Provisional text
OPINION OF ADVOCATE GENERAL
MEDINA
delivered on 16 April 2026 (1)
Case C‑879/24
European Commission
v
Kingdom of Denmark
( Failure of a Member State to fulfil obligations – Establishment of a common framework on the recognition of minimum professional qualifications for inland navigation – Directive (EU) 2017/2397 and Directive (EU) 2021/1233 – Article 39(3) and (4) – Obligation to bring into force measures to ensure compliance with those directives – No transposition and/or no notification of transposing measures – Article 260(3)
TFEU – Application for the imposition of a lump sum and a daily penalty payment )
I.      Introduction
1.        By its application, the European Commission asks the Court to
declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with (i) Article 39(3) of Directive (EU) 2017/2397 of the European Parliament and of the Council of 12 December 2017 on the recognition of professional qualifications in inland navigation and repealing Council Directives 91/672/EEC and 96/50/EC (2) and (ii)
Article 2(1) of Directive (EU) 2021/1233 of the European Parliament and of the Council of 14 July 2021 amending Directive (EU) 2017/2397 as regards the transitional measures for the recognition of third-country certificates, (3) or, in any event, by failing to notify such provisions to the Commission, the Kingdom of Denmark has failed to fulfil its obligations under those provisions.
2.        Furthermore, the Commission asks the Court to order the Kingdom of Denmark to pay a lump sum and a daily penalty payment from the date of delivery of the judgment.
3.        The present action for failure to fulfil obligations presents two main aspects. The first concerns the interpretation of the criterion that
inland waterway navigation is not technically possible on a Member State territory, under Article 39(4) of Directive 2017/2397, on the basis of which a Member State is entirely exempted from the obligation to transpose.
4.        The second aspect is procedural and concerns the interpretation of Article 260(3) TFEU. That provision, introduced by the Treaty of Lisbon, provides for a mechanism allowing the Commission to ask the
Court to impose
a financial penalty on a Member State, as from the first finding under Article 258 TFEU that the Member State concerned has failed to fulfil its obligation to notify the measures transposing a directive adopted under a legislative procedure.
5.        The present case gives the Court the possibility to examine the applicability of the procedure laid down in Article 260(3) TFEU in a situation in which the EU legislature has adopted a targeted approach for transposition and the Member State concerned relies on a specific provision of the directive concerned
which exempts Member States from transposition when certain criteria are met.
For the reasons that I will explain in my Opinion, I take the view that Article 260(3) TFEU is not applicable where the very existence of an obligation to transpose requires the Court’s interpretation.
II.    Legal context
A.      Directive 2017/2397
6.        Article 2(3) of Directive 2017/2397, headed ‘Scope’, reads as follows:
‘Without prejudice to Article 39(3), this Directive also does not apply to persons navigating in Member States with no inland waterways linked to the navigable network of another Member State and who are exclusively:
(a)      navigating limited journeys of local interest, where the distance from the departure point is at no time more than ten kilometres; or
(b)      navigating seasonally.’
7.        Article 39 of Directive 2017/2397, headed ‘Transposition’, provides:
‘1.      Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 17 January 2022. They shall immediately inform the Commission thereof.
…
3.      By way of derogation from paragraph 1 of this Article, a Member State in which all persons are exempted pursuant to Article 2(3) shall only be obliged to bring into force those measures which are necessary to ensure compliance with Article 10 as regards recognition of certificates of qualification and the service record book, with Article 38 as regards recognition of valid certificates, as well as with Article 15. Such Member State shall bring those measures into force by 17 January 2022.
Such Member State may not issue Union certificates of qualification or approve training programmes or simulators until it has transposed and implemented the remaining provisions of this Directive and has informed the Commission that it has done so.
4.      By way of derogation from paragraph 1 of this Article, a Member State shall not be obliged to transpose this Directive as long as inland waterway navigation is not technically possible on its territory.
Such Member State may not issue Union certificates of qualification or approve training programmes or simulators until it has transposed and implemented the provisions of this Directive and informed the Commission that it has done so.’
B.      Directive 2021/1233
8.        Directive 2021/1233 modified Directive 2017/2397 as regards the transitional measures for the recognition of third-country certificates. Article 1 of Directive 2021/1233 amended in particular Article 10(3) of Directive 2017/2397 and added a seventh paragraph to Article 38 of the latter directive.
9.        Article 2(1) of Directive 2021/1233 provides:
‘1.      Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 17 January 2022. They shall immediately inform the Commission thereof.
When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
The derogation laid down in Article 39(4) of Directive [2017/2397] shall apply to this Directive, mutatis mutandis.’
III. The pre-litigation procedure and the proceedings before the Court
10.      On 24 March 2022, the Commission sent a letter of formal notice to the Kingdom of Denmark alleging that it had failed to communicate to it the measures adopted to transpose the provisions enumerated under Article 39(3) of Directive 2017/2397 and Article 2(1) of Directive 2021/1233, upon the expiry of the deadline for transposition of those provisions, namely 17 January 2022.
11.      In its response of 25 May 2022, the Kingdom of Denmark stated that it was not required to transpose those two directives into its national law. In that regard, it relied on Article 39(4) of Directive 2017/2397 which, in its view, exempted it from transposing those two directives.
12.      Considering the Kingdom of Denmark’s response unsatisfactory, the Commission held several meetings with the Danish authorities. However, those meetings did not result in the communication of any transposition measures to the Commission.
13.      On 28 September 2023, the Commission sent the Kingdom of Denmark
reasoned opinions indicating that
the necessary measures for full transposition of Directive 2017/2397 and Directive 2021/1233 had not been adopted and invited the Kingdom of Denmark to comply with its obligations under those directives within a period of two months from the notification of those reasoned opinions.
14.      The Kingdom of Denmark responded to the Commission’s reasoned opinions on 28 November 2023. In its response, the Kingdom of Denmark largely reiterated its response to the letter of formal notice, insisting that it was exempt from the obligation to transpose Directive 2017/2397 under Article 39(4) thereof, and that it was therefore also not required to transpose Directive 2021/1233. It again argued that there were no inland waterways in Denmark.
15.      Having taken the view that the Kingdom of Denmark had not transposed Directive 2017/2397 in the limited manner set out in Article 39(3) thereof, had not transposed Directive 2021/1233, and had not notified the relevant national transposing measures, the Commission brought the present action.
IV.    Assessment
16.      According to Article 1, Directive 2017/2397 lays down the conditions and procedures for the certification of the qualifications of persons involved in the operation of a craft navigating on EU inland waterways, as well as for the recognition of such qualifications in the Member States. By introducing the Union certificates of qualification and the certification of professional qualifications, that directive, as follows from
recital 5 thereof, aims to facilitate mobility, to ensure the safety of navigation and to ensure the protection of human life and the environment. (4)
17.      According to recital 10, Directive 2017/2397 recognises, however, certain exceptions to full transposition with regard to Member States in which national inland waterways are not linked to a navigable inland waterway of another Member State and in order to reduce costs. According to recital 15 of that directive,
exceptions are recognised for those Member States in which inland navigation is an infrequent activity, serving only local or seasonal interests in waterways with no connections to other Member States.
