, that its failure to fully transpose Directive 2001/18 did not hinder biotechnological research on GMOs. In addition the French Republic argued that it registered more requests for authorisation of experimental release of GMOs pursuant to part B of that directive in 2003, 2005 and 2006 than any other Member State except Spain and between 2004 and 2006 France was the second producer for commercial purposes of GMOs in Europe. Moreover, the French Republic claimed, again without being contradicted, that, contrary to the Commission allegations, that Member State’s failure to transpose Directive 2001/18 did not hinder the Community’s international relations in the field of GMOs as the incomplete transposition of that directive was never raised in international negotiations.
84. In addition, in the absence of any evidence other than the statistical data reproduced at point 63 above and the proceedings brought by the Commission against the French Republic for failure to fully t ranspose legislation on GMOs as referred to at point 64 above, I consider that the Commission has not established in the present case such non-observance on the part of the French Republic of its obligations pursuant to Article 228(1) EC which should be punished by the imposition of a lump sum sanction or that the imposition of that sanction is necessary for preventative purposes.
85. I therefore consider that the French Republic should not be ordered to pay a lump sum.
VII – Costs
86. Under Article 69(2) of the Rules of Procedure, 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 French Republic has been unsuccessful, I consider that the latter should be ordered to pay the costs. In accordance with Article 69(4) of the Rules of Procedure, the Czech Republic must bear its own costs.
VIII – Conclusion
87. In view of the foregoing considerations, I propose that the Court should:
– declare that, by failing to take all the measures necessary to comply with the judgment of the Court of 15 July 2004 in Case C‑419/03 Commission
v France
concerning the failure to transpose Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC which differ from or go beyond those of Council Directive 90/220/EEC of 23 April 1990 on the deliberate release into the environment of genetically modified organisms, the French Republic has failed to fulfil its obligations under Article 228(1) EC;
– order the French Republic to pay to the Commission of the European Communities, into the account ‘European Community own resources’, a penalty payment of EUR 235 764 for each day of delay in implementing the measures necessary to fully comply with the judgment in Case C‑419/03 Commission
v France, from the day on which the Court of Justice delivers judgment in the present case until the day on which the judgment in Case C‑419/03 Commission
v France
is complied with;
– order the French Republic to pay the costs;
– order the Czech Republic to bear its own costs.
(1) .
(2)  –	Not published in the ECR (OJ 2004 C 228, p. 15).
(3)  –	OJ 2001 L 106, p. 1.
(4)  –	OJ 1990 L 117, p. 15.
(5)  –	See Article 1 of Directive 2001/18.
(6)  –	The Commission considers that the three decrees and the three orders referred to in point 21 above entered into force on 21 March 2007.
(7)  –	See Case C‑304/02 Commission
v France
[2005] ECR I‑6263, paragraph 30; Case C‑119/04 Commission
v Italy
[2006] ECR I‑6885, paragraph 27; Case C‑503/04 Commission
v Germany [2007] ECR I‑6153, paragraph 19; and Case C‑70/06 Commission v Portugal
[2008] ECR I‑0000, paragraph 18.
(8)  –	See, to that effect, Case C‑304/02 Commission
v France, cited in footnote 7, paragraph 31.
(9)  –	Case C‑212/99 Commission
v Italy
[2001] ECR I‑4923, paragraph 34, and Case C‑195/02 Commission
v Spain
[2004] ECR I‑7857, paragraph 82.
(10)  –	See to that effect, inter alia, Case C‑354/99 Commission
v Ireland
[2001] ECR I‑7657, paragraph 27.
(11)  –	See, inter alia, Case C‑131/88 Commission
v Germany
[1991] ECR I‑825, paragraph 6.
(12)  –	Case C‑387/97 Commission
v Greece
[2000] ECR I‑5047, paragraph 73.
(13)  –	Case C‑304/02 Commission
v France, cited in footnote 7, paragraph 56.
(14)  –	It should be noted that this assertion has by no means been established by the French Government in the present proceedings. Indeed, in its written and oral pleadings the Commission, without being contradicted by the Fren ch Government, highlighted a judgment of the administrative court of Clermont-Ferrand of 4 May 2006, in which that court rather than interpreting national law in conformity with Directive 2001/18 annulled certain authorisations granted pursuant to French law as the national provisions on which the authorisations were granted were contrary to the terms of Directive 2001/18. The Court was informed that the judgment is currently under appeal. Moreover, the French Government stressed in its pleadings that the ruling in question was an isolated incident.
(15)  –	I consider that Article 16 of Decree No 2007‑359 transposes into French law the terms of the second and third indent of Article 23(1) of Directive 2001/18.
(16)  –	Case C‑304/02 Commission
v France, cited in footnote 7, paragraph 86; Case C‑177/04 Commission
v France
[2006] ECR I‑2461, paragraph 58; and Commission
v Portugal, cited in footnote 7, paragraph 31.
(17)  –	See to that effect, Commission
v Portugal, cited in footnote 7, paragraph 34.
(18)  –	See Commission
v Portugal, cited in footnote 7, paragraphs 38 and 39.
(19)  –	Articles 3(1), 6(2), 6(4), 7, 8(2), 9, 13(2), 13(6), 14(1), 15(2), 16, 17, 18, 19, 20, 23, 26, 35 and Annexes II, III, IV, V, VI and VII.
