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 in infringement proceedings

(2018/C 340/02)

I. INTRODUCTION

The 2005 Commission Communication on the application of Article 228 of the EC Treaty (1) (now Article 260(1) and (2) of the 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 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). 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. This Communication is therefore based on economic data for nominal GDP and the GDP deflator for 2016 (6), as well as the current weighting of Member State voting rights in the Council.

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 (7), currently fixed at EUR 700 per day, to be revised in line with inflation,

— the standard flat-rate amount for the lump sum payment (8), currently fixed at EUR 230 per day, to be revised in line with inflation,

— the special ‘n’ factor (9), to be revised in line with the GDP of the Member State in question, taking into account the number of voting rights it has in the Council; the ‘n’ factor is identical for the calculation of lump sum and daily penalty payments,

— minimum lump sum payments (10) 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 amount for calculating the penalty payment is fixed at EUR 690 per day;

(2) the standard flat rate for the lump sum payment is fixed at EUR 230 per day;

(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 4,89 2 790 Bulgaria 1,51 862 Czech Republic 3,16 1 803 Denmark 3,03 1 729 Germany 20,74 11 835 Estonia 0,63 359 Ireland 3,02 1 723 Greece 3,14 1 792 Spain 11,93 6 808 France 17,46 9 963 Croatia 1,24 708 Italy 15,16 8 651 Cyprus 0,59 337 Latvia 0,69 394 Lithuania 1,13 645 Luxembourg 1,00 571 Hungary 2,54 1 449 Malta 0,38 217 Netherlands 6,56 3 743 Austria 4,08 2 328 Poland 7,36 4 200 Portugal 3,24 1 849 Romania 3,35 1 912 Slovenia 0,87 496 Slovakia 1,64 936 Finland 2,67 1 524 Sweden 4,68 2 671 United Kingdom 18,10 10 328

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.

(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] and in 2017 [C(2017) 8720 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) The GDP deflator is used as a measure of inflation. The uniform amounts for lump sum and penalty payments are rounded to the nearest multiple of ten. The minimum lump sums are rounded to the nearest thousand. The ‘n’ factor is rounded to two decimal places.

(7) 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.

(8) 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 abovementioned calculation exceeds the minimum lump sum.

(9) The special ‘n’ factor takes into account the capacity of the Member States to pay (gross domestic product (GDP)) and the number of votes it has in the Council.

(10) 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.