While in those Member States, the principle of recognition of professional certifications under that directive has to be respected, the administrative burden should be proportional. That recital states that it is, therefore, justified to allow the Member States concerned to transpose only the minimum provisions needed for the recognition of professional certificates.
18.      It follows, moreover, from recital 16 of that directive, that for certain Member States for which inland navigation is not technically possible, a requirement to transpose that directive would be a disproportionate administrative burden on them.
19.      All those considerations are reflected in the targeted approach for transposition (5) laid down in Article 39 of Directive 2017/2397. In short, that article categorises Member States into three transposition groups: those Member States obliged to
transpose the directive completely
(Article 39(1)), those Member States obliged to transpose it to a limited and minimum
extent (Article 39(2) and (3)), and those Member States that are under
no obligation to transpose it (Article 39(4)). The derogations to complete transposition are based, essentially, on the lack of inland waterways linked to the navigable network of another Member State (Article 39(2) and (3)) and
the technical impossibility
of inland waterway navigation (Article 39(4)).
20.      More particularly, Article 39(3) of Directive 2017/2397 provides for a very limited (or minimum) obligation to transpose only three provisions, namely Articles 10, 38 and 15. That derogation to complete transposition applies to those Member States in which all persons are exempted pursuant to Article 2(3) thereof. The exemption covers persons navigating in Member States with no inland waterways linked to the navigable network of another Member State and who are exclusively navigating short distance journeys of local interest (where the distance from the point of departure never exceeds 10 kilometres) or navigating seasonally.
21.      Article 39(4) of Directive 2017/2397 sets out a complete derogation from transposition and it applies to a Member State as long as inland waterway navigation is not technically possible on its territory.
22.      Directive 2021/1233 amended Directive 2017/2397 as regards the transitional measures for the recognition of third-country certificates.
The amendment concerns, more particularly,
Article 10(3) and Article 38
of Directive 2017/2397 (both provisions being the object of the
minimum transposition obligation, in accordance with Article 39(3) of Directive 2017/2397). Article 2(1) of Directive 2021/1233 provides that the derogation laid down in Article 39(4) of Directive 2017/2397
is to apply to Directive 2021/1233
mutatis mutandis.
23.      Following those explanations, I will examine first the question whether the Kingdom of Denmark failed to fulfil its obligations on the basis of Article 258 TFEU and next the applicability of Article 260(3) TFEU in the present circumstances.
A.      The infringement based on Article 258 TFEU
1.      Arguments of the parties
24.      The Commission notes that the Kingdom of Denmark is one of the Member States required to transpose Directive 2017/2397 to a limited extent, on the basis of Article 39(3) thereof. The Kingdom of Denmark is also required to transpose Directive 2021/1233 in accordance with Article 39(3) of Directive 2017/2397. In this case, the Kingdom of Denmark has failed to communicate any transposition measures in respect of those two directives.
25.      According to the Commission, contrary to
the Kingdom of Denmark’s assertion, only the Republic of
Cyprus and the Republic of Malta, whose territory have no inland waterways on which navigation is possible, are exempt from the obligation to transpose under Article 39(4) of Directive 2017/2397. While Danish inland waterways are not connected to the navigable network of another Member State, inland waterway transport is possible in Denmark and is in fact undertaken, for example in the port of Aalborg, on the Gudenå (the River
Guden), on the Odense River and the port of Copenhagen. The port of Aalborg is self-described as an ‘inland port’ while the port of Odense is described as a ‘canal port’.
On the
River
Guden, the main operator runs seasonal cruises. In the port of Copenhagen, an operator proposes boat excursions on the canals.
26.      The Commission submits that, given that the conditions laid down in Article 2(3) of Directive 2017/2397 are met for certain Danish ports, canals and waterways, that Member State is therefore required to transpose the two directives to a limited extent, in accordance with Article 39(3) of Directive 2017/2397.
27.      That institution adds that the Kingdom of Denmark’s reference to other documents or legal acts which mention the absence of inland waterways on Danish territory, such as
the 1996 map of trans-European networks (TEN‑T) (6) or Directive (EU) 2016/1629, (7) is not relevant. The TEN‑T map merely indicates that Danish ports do not form part of the trans-European networks. Directive 2016/1629 has a different scope from that of Directive 2017/2397. Whereas Directive 2016/1629 concerns the technical requirements for inland waterway vessels, Directive 2017/2397
concerns professional qualifications in the field of inland navigation.
28.      In any event, the Commission recalls that according to settled case-law, the absence in a given Member State of a certain activity covered by a directive cannot release that State from its obligation to take measures to ensure the proper transposition of all the provisions of that directive. (8)
29.      In its defence, the Kingdom of Denmark states, at the outset, that the dispute concerns the determination of the scope of Directives 2017/2397 and 2021/1233. The Kingdom of Denmark and the Commission have a fundamental disagreement on whether inland navigation is ‘technically possible’ in Denmark, within the meaning of Article 39(4) of Directive 2017/2397. The question is therefore not whether the Kingdom of Denmark took timely measures to transpose those two directives and notified those measures to the Commission, but rather whether it is required to transpose those two directives into its domestic law. That clarification is essential in view of the requests made by the Commission under Article 260(3) TFEU, the conditions for the application of which are not met.
30.      That Member State points out, first, that it is for the Commission to prove that inland waterway navigation is technically possible on its territory, which it has not done.
31.      Second, the Kingdom of Denmark contends that the legislative history of Directive 2017/2397 indicates that Denmark, Cyprus and Malta were expressly excluded from its scope until almost three weeks before the final agreement between the European Parliament and the Council, which confirms
the Kingdom of Denmark’s position.
32.      Third, the Kingdom of Denmark submits that the scope of Directives 2017/2397 and 2021/1233 should be understood in conjunction with the scope of Directive 2016/1629. The list of EU inland waterways laid down in Annex I
to the latter directive makes no reference to Danish inland waterways. Moreover, Article 40
of Directive 2016/1629 excludes
Denmark from its scope.
33.      Fourth, the Kingdom of Denmark points out that other legal instruments, such as the map of inland waterways and ports of the core network of Member States set out in Annex I to Regulation (EU) 2024/1679 (9) or the map of the European waterway and port network resulting from the European Agreement on Main Inland Waterways of International Importance (AGN), (10) confirm the absence of inland waterways on Danish territory.
34.      Fifth, the Kingdom of Denmark contends that certain ports or canals referred to by the Commission are connected to the sea and cannot therefore be defined as inland waterways in view of the definition of an ‘inland waterway’ under Article 3(1) of Directive 2017/2397. That is the case regarding the Limfjord (port of Aalborg), the fjord of Odense (port of Odense) and the canals of Copenhagen (port of Copenhagen). Other lakes or rivers, such as the lakes of Silkeborg, the River
Guden and the Odense
River, are used for recreational boating and small craft, unlike the large river and canal networks that Directive 2017/2397 primarily seeks to regulate.
35.      Finally, the Kingdom of Denmark argues that the national legislation in force ensures recognition of the professional qualifications of persons holding a certificate for inland waterway navigation.
