OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 25 February 2016 ( 1 )

Case C‑557/14

European Commission

v

Portuguese Republic

‛Failure of a Member State to fulfil obligations — Article 260 TFEU — Failure to comply with a judgment of the Court of Justice — Judgment in Commission v Portugal (C‑530/07, EU:C:2009:292) — Directive 91/271/EEC — Urban waste water treatment — Financial penalties — Imposition of a penalty payment and a lump sum payment — Gradual reduction of the penalty payment’

I – Introduction

1. The present case is based on an action brought by the European Commission against the Portuguese Republic under Article 260 TFEU for allegedly failing to comply in full with the judgment in Commission v Portugal (C‑530/07, EU:C:2009:292). In that judgment, the Court declared that Portugal had failed to fulfil its obligations under Directive 91/271/EEC ( 2 ) (‘the Waste Water Directive’), since, contrary to the requirements of the directive, the waste water from several Portuguese agglomerations was not subjected to any appropriate treatment. Although Portugal itself no longer questions the fact that the judgment is still to be complied with in full on account of the uncompleted plants in one agglomeration, the views of the two parties to the proceedings nevertheless diverge strongly as regards the financial penalties which should therefore be imposed.

II – Legal framework

2. As stated by Article 1 of the directive, the Waste Water Directive governs inter alia the collection, treatment and discharge of urban waste water and its objective is to protect the environment from the adverse effects of those waste water discharges.

3. Under Article 3(1) of the Waste Water Directive, Member States are to ensure that agglomerations with a population equivalent of more than 15000 are provided with collecting systems for urban waste water by 31 December 2000 at the latest.

4. Under Article 4(1) of the Waste Water Directive, Member States are to ensure, by 31 December 2000 at the latest, that, for all discharges from agglomerations of more than 15000 population equivalent, urban waste water entering collecting systems is subject before discharge to ‘secondary treatment or an equivalent treatment’, that is, to a more intensive treatment.

5. Subject to certain conditions, Article 6(2) of the Waste Water Directive allows a derogation from Article 4(1) where waste water is discharged to areas which have been identified as less sensitive: ‘Urban waste water discharges from agglomerations of between 10000 and 150000 [population equivalent] to coastal waters … situated in areas described in paragraph 1 may be subjected to treatment less stringent than that prescribed in Article 4 providing that: — such discharges receive at least primary treatment as defined in Article 2(7) in conformity with the control procedures laid down in Annex I D, — comprehensive studies indicate that such discharges will not adversely affect the environment. — …’

6. A derogation in relation to even larger agglomerations is possible under Article 8(5) of the Waste Water Directive: ‘In exceptional circumstances, when it can be demonstrated that more advanced treatment will not produce any environmental benefits, discharges into less sensitive areas of waste waters from agglomerations of more than 150000 [population equivalent] may be subject to the treatment provided for in Article 6 for waste water from agglomerations of between 10000 and 150000 [population equivalent]. In such circumstances, Member States shall submit beforehand the relevant documentation to the Commission. The Commission shall examine the case and take appropriate measures in accordance with the regulatory procedure laid down in Article 18(2).’

III – Background to the case and procedure before the Court

7. On 7 May 2009, in its judgment in Commission v Portugal (EU:C:2009:292), the Court declared that, by failing to provide, in accordance with the provisions of Article 3 of the Waste Water Directive, seven agglomerations with collection systems, and by failing to subject to secondary treatment or an equivalent treatment, in accordance with Article 4 of that directive, the urban waste water from 15 agglomerations, including Matosinhos and Vila Real de Santo António, agglomerations with 287000 and 116500 population equivalents respectively, the Portuguese Republic had failed to fulfil its obligations under Articles 3 and 4 of the directive.