(20)  –	In which the public is consulted concerning the deliberate release into the environment of GMOs. See Article 2 and the 7th and 10th recitals in the preamble to Directive 2001/18.
(21)  –	See the 5th and 13th recitals in the preamble to Directive 2001/18.
(22)  –	See Case C‑177/04 Commission
v France, cited in footnote 16, paragraph 71.
(23)  –	See paragraph 71 in which the Court stated that its ‘discretion is moreover not limited by the scale of 1 to 3 proposed by the Commission’ (case cited in footnote 16).
(24)  –	Moreover, despite the partial compliance of the French Republic with the judgment in Case C‑419/03, which itself took place following considerable delay and only after the application was lodged in the present proceedings, almost three years elapsed since the judgment in Case C‑419/03 was handed down on 15 July 2004 and the legal instruments referred to at point 21 above were published on 20 March 2007.
(25)  –	See paragraphs 73 and 74 (case cited in footnote 16).
(26)  –	See Case C‑278/01 Commission
v Spain
[2003] ECR I‑14141, paragraphs 53 and 54.
(27)  –	See Case C‑278/01 Commission
v Spain, cited in footnote 26, paragraph 59, and Commission
v Portugal, cited in footnote 7, paragraph 48.
(28)  –	See Commission
v Portugal, cited in footnote 7, paragraph 50, in which the Court approved the use of the basic amount of EUR 600 as set by the 2005 Communication.
(29)  –	See, to that effect, Case C‑177/04 Commission
v France, cited in footnote 16, paragraph 77, and Commission
v Portugal, cited in footnote 7, paragraph 52.
(30)  –	See also explanation at paragraph 10 of the 2005 Communication.
(31)  –	Commission
v France
[2003] ECR I‑13909.
(32)  –	Commission
v France
[2003] ECR I‑14355.
(33)  –	Directive 90/219 of 23 April 1990 on the contained use of genetically modified micro-organisms (OJ 1990 L 117, p. 1), as amended by Commission Directive 94/51/EC of 7 November 1994 adapting to technical progress Council Directive 90/219/EEC (OJ 1994 L 297, p. 29).
(34)  –	See order of the President of the Third Chamber of the Court of 7 February 2007, not published in the ECR (OJ 2007 C 82, p. 27).
(35)  –	Due to the adoption of the measures referred to at point 21 above which the Commission considers came into force on 21 March 2007.
(36)  –	If that occurs prior to the delivery of the judgment in the present proceedings.
(37)  –	If the judgment in Case C‑419/03 has not been fully complied with at that time.
(38)  –	See paragraph 82 where the Court stated that recourse to both types of sanctions provided by Article 228(2) EC is not precluded.
(39)  –	See, to that effect, paragraphs 80, 91 and 97. The Court made it abundantly clear that the sanctions provided by Article 228 EC are not intended to compensate for damage caused by a Member State. See paragraph 91.
(40)  –	It is clear from the judgment of the Court in Case C‑304/02 Commission
v France
(cited in footnote 7), that while the sanctions provided by Article 228 EC have a single overall guiding objective which is to ensure that Community law is observed to the fullest extent, those sanctions seek to achieve that objective in a twofold manner. By exerting sufficient economic pressure on a particular Member State in a given case, Article 228 EC sanctions seek to curb a specific failure by that Member State to comply with an Article 226 EC judgment thereby discouraging or inhibiting on a more general level such infringements by Member States in future.
(41)  –	See, to that effect, paragraph 84.
(42)  –	See, to that effect, paragraph 81.
(43)  –	Indeed the Court in Commission
v Greece
(cited in footnote 12), Case C‑278/01 Commission
v Spain
(cited in footnote 26), Case C‑177/04 Commission
v France
(cited in footnote 16) and Commission
v Portugal
(cited in footnote 7) did not impose a lump sum sanction on the defaulting Member States in question despite the fact that those Member States had failed at the time of the Court’s examination of the facts in the Article 228 EC proceedings to comply with the previous Article 226 EC judgments. This consistent practice on the part of the Court underscores in my view the autonomous nature of the sanctions provided by Article 228(2) EC. In my view, the imposition of a lump sum sanction on a Member State is thus not dependent on the imposition of a penalty payment thereon.
(44)  –	Thereby discouraging, in a general manner, all Member States from failing to comply with their obligations under the EC Treaty. It is the prospect of Article 228 EC proceedings and the possibility of, inter alia, a penalty payment being imposed that inhibits the breach of obligations by Member States.
(45)  –	In that regard, I consider that the Court in Case C‑304/02 Commission
v France
(cited in footnote 7), imposed a lump sum sanction on the French Republic as the infringement in that case had persisted for an extensive period of time and public and private interests in fishing stocks were considerably affected during that period. Moreover, the failure of the French Republic to cooperate with the Commission in bringing the infringement to an end is evident from the facts in the case.
(46)  –	See paragraphs 17 to 24 of the 2005 Communication (cited in point 46 above). It is worth noting that the 2005 Communication also provides for a minimum lump sum which in the case of the French Republic is EUR 10 915 000.
(47)  –	Where a failure to comply with an Article 226 EC judgment is characterised by additional aggravating circumstances.
(48)  –	Moreover, it should not be overlooked that it is wasteful of the Community resources for the Commission to be obliged to initiate proceedings pursuant to Article 228 EC and indeed Article 226 EC.
(49)  –	See point 54 above.
(50)  –	See footnote 14 above.