36.      In its reply, the Commission maintains that it has demonstrated, with sufficient evidence, that the Kingdom of Denmark is subject to the limited obligation to transpose Directive 2017/2397, in accordance with Article 39(3) thereof, in view of the evidence provided relating to seasonal navigation or navigation in a limited geographical area covering a distance of less than 10 kilometres. Since it is the Kingdom of Denmark that wishes to rely on the derogation laid down in Article 39(4) of Directive 2017/2397, it bears the burden of
proving that it fulfils the strict conditions laid down in that exemption, which it has failed to do.
37.      As regards the legislative history of Directive 2017/2397, the Commission submits that the Parliament and the Council did not reach a clear conclusion that the Kingdom of Denmark, the Republic of Cyprus and the Republic of Malta
should be considered as Member States exempt from the application of that directive. In the final text adopted, those Member States are not mentioned in Article 39, which leaves room for interpretation as to what is technically possible in each Member State. Moreover, all Member States are addresses of that directive, under
Article 41 thereof.
38.      According to the Commission, the Kingdom of Denmark’s argument, which is based on its exclusion from the scope of Directive 2016/1629, should be rejected. The exemption granted to the Kingdom of Denmark in that directive does not automatically extend to Directive 2017/2397, the scope of which is different, despite the synergies between the two legal acts. Furthermore, recital 27 of Directive 2016/1629, as well as the other legal instruments relied on by the Kingdom of Denmark, do not make it possible to conclude that there are no inland waterways in that Member State.
39.      The same applies to the arguments put forward by the Kingdom of Denmark to challenge the classification of the examples of ports, waterways and lakes provided by the Commission as inland waterways. The fact that those waterways are connected to the sea, the impact of maritime conditions or that they are not part of a large river network has no bearing on the classification of each one
as ‘inland waterway’ within the meaning of
Article 3(1) of Directive 2017/2397.
The Commission also points out that, in accordance with Article 50 on the delimitation of the internal waters of the United Nations Convention on the Law of the Sea (‘UNCLOS’), (11) river mouths, bays and harbours are classified as ‘internal waters’, which is a concept distinct from that of ‘territorial sea’.
40.      In its rejoinder, the Kingdom of Denmark considers, first, that the exceptions provided for in Directive 2016/1629 should have an impact on the application of the exceptions provided for in Directive 2017/2397. Both directives govern the same maritime area. The concept of inland waterways should therefore be interpreted in the same way in order to avoid divergences in its interpretation. Second, it reiterates that the examples of inland waterways given by the Commission are not sufficient to prove the existence of such waterways in Denmark. The ports of Copenhagen, Aalborg and Odense (given by the Commission as examples), all concern waterways connected to the sea and therefore subject to maritime conditions such as tides and the influence of seawater. The delimitation provided for in Article 50 of UNCLOS does not alter this.
2.      Analysis
41.      According to the Court’s settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the Commission’s reasoned opinion, the Court being unable to take account of any subsequent changes. (12)
42.      As is apparent from the defence and the rejoinder lodged by the Kingdom of Denmark in these proceedings, on expiry of the period laid down in the reasoned opinions of 28 September 2023, the Kingdom of Denmark had not adopted the laws, regulations and administrative provisions necessary to comply with the limited transposition obligation according to Article 39(3) of Directive 2017/2397
and Article 2(1) of Directive 2021/1233
and, therefore, nor had that Member State communicated those provisions to the Commission on expiry of that period. (13)
43.      Nevertheless, according to the Kingdom of Denmark, there is no
failure to comply with the obligation to transpose those provisions because in that Member State inland waterway navigation is not technically possible, resulting in the application of the exemption from transposition according to Article 39(4) of Directive 2017/2397.
44.      For the purpose of determining whether the Kingdom of Denmark can rely on the exemption laid down in Article 39(4) of Directive 2017/2397 it is necessary, in the first place,
to determine the scope of that exemption.
45.      The term ‘inland waterway’ is defined in Article 3(1) of Directive 2017/2397 as meaning
‘a waterway other than the sea, open to navigation by craft referred to in Article 2’.
46.      The term ‘technically possible’ inland waterway navigation is not defined in Directive 2017/2397. In accordance with settled case-law, for the purpose of interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part. (14) The origins of such a provision may also provide information relevant to its interpretation. (15)
47.      With regard to the wording of Article 39(4), the term ‘technically possible’
navigation
relates to inland waterways.
The technical possibility
to navigate is determined by the geographical conditions and technical requirements
(such as the depth and the draught of the waterways) which allow for safe navigation. (16) Inland waterway navigation can therefore
be considered not to be
technically possible either when inland waterways do not exist in a Member State or when they are not suitable for navigation activities.
48.      With regard to the context of the term ‘technically possible’ inland waterway navigation, it must be pointed out that it forms part of a derogation to the obligation to transpose Directive 2017/2397. As a derogation to the general rule of transposition, it must be interpreted strictly.
49.      As already pointed out above, Directive 2017/2397 establishes a targeted approach for transposition based on the geographical characteristics of the Member States (17) in order to take into account both the situation of Member States in which there are no cross-border activities or inland navigation is an infrequent activity serving only local or seasonal interests and the situation of those Member States in which inland navigation is not technically possible.
50.      According to recital 15 of Directive 2017/2397, for those Member States in which inland navigation is an infrequent activity, serving only local or seasonal interests in waterways with no connections to other Member States, the obligation to transpose is limited in order to ensure that the administrative burden of transposition is proportionate.
According to recital 16, for those Member States in which inland waterway navigation is not technically possible, there should not be a disproportionate burden of transposition.
51.      It follows from the context of which Article 39(4) of
Directive 2017/2397 forms part that the absence of inland waterway connections to other Member States or the absence of inland waterway transport is not sufficient to exempt a Member State completely from transposition. At the same time, the existence of a minimum activity of inland waterway navigation is sufficient to bring the Member State concerned within the scope of the minimum obligation of transposition according to Article 39(3) of Directive 2017/2397.
52.      With regard to the objective of the term
‘technically possible’ and the aim of the legislation of which it forms part, it must be recalled that Directive 2017/2397 aims to harmonise professional qualifications for crew members in inland navigation in order to facilitate mobility, to ensure safety of navigation and to ensure the protection of human life and the environment. It follows from recital 16 of that directive that the objective of the exemption from transposition
for those Member States in which inland waterway navigation is not technically possible is to avoid a disproportionate administrative burden on those Member States. That objective of reducing the administrative burden is also taken into account for those Member States in which inland navigation is an infrequent activity, serving only local or seasonal interests.
53.      It follows that the derogations from the obligation to transpose Directive 2017/2397
exist in order to reduce the administrative burden. For the aim of a reduction in the administrative burden to take precedence over  the aim of full transposition, which is to ensure the mobility, safety and protection of human life and the environment, a Member State must be able to prove that no activity of inland waterway navigation is technically possible. If there is a
minimum of such activity (or the technical possibility for that activity), the minimum obligation to transpose the directive arises, and full exemption does not apply.
54.      The legislative history of Directive 2017/2397 reveals that the transposition obligation was the subject of debate before the final adoption. The Commission’s proposal for
a directive only made provision for a general transposition obligation. (18) At the interinstitutional tripartite dialogue between the Parliament, the Council and the Commission
of 7 June 2017, (19) the Parliament suggested an explicit exemption from the obligation to transpose the directive in regard to the Kingdom of
Denmark, the Republic of Cyprus and the Republic of Malta ‘as long as inland navigation is not technically possible on their territories’. However, in the final text adopted, there was no nominative reference to those three Member States.