8. By letter of 18 June 2009, the Commission asked Portugal to comment on its compliance with that judgment. After several exchanges of letters, on 21 February 2014, pursuant to Article 260(2) TFEU, it formally invited the Portuguese Government to submit observations and prescribed a period of two months for compliance. Since, in the Commission’s view, the reply showed that Portugal still had not complied fully with the judgment, on 4 December 2014 it brought an action before the Court of Justice.

9. The Commission claims that the Court should: — declare that, by failing to adopt the necessary measures to comply with the judgment of 7 May 2009 in Case C‑530/07 Commission v Portugal, the Portuguese Republic has failed to fulfil its obligations under Article 260(1) TFEU; — order the Portuguese Republic to pay a penalty payment in the amount of EUR 20196 per day of delay in complying with the judgment delivered in Case C‑530/07, referred to above, from the date of delivery of the judgment in the present case until the date of compliance with the judgment delivered in Case C‑530/07; — order the Portuguese Republic to pay a lump sum of EUR 2244 per day from the date on which the judgment was delivered in Case C‑530/07 until the date of delivery of the judgment in the present case, or until the date of compliance with the judgment in Case C‑530/07, if that date is earlier; — order the Portuguese Republic to pay the costs.

10. The Portuguese Republic contends that the Court should: — dismiss the action as unfounded, in so far as it contests it; — order the Commission to pay the costs.

11. The parties have submitted written observations and, on 21 January 2016, presented oral argument.

IV – Legal assessment

A – Treaty infringement

12. If a Member State has been found by a judgment of the Court of Justice to have failed to fulfil an obligation under EU law, that State is required, pursuant to Article 260(1) TFEU, to take the necessary measures to comply with the judgment of the Court. If the Commission considers that the Member State concerned has not taken all those measures, it may, pursuant to Article 260(2) TFEU, bring the case before the Court after giving that State the opportunity to submit its observations.

13. The Commission has brought the present action for failure to fulfil obligations on that basis. Consequently, in order to establish whether Portugal has taken all the necessary measures to comply with the judgment in Commission v Portugal (EU:C:2009:292), it must be examined whether the agglomerations mentioned in that judgment have been provided with collecting systems for urban waste water in accordance with Article 3 of the Waste Water Directive and/or that their urban waste water has been subjected to secondary treatment or an equivalent treatment in accordance with Article 4.

14. The reference date for assessing whether there has been a failure to fulfil obligations under Article 260(2) TFEU is the date of expiry of the period prescribed in the invitation to submit observations sent under that provision. ( 3 )

15. The Commission’s invitation to the Portuguese Government dates from 21 February 2014 and specified a period of two months. The reference date for assessing whether there has been a failure to fulfil obligations is therefore 21 April 2014.

16. In that letter, the Commission’s only remaining complaint was that the urban waste water discharges from the agglomerations of Vila Real de Santo António and Matosinhos were still not being subjected to secondary treatment or an equivalent treatment in accordance with Article 4 of the Waste Water Directive.

17. In their letter in reply of 23 April 2014, Portugal’s representatives confirmed that the necessary works in the agglomeration of Vila Real de Santo António had not yet been completed and those in the agglomeration of Matosinhos had not yet been started.

18. Consequently, on the reference date, 21 April 2014, Portugal had not taken all the necessary measures to treat the urban waste water discharges from the two abovementioned agglomerations in accordance with the requirements of Article 4 of the Waste Water Directive.

19. It must therefore be declared that, by failing to take all the necessary measures to comply with the judgment in Commission v Portugal (EU:C:2009:292) by 21 April 2014, the Portuguese Republic has failed to fulfil its obligations under Article 260(1) TFEU.

