Communication from the Commission — Updating of data used to calculate lump sum and penalty payments to be proposed by the Commission to the Court of Justice of the European Union in infringement proceedings

(2019/C 309/01)

I. Introduction

The 2005 Commission Communication on the application of Article 228 of the EC Treaty (1) (now Article 260(1) and (2) TFEU) established the basis on which the Commission calculates the amount of the financial sanctions (either lump sum or penalty payments) that it requests the Court of Justice to apply when the Commission brings a case before the Court under Article 260(2) TFEU, in the context of infringement proceedings against a Member State.

In its Communication of 2010 (2) on the updating of the data used for this calculation, the Commission established that these macroeconomic data should be adjusted every year, in order to take into account inflation and gross domestic product (GDP) movements.

The 2011 Commission Communication on the implementation of Article 260(3) TFEU (3) and the 2017 Commission Communication ‘EU law: Better results through better application’ (4) emphasise that the same method as established by the 2005 Communication applies for the calculation of the financial sanctions which the Commission requests the Court of Justice to apply under Article 260(3) TFEU.

The yearly update provided in this Communication is based on developments in the inflation and GDP of each Member State (5), which reflects the payment capacity of the Member State in question. The relevant statistics that are to be used relating to the rate of inflation and GDP are those established two years prior to the update (‘t-2 rule’), as two years is the minimum period of time necessary for gathering relatively stable macroeconomic data. In addition, following the communication of February 2019 (6), the institutional weight of the Member States which had previously been based on the number of votes held by each Member State in accordance with the rules on the weighting of votes in the Council is now based on the number of seats allocated to each Member State for its representatives in the European Parliament.

This Communication is therefore based on economic data for nominal GDP and the GDP deflator for 2017 (7), as well as the number of seats allocated to a Member State in the European Parliament.

II. Components of the update

The list of economic criteria to be updated is as follows:

— the standard flat-rate amount for the penalty payment (8), currently fixed at EUR 3 105, to be revised in line with inflation;

— the standard flat-rate amount for calculating the daily amount in order to determine the lump sum (9), currently fixed at EUR 1 035, to be revised in line with inflation;

— the special ‘n’ factor (10), to be revised in line with the GDP of the Member State in question, taking into account the number of seats it has in the European Parliament; the ‘n’ factor is identical for the calculation of lump sum and daily penalty payments;

— minimum lump sum payments (11) to be revised in line with inflation.

III. Updates

The Commission will apply the following updated figures to calculate the amount of the financial sanctions (lump sum or penalty payments) when it brings a case to the Court of Justice under Article 260(2) and (3) TFEU:

1. the standard flat rate for calculating the penalty payment is EUR 3 116;

2. the standard flat rate for calculating the daily amount in order to determine the lump sum is EUR 1 039;

3. the special ‘n’ factor and the minimum lump sum for the 28 EU Member States are set as follows: Member State Special ‘n’ factor Minimum lump sum (EUR 1 000 ) Belgium 0,79 2 037 Bulgaria 0,24 619 Czech Republic 0,52 1 341 Denmark 0,51 1 315 Germany 4,62 11 915 Estonia 0,10 258 Ireland 0,47 1 212 Greece 0,51 1 315 Spain 2,07 5 338 France 3,39 8 743 Croatia 0,19 490 Italy 2,92 7 530 Cyprus 0,09 232 Latvia 0,12 309 Lithuania 0,18 464 Luxembourg 0,15 387 Hungary 0,42 1 083 Malta 0,07 181 Netherlands 1,14 2 940 Austria 0,67 1 728 Poland 1,27 3 275 Portugal 0,53 1 367 Romania 0,64 1 651 Slovenia 0,15 387 Slovakia 0,27 696 Finland 0,44 1 135 Sweden 0,80 2 063 United Kingdom 3,40 8 768

The Commission will apply the updated figures to decisions it takes to bring a case before the Court of Justice under Article 260 TFEU as from the adoption of this Communication. As already stated in point 3 of the communication of February 2019, the Commission will recalculate the above figures once the withdrawal of the United Kingdom from the European Union becomes legally effective.

(1) SEC(2005) 1658 (OJ C 126, 7.6.2007, p. 15).

(2) SEC(2010) 923/3. This Communication has been updated in 2011 [SEC(2011) 1024 final], in 2012 [C(2012) 6106 final], in 2013 [C(2013) 8101 final], in 2014 [C(2014) 6767 final], in 2015 [C(2015) 5511 final], in 2016 [C(2016) 5091 final], in 2017 [C(2017) 8720 final] and in 2018 [C(2018) 5851 final] for the yearly adjustment of economic data.

(3) OJ C 12, 15.1.2011, p. 1.

(4) OJ C 18, 19.1.2017, p. 10.

(5) According to the general rules set out in the Communications of 2005 and 2010.

(6) C(2019) 1396 final (OJ C 70, 25.2.2019, p. 1).

(7) The GDP deflator is used as a measure of inflation. The uniform amounts for lump sum and penalty payments are rounded to the nearest whole number. The minimum lump sums are rounded to the nearest thousand. The ‘n’ factor is rounded to two decimal places.

(8) The standard or uniform flat-rate amount for daily penalty payments is defined as the fixed basic amount to which certain multiplier weightings are applied. The weightings are the coefficients for the seriousness and the duration of the infringement and the special ‘n’ factor corresponding to the Member State concerned.

(9) The flat-rate amount is to be applied when calculating the lump sum. As regards Article 260(2) TFEU, the lump sum will result from multiplying a daily amount (resulting from multiplying the standard flat-rate amount by the coefficient for seriousness, and the result of this calculation being multiplied by the special ‘n’ factor) by the number of days the infringement persists between the date of the first judgment and the date that the infringement comes to an end or the date of delivery of the judgment under Article 260(2) TFEU. As regards Article 260(3) TFEU, according to point 28 of the Commission Communication on ‘Implementation of Article 260(3) of the Treaty’ [SEC(2010) 1371 final] (OJ C 12, 15.1.2011, p. 1), the lump sum will result from multiplying a daily amount (resulting from multiplying the standard flat-rate amount by the coefficient for seriousness, and the result of this calculation being multiplied by the special ‘n’ factor) by the number of days from the day after the expiry of the time limit for transposition set out in the directive until the date that the infringement comes to an end or the date of delivery of the judgment under Articles 258 and 260(3) TFEU. The lump sum calculated on the basis of the daily amount should apply when the result of the above-mentioned calculation exceeds the minimum lump sum.

(10) The special ‘n’ factor takes into account the payment capacity of the Member State (gross domestic product (GDP)) and the number of seats it has in the European Parliament.

(11) The minimum fixed lump sum payment is determined for each Member State according to the special ‘n’ factor. The minimum fixed lump sum will be proposed to the Court when the summed-up daily lump sum payments do not exceed the minimum fixed lump sum.