55.      In the absence of a nominative reference there is no proof, contrary to the Kingdom of Denmark’s assertion, that inland waterway navigation is not technically possible in that Member State. It rather proves that the legislature reached no conclusion on that matter and, as the Commission submitted, left
the issue of what is technically possible as a matter of interpretation.
56.      In the present case the Commission maintains that inland waterway navigation is possible and is actually carried out, for instance in the port of Aalborg, on the River
Guden, on the Odense River and in the port of Copenhagen. Referring specifically to
the River
Guden and the Odense River,
the Commission states that there is a cruise ship seasonal service.
57.      The Kingdom of Denmark does not contest the existence of activity on those waterways but it contests their classification as inland waterways. It states that the
port of Aalborg, the Odense River and the port of Copenhagen are linked to the sea and are subject to maritime conditions such as tides and the influence of seawater. They may not,
therefore, be classified as inland waterways as the term ‘inland waterway’ is defined by Article 3(1)
of Directive 2017/2397 as a waterway ‘other than the sea’.
58.      I do not agree with the interpretation of ‘inland waterway’ proposed by the Kingdom of Denmark under Directive 2017/2397. It must be pointed out that, for the purposes of that directive, the definition of an ‘inland waterway’ is particularly broad. The term ‘other than the sea’ does not preclude a waterway
that is linked
or flowing to the sea
from being classified as an ‘inland waterway’
for the purposes of that directive, provided that that waterway is open to navigation by craft referred to in Article 2 of that directive.
59.      The Commission submits that that interpretation finds support in UNCLOS. Even if I agree that such an interpretation finds support in the demarcation of inland waters from the terrestrial sea under UNCLOS, (20) it must be pointed out that, for the purposes of Directive 2017/2397,
Article 3(1) lays down
an autonomous definition of ‘inland waterway’. That definition suffices to adopt an interpretation according to which a waterway linked to the sea falls
within the scope of
an ‘inland waterway’
under that directive. (21)
60.      The Kingdom of Denmark stated that other examples, such as the lakes of Silkeborg, the River
Guden or the Odense River are not navigable by the type of vessels referred to in Article 2 of Directive 2017/2397. Those lakes and rivers are used for small boats and seasonal navigation and are not linked to the navigable network of another Member State which distinguishes them from the large river and canal networks that that directive primarily seeks to regulate.
61.      In that regard, it must be recalled that, according to the case-law, the fact that an activity referred to in a directive does not yet exist in a Member State cannot release that State from its obligation to adopt laws or regulations in order to ensure that all the provisions of the directive are properly transposed. (22) It is only where transposition of a directive is pointless for reasons of geography that transposition is not mandatory. (23) That is not, however, the case for the Kingdom of Denmark. The applicability of Directive 2017/2397 is not made conditional on Member States having ‘large river and canal networks’, a term which is not, in fact, used by that directive. The absence of cross-border activities and the infrequent character of inland navigation does not amount to inland waterway navigation being technically impossible, which is the sole ground for exempting a Member State from transposition
under
Article 39(4) of that directive.
62.      Instead, Directive 2017/2397
makes specific provision for those Member States which have no inland waterways linked to the navigable network of another Member State and where navigation is only seasonal, under Article 39(3) of that directive. The examples of waterways provided by the Kingdom of Denmark are not sufficient to prove that transposing the directive is pointless for reasons of geography or that navigation is ‘not technically possible’. They demonstrate rather that inland navigation is an infrequent activity, justifying a minimum transposition obligation
under
Article 39(3) of that directive.
63.      The Kingdom of Denmark also contends that the exemption of that Member State from the transposition of Directive 2017/2397 can be inferred from the
exemption of that same Member State from the transposition of Directive 2016/1629.
64.      Directive 2016/1629 sets out the technical requirements for inland waterway vessels.
It provides, in Annex I thereto, a list of
EU inland waterways divided geographically into Zones 1, 2 and 3. There is no reference to Danish inland waterways in that list. Moreover, Article 40 of Directive 2016/1629 explicitly excludes a number of Member States, including the Kingdom of Denmark, from the obligation of transposition.
65.      The justification of the exclusion from transposition under Directive 2016/1629 is set out in recital 27 of that directive. That recital states that ‘in Denmark,
Estonia, Ireland, Greece, Spain, Cyprus, Latvia, Malta, Portugal, Slovenia and Finland, there are no inland waterways, or inland navigation is not used to a significant extent.’ For that reason, it would be ‘a disproportionate and unnecessary obligation’ for the Member States to transpose and implement that directive.
66.      I concede that there are similarities in the scope of application and in the definitions between Directive 2016/1629 and Directive 2017/2397. Moreover, Directive 2016/1629 makes a classification of EU inland waterways, which does not include Denmark. It could be argued that in the absence of classification of inland waterways under Directive 2017/2397, reference could be made to the classification under Directive 2016/1629.
67.      The problem, however, with applying the classification of inland waterways laid down in Directive 2016/1629 to Directive 2017/2397 is that, as
Article 4 of Directive 2016/1629
states, that classification is made ‘for the purposes of [that
directive]’  (namely, Directive
2016/1629). Even if the geographical conditions of a Member State remain the same, the considerations of the EU legislature
upon which
the applicability of a given legal instrument is founded can be different. Unlike Directive 2016/1629, in Directive 2017/2397 the legislature established a targeted approach
for transposition which was founded on considerations different from those upon which the earlier directive was based.
68.      It cannot, therefore, be inferred from the absence of classification of Danish inland waterways under Directive 2016/1629 that there are no inland waterways in Denmark.
Contrary to the Kingdom of Denmark’s submissions, no different conclusion can be drawn from
recital 27 of the latter directive. That recital mentions two alternative justifications for the exemption of some Member States from the obligation to transpose, being either because ‘there are no inland waterways or [because] inland navigation is not used to a significant extent’. That recital supports the argument that in some of the Member States inland navigation can be technically possible but not used to any significant extent.
69.      It must also be pointed out that Article 40 of Directive 2016/1629, by expressly excluding 11 Member States, including the Kingdom of Denmark, from being amongst
its addressees, exempts those Member States from the obligation to transpose that directive. That exemption may not, however, automatically be extended to Directive 2017/2397, which does not expressly exclude any Member State from its addressees.
70.      Indeed, pursuant to
Article 41 of Directive 2017/2397, that directive is addressed to the Member States, without exception.
71.      Moreover, as the Commission pointed out, the field regulated by the two directives is different. Directive 2016/1629 lays down the technical requirements applicable to inland navigation while Directive 2017/2397 lays down the conditions and procedures for the certification of the qualifications of persons involved in operating a craft navigating on EU waterways and for the recognition of such qualifications in the Member States.
