Unlike the procedure established under Article 258 TFEU, which is designed to obtain a declaration that the conduct of a Member State is in breach of EU law and to terminate that conduct, the procedure provided for under Article 260 TFEU has a much narrower ambit, since it is designed only to induce a defaulting Member State to comply with a judgment establishing a breach of obligations. Consequently, that latter procedure must be regarded as a special judicial procedure for the enforcement of judgments, in other words, as a method of enforcement.

Only a failure of a Member State to fulfil its obligations under the TFEU which the Court has held, on the basis of Article 258 TFEU, to be well founded may be dealt with under the procedure provided for in Article 260 TFEU.

Where, in the context of verification of compliance with a judgment delivered by the Court of Justice pursuant to Article 260 TFEU, a difference arises between the Commission and the Member State concerned as to whether national legislation or a national practice which the Court of Justice has not examined beforehand is appropriate for ensuring compliance with that judgment, the Commission cannot, by adopting a decision, resolve such a difference itself and draw from this the necessary inferences for the calculation of the penalty payment.

While it is true that, when enforcing a judgment of the Court of Justice imposing a penalty payment on a Member State, the Commission must be able to assess whether the measures adopted by that Member State enable it to comply with the judgment establishing an infringement, nonetheless that power of appraisal cannot be exercised in a manner which is prejudicial to the exclusive jurisdiction of the Court of Justice to rule on the compliance of national legislation with EU law. Since, according to the system established by Articles 258 TFEU to 260 TFEU, the rights and duties of Member States may be determined and their conduct appraised only by a judgment of the Court of Justice, the Commission’s review of the measures adopted by a Member State for the purpose of complying with a judgment of the Court of Justice and the recovery of sums owed pursuant to the penalties imposed must be carried out having regard to the scope of the failure to fulfil obligations, as defined by the Court of Justice in its judgments delivered pursuant to Articles 258 TFEU and 260 TFEU.

Moreover, allowing the Commission a greater margin of discretion as regards the assessment of measures designed to ensure compliance with a judgment delivered pursuant to Article 260(2) TFEU would lead to a breach of the procedural rights of defence available to the Member States in infringement proceedings. In accordance with Articles 258 TFEU to 260 TFEU, Member States which, in the view of the Commission, have not fulfilled their obligations under EU law are entitled, inter alia, to set out their position at a pre-litigation stage. The purpose of that stage of the procedure is to give the Member State concerned the opportunity to comply with its obligations or to present its case properly against the complaints set out by the Commission as regards its continued failure to fulfil its obligations.

(see paras 41, 47-49, 52, 55, 56)