72.      The difference in the subject matter of the two directives demonstrates that the considerations that led the legislature to exempt certain Member States from the obligation to
transpose Directive 2016/1629, which concerns technical requirements, did not prevail as regards the obligation to transpose Directive 2017/2397, which concerns mutual recognition. While the EU legislature considered that transposing the technical requirements of Directive 2016/1629 relating to vessels would be disproportionate for Member States with ‘no inland waterways’ or those in which ‘inland navigation is not used to a significant extent’, different considerations were relevant as regards mutual recognition governed by Directive 2017/2397, which established a targeted approach for transposition.
73.      The Commission accepts that there is a ‘synergy’ between the two directives, regarding the particular situation of the Member States in which inland navigation is not significant and have no inland waterways linked to other Member States.
74.      The particular situation of those Member States is, however,
already embedded
in the recognition by the EU legislature of a
limited  obligation to transpose under Article 39(3) of Directive 2017/2397.
75.      For essentially the same reasons, a different argument may not be drawn from the absence of reference to Denmark in the maps of
the trans-European transport networks for inland waterway transport. (24) The
fact that Danish waterways do not form part of the comprehensive and core networks for inland waterway transport for the purpose of Regulation 2024/1679
has no relevance on the scope of application of Directive 2017/2397.
As already pointed out,
Directive 2017/2397 makes
specific provision for Member States with no inland waterways linked to the navigable network of another Member State
and which do not form part of a core network.
76.      It follows from the foregoing that the Kingdom of Denmark is under a limited obligation to transpose Directive 2017/2397, in accordance with Article 39(3) of Directive 2017/2397 and Article 2 of Directive 2021/1233.
77.      Accordingly, by having failed to adopt, on the expiry of the period prescribed in the reasoned opinions of 28 September 2023, all the laws, regulations and administrative provisions necessary to comply with those provisions, and therefore, by having failed to communicate them to the Commission, the Kingdom of Denmark has failed to fulfil its obligations under those provisions.
B.      The failure to fulfil obligations under Article 260(3) TFEU
1.      The application of Article 260(3) TFEU
(a)    Arguments of the parties
78.      According to the Commission, the purpose of Article 260(3) TFEU is to encourage Member States to transpose directives adopted under a legislative procedure within the time limits set by the EU legislature and thus to ensure that EU legislation is truly effective.
79.      In the present case, Directive 2017/2397 was adopted under the ordinary legislative procedure and the Kingdom of Denmark has failed to fulfil its obligations under Article 39(3) of that directive and under
Article 2(1) of Directive 2021/1233 to adopt and publish, by 17 January 2022 at the latest, the laws, regulations and administrative provisions necessary to comply with those directives and to communicate those provisions to the Commission without delay. The conditions for the application of Article 260(3) TFEU are therefore met.
80.      In its defence, the Kingdom of Denmark contests the applicability of Article 260(3) TFEU. The crux of the issue raised in the present action is a disagreement on the substance related to the question whether inland navigation is possible or not in Denmark, within the meaning of Article 39(4) of Directive 2017/2397. Thus, the issue raised is not whether the Kingdom of Denmark adopted the necessary measures to comply with those directives and whether it communicated them to the Commission, but whether those directives were applicable to the Kingdom of Denmark. In view of the subject matter of the dispute, Article 260(3) TFEU is not applicable in the present action.
81.      The Kingdom of Denmark submits that it follows from settled case-law (25) that Article 260(3) TFEU does not apply in the context of an action pertaining to whether transposition is incorrect, when the Member State concerned already informed the Commission of such transposition. Τhe scope of application of Article 260(3) TFEU
excludes, therefore, an action in which the existence of an infringement requires the interpretation of the scope of application of the relevant provisions of a directive.
82.      Moreover, the Kingdom of Denmark notified the Commission, before the expiry of the transposition deadline, namely by a letter of 19 August 2021, as well as by means of notification in the THEMIS system, that it is exempted from transposition pursuant to Article 39(4) of Directive 2017/2397. Therefore, the Kingdom of Denmark complied with its obligation to ‘notify measures transposing a directive’ under Article 260(3) TFEU. Indeed, that obligation must be understood within the context of the act that has to be transposed. Article 260(3) TFEU does not oblige the Member States to proceed with a transposition that goes beyond what is required under the relevant legislative act.
83.      In support of its position, the Kingdom of Denmark
adds that Article 39(4) of Directive 2017/2397 does not indicate precisely which Member States are exempted. The Commission’s assertion that only the Republic of Cyprus and the Republic of Malta are exempted from transposition relies on an interpretation of that provision.
84.      Finally, the Kingdom of Denmark contends that if Article 260(3) TFEU were to apply in the present case, it
would be deprived
of the possibility of defending its interpretation of Article 39(4) of Directive 2017/2397
before the Court without running the risk of being subject to financial penalties.
85.      In the reply, the Commission submits that
the Kingdom of Denmark’s assertion that the crux of the problem in this case is a ‘disagreement on the substance’ as to the scope of Article 39(4) is incorrect. The Court does not need to assess the content of the transposition measures, since those measures have not been communicated.
86.      The Commission also objects to the Kingdom of Denmark’s assertion that it complied with the notification obligation. The communication of the transposition measures to the Commission does not cover ‘any measure’ but must be meaningful. (26) The documents submitted by the Kingdom of Denmark do not satisfy that standard.
(b)    Analysis
87.      It must be borne in mind that the first subparagraph of Article 260(3) TFEU provides that when the Commission brings a case before the Court pursuant to Article 258 TFEU on the ground that the Member State concerned has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. In accordance with the second subparagraph of Article 260(3) TFEU, if the Court finds that there is an infringement it may impose a lump sum or penalty payment on the Member State concerned not exceeding the amount specified by the Commission. The payment obligation is to take effect on the date set by the Court in its judgment.
88.      As regards the scope of Article 260(3) TFEU, the Court has held that that provision has to be interpreted in a manner which, on the one hand, allows prerogatives held by the Commission for the purposes of ensuring the effective application of EU law and protecting the rights of the defence and the procedural position enjoyed by the Member States under Article 258 TFEU, read in conjunction with Article 260(2) TFEU, to be guaranteed, and, on the other, puts the Court in a position of being able to exercise its judicial function of determining, in a single set of proceedings, whether the Member State in question has fulfilled its obligations to notify the measures transposing the directive in question and, where relevant, assess the seriousness of the declared failure and impose the financial penalty which it considers to be the most suited to the circumstances of the case. (27)
89.      In that context, the Court has interpreted the expression ‘obligation to notify measures transposing a directive’ in Article 260(3) TFEU as referring to the obligation of the Member States to provide sufficiently clear and precise information on the measures transposing a directive, the Member States being required to indicate, for each provision or provisions of a directive, the provisions that transpose it. (28) However, it is not for the Court, in judicial proceedings brought under Article 260(3) TFEU, to examine whether the national measures notified to the Commission ensure a correct transposition of the provisions of the directive in question. (29)
90.      The scope of Article 260(3) TFEU covers, therefore, not only the situation of total inactivity of a Member State to comply with the ‘procedural’ obligation to notify but also the failure of the substantive obligation to provide the Commission with clear and precise information on the transposing measures for each provision of a directive. The situation of erroneous transposition is, however, excluded, and must be dealt with in the context of the normal proceedings under Article 258 TFEU. (30)
91.      In the present case, it is not disputed that
the Kingdom of Denmark did not notify the Commission of any transposition measures in relation to
Article 39(3) of Directive 2017/2397. In the Commission’s point of view, it is clear that Article 260(3) TFEU is applicable. By contrast, in the Kingdom of Denmark’s point of view, that is not the case because it was not obliged to transpose the directive, under
Article 39(4) thereof. As a matter of fact, on 19 August 2021 – well before the expiry of the transposition date of that directive – the Kingdom of Denmark notified the Commission that it considered itself exempt from the obligation to transpose the directive in accordance with that latter provision. (31)
92.      The question which is raised is whether such situation can qualify as a failure to fulfil the ‘obligation to notify measures transposing a directive’ within the meaning of Article 260(3) TFEU.
93.      To answer that question, account must be taken of the transposition method of the directive that is the subject of
the Commission’s action and the conditions framing derogations from the obligation to transpose it. Directive 2017/2397 does not lay down an
obligation to transpose which is uniform for all Member States. As has already been explained above, (32) there is a targeted approach for transposition,
according to which the scope of the transposition obligation ranges
from full transposition, limited and minimum transposition to no transposition, depending
each time on the fulfilment of certain criteria.
94.      The targeted approach for transposition established by that directive does not release Member States from the requirement to provide the Commission with clear and precise information. (33) However, the content of that information necessarily depends on the scope of their transposition obligations depending on the provision invoked.
95.      My analysis above on the existence of an infringement
under Article 258 TFEU demonstrates that the determination of the scope of the transposition obligation under Directive 2017/2397 is not obvious. It requires an interpretation of the conditions laid down in Article 39(3) and (4) of Directive 2017/2397.
While the scope of Article 39(3) of that directive can be determined by reference to Article 2(3) thereof, the scope of Article 39(4) of Directive 2017/2397 requires an interpretation of the abstract criterion of inland waterway navigation being ‘not technically possible’.
96.      If the Court agrees with my proposal that the Commission has succeeded in discharging the burden of proof that Article 39(3) of Directive 2017/2397 is applicable in the present case, as opposed to Article 39(4) thereof,
that does not automatically establish that Article 260(3) TFEU applies. That is so as the present action requires the Court first to determine the scope of the transposition obligations laid down by that directive.
97.      The
determination as to whether the Kingdom of Denmark was justified
in relying on Article 39(4) of Directive 2017/2397 in order to consider itself exempt from transposition, concerns, ultimately, the correctness of transposition of that directive which, according to the Court’s case-law, (34) can only be determined under Article 258 TFEU without the infringement entailing the immediate imposition of sanctions pursuant to Article 260(3) TFEU.
98.      In the context of such a specific targeted approach for transposition,
where the total exemption from the transposition obligation is based on abstract
criteria, the failure of a Member State, which considers that it fulfils those criteria, to transpose the directive is not merely the result of inaction. It is the result of the interpretation it adopts of the scope of the exemption. The validity of that interpretation must be examined by the Court in standard proceedings under Article 258 TFEU.
99.      The situation would be different if the Member States covered by Article 39(4) of Directive 2017/2397 were referred to expressly by name. In such a situation there would be no substantive dispute as to which Member State falls within the scope of the exemption. If the final text were to name only the Republic of Cyprus and the Republic of Malta – Member States which according to the Commission’s view are the only ones on whose territory inland waterway navigation is ‘not technically possible’ – then it would be beyond doubt that the Kingdom of Denmark is not exempted from the obligation to transpose the directive.
100. However, that was not the choice made by the legislature. The meaning of the current wording under
Article 39(4) of Directive 2017/2397,
as the Commission recognises in its reply, is
‘the subject of interpretation as to what is technically possible in each Member State’  (emphasis added).
101. It must also be recognised that the fact that the Kingdom of Denmark was exempted at earlier stages of the legislative procedure adds to the uncertainty as to the scope of the exemption which thus requires interpretation.
102. In case of dispute as to the interpretation of each of the transposition options
established by that directive, it is for the Court to rule on the applicable option. That matter, far from being obvious, first requires a clarificatory judgment
to be given in proceedings brought under Article 258 TFEU. (35) If the Member State concerned fails to comply with that judgment, only then would it be possible to impose sanctions under Article 260(2) TFEU.
103. If it were accepted that in such a situation Article 260(3) TFEU is applicable, that would be irreconcilable with the purpose of that provision. The Court has ruled that the objective pursued by the introduction of the system set out in Article 260(3) TFEU is not only to induce Member States 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, but also to simplify and speed up the procedure for imposing pecuniary sanctions for failures to comply with the obligation to notify a national measure transposing a directive adopted through a legislative procedure. (36)
104. In the context of the present action, it is not possible for the accelerated procedure for imposing sanctions
to serve the purposes of inducing the Member State concerned to transpose the directive and of simplifying
and speeding up the procedure. Those purposes
could only be served where there is a clear and undisputed obligation to transpose.
However, for the reasons set out above, that is not the case in a situation in which the legislature entirely exempted Member States from transposition where they fulfil abstract criteria requiring interpretation.
105. If the Court finds that there is an infringement, the Member State concerned must be given the possibility to comply with the Court’s judgment after the Court has ruled on the proper interpretation of the scope of the transposition obligation. That applies all the more so in the context of the present action where, before the expiry of the transposition deadline,
the Kingdom of Denmark put forward its position that it does not have inland waterways within its territory and is therefore exempted from the obligation to transpose Directive 2017/2397 on the basis of Article 39(4) thereof. (37)
106. The legislative context of which Article 260(3) TFEU forms part, which includes the procedure for failure to fulfil obligations referred to in Article 258 TFEU, also supports the interpretation I propose. In that regard, it is to be noted that the procedure laid down in Article 258 TFEU allows the Member States the opportunity to challenge the position adopted by the Commission in a particular case, as regards the measures enabling a correct transposition of the directive concerned to be ensured without, however, being immediately exposed to the risk of a financial penalty being imposed on them. Such a penalty can be imposed, under Article 260(2) TFEU, only if the Member State in question has not taken the measures required by execution of a first judgment declaring a failure to fulfil obligations. (38)
107. In other words, a Member State must have the possibility of putting forward its view on the scope of the obligation to transpose when that obligation depends on criteria set out by the legislature and of challenging the Commission’s differing view, without the impending threat of sanctions that could immediately be imposed hanging over that possibility. Otherwise, as the Kingdom of Denmark submitted, the effectiveness of the pre-litigation procedure could be compromised.
108. The risk of financial penalties and also the point in time from which sanctions may be applied
makes an important difference between a judgment under Article 258 TFEU and Article 260(3) TFEU.
As has been emphasised
in the legal scholarship, whereas under Article 258 TFEU a lump sum can be imposed only after the second judgment of Article 260(2) TFEU, ‘under Article 260(3) TFEU a lump sum can be imposed for the period before the delivery of the (first and only) judgment of the Court’. (39) Imposing sanctions on a Member State from that
‘first and only’ judgment for failure to transpose a directive with a built-in exception to transposition would be liable to undermine the credibility of the system of sanctions.
109. As a final remark, I wish to point out that in the present action, contrary to the Commission submissions, the situation is different from the situation in which the Court ruled on cases of non-notification of transposition measures despite the Member States having contested their obligation to transpose due to the alleged irrelevance of certain provisions of the directives concerned.
110. It is true that it follows from the case-law of the Court that such an assessment by a Member State is manifestly insufficient to relieve it of its obligation to adopt the laws, regulations and administrative provisions necessary to comply with a directive or its obligation to notify to the Commission the measures transposing that directive. (40)
111. However, the present action does not concern a Member State contesting the relevance of the provisions of a directive which it is normally obliged to transpose. It concerns a directive that has a specific targeted approach for transposition in which the total exemption from transposition is embedded in a provision which can give rise to different interpretations.
112. For all those reasons, I take the view that Article 260(3) TFEU does not apply in the circumstances of the present action in so far as there is a substantive dispute over the scope of the obligation to transpose Directive 2017/2397, and more particularly over the interpretation of the abstract criterion exempting a Member State from transposition, according to Article 39(4) thereof. Accordingly, the Commission’s claim under
Article 260(3) TFEU should not be upheld.
2.      The financial penalties
(a)    Arguments of the parties
113. The Commission
asks the Court to impose both a lump sum and a daily penalty payment on the Kingdom of Denmark as from the day of delivery of the judgment,
on the basis of Article 260(3) TFEU, following the finding that that Member State had failed to fulfil its obligation to communicate measures transposing Directives 2017/2397 and 2021/1233.
114. The Commission determines the amount of those penalties on the basis of the seriousness of the infringement, the duration of that infringement and the need to ensure that the penalty has a deterrent effect in order to prevent repetition, in accordance with
its communication 2023/C 2/01 entitled ‘Financial sanctions in infringement proceedings’. (41)
115. The Kingdom of Denmark contests the imposition of financial penalties which it argues would be inappropriate in the circumstances of the present case. It should
have the possibility to take measures to comply with the judgment of the Court in the event that the Commission’s first ground on Article 258 TFEU were to succeed. However, if the Court considers that a financial penalty must be imposed, only a daily penalty payment would be appropriate and take effect as from a date later than the judgment.
(b)    Analysis
116. I see no need to take a view on the exact calculation of the financial penalties, since I am of the opinion that Article 260(3) TFEU is not applicable in the circumstances of the present case. Nevertheless, I would like to make some comments, in the event that the Court does not agree with my position.
117. It must be pointed out that, in order to achieve the objective pursued by Article 260(3) TFEU, the authors of that provision provided for two types of financial penalty, the lump sum and the penalty payment.
118. In that regard, it is apparent from the case-law of the Court that the application of each of those measures depends on their respective ability to meet the objective pursued according to the circumstances of the case. While the imposition of a penalty payment seems 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 be likely to persist, the imposition of a lump sum is based more on 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. (42)
119. As regards the question
whether a
financial penalty should be imposed in the present case, it must be borne in mind 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 that are appropriate, in particular, for preventing the recurrence of similar infringements of EU law. (43)
120. In the present case, for the reasons that I have extensively explained in my analysis above, the failure to fulfil obligations by the Kingdom of Denmark is due to its incorrect interpretation of the scope of its obligation to transpose Directive 2017/2397. That matter must first be determined by the Court and the Member State concerned should be given the opportunity to comply with the Court’s judgment. The imposition of financial sanctions would therefore serve no purpose of dissuasion to prevent future repetition of similar infringements of EU law.
121. In the alternative, in the event that the Court considers it appropriate to impose a financial penalty, my proposal, in accordance with the submission of the Kingdom of Denmark, would be to impose only a daily penalty payment.
122. As regards the calculation of the penalty payment, it is, under Article 260(3) TFEU, for the Court to fix the date on which the obligation to pay takes effect. (44) In view of the specific circumstances of the present case, (45) it would appear appropriate for the daily penalty payment to be imposed with effect from a date after the delivery of the judgment,
to be determined by the Court, (46) until the Member State has put an end to the infringement found. (47) Setting that commencement date after the date of delivery of the judgment would allow
the Kingdom of
Denmark to achieve compliance with the Court’s interpretation of Article 39(3) and (4) of Directive 2017/2397.
V.      Costs
123. Under Article 138(3) of the Rules of Procedure of the Court, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. Since, according to my proposal, the Commission and the Kingdom of Denmark have each failed on one head, they should be ordered to bear their own costs.
VI.    Conclusion
124. In the light of the foregoing considerations, I propose that the Court should:
(1)      Declare that by failing, on expiry of the period laid down in the reasoned opinions of the European Commission of 28 September 2023, to adopt the laws, regulations and administrative provisions necessary to comply with Article 39(3) of Directive (EU) 2017/2397 of the European Parliament and of the Council of 12 December 2017 on the recognition of professional qualifications in inland navigation and repealing Council Directives 91/672/EEC and 96/50/EC and with Article 2(1) of Directive (EU) 2021/1233 of the European Parliament and of the Council of 14 July 2021 amending Directive (EU) 2017/2397 as regards the transitional measures for the recognition of third-country certificates, or, in any event, by failing to notify such provisions to the European Commission, the Kingdom of Denmark has failed to fulfil its obligations under those provisions;
(2)      Dismiss the action as to the remainder;
(3)      Order the Commission and the Kingdom of Denmark each to bear their own costs.
1      Original language: English.
2      OJ 2017 L 345, p. 53.
3      OJ 2021 L 274, p. 52.
4      See, in general, Grimaldi, M., Inland waterway transport: the European legal framework,  Routledge, Oxon/New York, 2023, pp. 132 to 212.
5      See recital 43 of Directive 2017/2397.
6      Decision No 1692/96/EC of the European Parliament and of the Council of 23 July 1996 on Community guidelines for the development of the trans-European transport network (OJ 1996 L 228, p. 1) (‘the TEN‑T map’).
7      Directive of the European Parliament and of the Council of 14 September 2016 laying down technical requirements for inland waterway vessels, amending Directive 2009/100/EC and repealing Directive 2006/87/EC (OJ 2016 L 252, p. 118).
8      Judgments of 14 June 2007, Commission v Belgium (C‑422/05, EU:C:2007:342, paragraph 59), and of 14 January 2010, Commission v Czech Republic (C‑343/08, EU:C:2010:14, paragraphs 39 to 42).
9      Regulation of the European Parliament and of the Council of 13 June 2024 on Union guidelines for the development of the trans-European transport network, amending Regulations (EU) 2021/1153 and (EU) No 913/2010 and repealing Regulation (EU) No 1315/2013 (OJ L,
2024/1679).
10      United Nations Treaty Series, Vol. 2072, p. 313.
11      Concluded at Montego Bay on 10 December 1982 (United Nations Treaty Series, Vol. 1833, p. 3).
12      Judgments of 30 January 2002,  Commission v Greece (C‑103/00, EU:C:2002:60, paragraph 23), and of 25 April 2024, Commission v Poland (Whistleblowers directive) (C‑147/23, EU:C:2024:346, paragraph 28).
13      In my subsequent analysis, for the convenience of the reader, to the extent that Directive 2021/1233 modifies provisions for which there is an obligation of limited transposition under Article 39(3) of Directive 2017/2397, I will refer only to the latter directive.
14      See judgments of 17 November 1983,
Merck (292/82, EU:C:1983:335, paragraph 12), and of 12 February 2026, Stichting Koskea (C‑490/24, EU:C:2026:89, paragraph 23).
15      Judgment of 11 November 2025, Denmark v Parliament and Council (Adequate minimum wages) (C‑19/23, EU:C:2025:865, paragraph 106 and the case-law cited).
16      See Jessen, H. ‘EU Law and Inland Waterway Transportation’, in
Jessen, H. and Werner, M.J. (eds),
EU Maritime Transport Law,  Beck-Hart-Nomos,
2016, p. 54, and van Dorsser, C., ‘Existing waterway infrastructures and future needs’, in Wiegmans, B. and
Konings, R. (eds), Inland waterway transport – Challenges and prospects,  Routledge, London, 2016, pp. 99 to 124, at p. 99.
17      See above, point 19 of the present Opinion.
18      See Article 35 of the proposal for a directive
of the European Parliament and of the Council on the recognition of professional qualifications in inland navigation and repealing Council Directive 96/50/EC and Council Directive 91/672/EEC (COM(2016) 82 final).
19      Working document of the General Secretariat of the Council, Brussels 9 June 2017.
20      Article 8(1) of UNCLOS states that, with the exception to Part IV of that convention (which pertains to archipelagic States), ‘waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State’.
It follows from that provision that internal waters are inshore waters, defined by opposition to the terrestrial sea.
See Bangert, K., ‘Internal Waters’,
in Max Planck Encyclopaedia of Public International Law, Oxford Public International Law, and Churchill, R.R. and Lowe, A.V., The Law of the Sea, 3rd ed., Juris Publishing/Manchester University Press, Yonkers/Manchester, 1999, p. 60, who explain that internal waters are those waters which ‘lie landward of the baseline from the territorial sea and other maritime zones are measured’.
21      This does not preclude a different legal classification by the Member State concerned for purposes other than the Directive 2017/2397. See Coelho, N.F. and Raakjaer, J., ‘Governance of inland port classification: insights from the Limfjord in Denmark’,
WMU Journal of Maritime Affairs,
Vol. 25, 2025, p. 119.
22      Judgment of 14 January 2010, Commission v Czech Republic (C‑343/08, EU:C:2010:14, paragraph 39 and the case-law cited).
23      Ibid., paragraph 42.
24      See Annex I
to
Regulation 2024/1679.
25      The Kingdom of Denmark refers to the judgment of 8 July 2019, Commission v Belgium (Article 260(3) TFEU – High-speed networks) (C‑543/17, EU:C:2019:573, paragraph 55).
26      Judgment of 8 July 2019,
Commission v Belgium (Article 260(3) TFEU – High-speed networks) (C‑543/17, EU:C:2019:573, paragraphs 51 to 54).
27      Judgments of 8 July 2019, Commission v Belgium (Article 260(3) TFEU – High-speed networks) (C‑543/17, EU:C:2019:573, paragraph 58), and of 16 July 2020, Commission v Ireland (Anti-money laundering) (C‑550/18, EU:C:2020:564, paragraph 55).
28      Judgments of 8 July 2019, Commission v Belgium (Article 260(3) TFEU – High-speed networks) (C‑543/17, EU:C:2019:573, paragraph 59), and of 16 July 2020, Commission v Ireland (Anti-money laundering) (C‑550/18, EU:C:2020:564, paragraph 56). The Court ruled that in order to satisfy the obligation of legal certainty and to ensure the transposition of the provisions of that directive in full throughout their territory, the Member States are required to state, for each provision of the directive, the national provision or provisions ensuring its transposition. Once notified, and having also received a correlation table where relevant, it is for the Commission to establish, for the purposes of seeking a financial penalty to be imposed on the Member State in question provided for in Article 260(3) TFEU, whether certain transposition measures are clearly lacking or do not cover all the territory of the Member State in question.
29      Ibid.
30      See
Prete, L., Infringement proceedings in EU Law, Kluwer Law International, Alphen aan den Rijn, 2017, pp. 239 to 290; Prete, L., ‘Infringement Procedures and Sanctions under Article 260 TFEU: Evolution, Limits and Future Prospects’,  in Montaldo, S., Costamagna, F. and Miglio, A. (eds),
EU Law Enforcement: The Evolution of Sanctioning Powers, Routledge, London, 2021, p. 71, at p.75
et seq.
31      The relevant letter from the Kingdom of Denmark to the Commission is part of the file of the case before the Court.
32      See above, point 19 of the present Opinion.
33      This is also stated in recital 43 of Directive 2017/2397.
34      See above, point 90 of the present Opinion.
35      See, to that effect, Opinion of Advocate General Szpunar in Commission v Belgium (Article 260(3) TFEU – High-speed networks) (C‑543/17, EU:C:2019:322, point 71).
36      Judgments of 8 July 2019, Commission v Belgium (Article 260(3) TFEU – High-speed networks) (C‑543/17, EU:C:2019:573, paragraph 52), and of 6 March 2025, Commission v Czech Republic (Whistleblowers directive) (C‑152/23, EU:C:2025:147, paragraph 78).
37      In its letter of 19 August 2021, after making reference to Article 39(4) of Directive 2017/2397, the Kingdom of Denmark concludes that ‘consequently we do not believe it is feasible to notify the Commission the requested information, as the notifications listed in the annex to the letter are all associated with activities related to inland waterways and training of inland waterway personnel not present in Denmark’.
38      Judgment of 8 July 2019, Commission v Belgium (Article 260(3) TFEU – High-speed networks) (C‑543/17, EU:C:2019:573, point 57).
39      Prete, L. and Smulders, B., ‘The age of maturity of infringement proceedings’,
Common Market Law Review, Vol. 58, Issue 2, 2021,
pp. 285 to 332, at p. 329. See also Wendenburg, A., ‘The one-stage infringement procedure (Article 260(3) TFEU) and the irrelevance of political crises in Member States in the recent case-law of the CJEU’, Revista General de Derecho Europeo,  Vol. 54, 2021, at p. 3.
40      Judgment of 6 March 2025, Commission v Czech Republic (Whistleblowers directive) (C‑152/23, EU:C:2025:147, paragraph 66 and the case-law cited).
41      OJ 2023 C 2, p.
1.
42      Judgment of 16 July 2020, Commission v Ireland (Anti-money laundering) (C‑550/18, EU:C:2020:564, paragraph 76).
43      Judgment of 16 July 2020, Commission v Ireland (Anti-money laundering) (C‑550/18, EU:C:2020:564, paragraph 78).
44      Judgment of 8 July 2019, Commission v Belgium (Article 260(3) TFEU – High-speed networks) (C‑543/17, EU:C:2019:573, paragraph 91).
45      Circumstances in the light of which, for the reasons that I have already explained above (point 87
et seq. of the present Opinion), it should be considered that Article 260(3) TFEU does not apply.
46      In view of the limited obligation of transposition under Article 39(3) of Directive 2017/2397 of only a minimum number of provisions, a period of few months after the delivery of the judgment could be sufficient.
47      A periodic penalty can only be imposed in so far as the failure to fulfil obligations persists on the date set by the Court.