B – Financial penalties

20. The procedure under Article 260(2) TFEU is aimed at inducing a defaulting Member State to comply with the original judgment establishing a failure to fulfil obligations. It is thus aimed at ensuring that EU law is in fact applied. The measures provided for by that provision, namely a lump sum and a penalty payment, are both intended to achieve this objective. ( 4 )

21. It is for the Court, in each case, in the light of the circumstances of the case before it and the degree of persuasion and deterrence which appears to it to be required, to determine the financial penalties appropriate for making sure that the judgment which previously established the breach is complied with as swiftly as possible and preventing similar infringements of EU law from recurring. ( 5 )

22. The Commission’s proposals in that regard cannot bind the Court and merely constitute a useful point of reference. Similarly, guidelines such as those contained in the Commission’s communications are not binding on the Court but contribute to ensuring that the action taken by that institution is transparent, foreseeable and consistent with legal certainty. ( 6 )

1. Penalty payment

23. The imposition of a penalty payment pursuant to Article 260(2) TFEU is, in principle, justified only in so far as the failure to fulfil a Treaty obligation, arising from the failure to comply with an earlier judgment of the Court, persists. ( 7 )

24. The fact that Portugal had not yet complied fully with the judgment in Commission v Portugal (EU:C:2009:292) on the date of expiry of the period prescribed by the Commission is not, therefore, sufficient on its own to justify a penalty payment. It must further be examined whether the judgment still requires further compliance at the time of the Court’s decision.

25. In order to decide whether a penalty payment should be imposed, it is first necessary to examine the extent to which the infringements still persist (see (a) below). It is then necessary to determine the basic amount of the payment (see (b) below) and to examine whether the penalty payment is to be imposed as a set amount or such that it is to decrease in line with compliance with the judgment (see (c) below).

a) Continued existence of the infringements

i) Agglomeration of Vila Real de Santo António

26. In its rejoinder, Portugal states that the remainder of the necessary works to subject the waste water discharges from the agglomeration of Vila Real de Santo António to secondary treatment were completed in April 2015. With regard to that agglomeration, the judgment in Commission v Portugal (EU:C:2009:292) has therefore, in the meantime, been complied with in full. ( 8 )

27. At the hearing, however, the Commission expressed the view that a Member State has only implemented Article 4 of the Waste Water Directive once regular sampling of the treated waste water before discharge to receiving waters over a period of one year has shown that the secondary treatment satisfies the requirements of the directive. There was no sampling in this case.

28. The Commission relies in this regard on Annex I D(3) of the Waste Water Directive, under which a certain minimum number of regular samples, to be determined according to the size of the plant, must be taken. In accordance with the first indent of Article 15, these are intended to verify compliance with the requirements of Annex I B, that is, ultimately, the effectiveness of the waste water treatment.

29. However, it must not be inferred from the Waste Water Directive that the implementation of Article 4 in relation to a specific treatment plant is at all conditional upon sampling. Rather, the duty to undertake regular sampling exists independently alongside the duty to carry out effective secondary treatment.

30. Accordingly, the relevant judgments are to be understood to the effect that sampling constitutes appropriate evidence that a treatment plant satisfies the requirements of the Waste Water Directive. ( 9 ) The judgment in Commission v Italy could, moreover, be understood to the effect that a certain minimum number of samples is necessary to constitute that evidence. ( 10 ) In the judgment in Commission v Greece, however, the Court complained only that the absence of regular samples during a three-month period between completion of a treatment plant and the hearing made it impossible to verify the effectiveness of the waste water treatment. ( 11 ) And in the most recent judgment in Commission v Portugal, it expressly found that a single sample is sufficient to prove compliance with Article 4. ( 12 )

31. The Commission could contest such evidence. In particular, that could be the case where there are subsequent samples which do not satisfy the requirements of the Waste Water Directive or where there are no regular samples following an initial successful sampling. It could also argue that the sample was taken under conditions which are not representative of the pollution load of the waste water.

32. In the present case, Portugal has claimed without being contradicted that the Commission was sent samples for the period to November 2015 which showed the effectiveness of the secondary treatment.

33. The Commission has not cast doubt on that claim. In essence, it has withdrawn to the position that only sampling over a year is sufficient because only that period is sufficiently representative.

34. However, it is not apparent why samples from April to November in one place in the Algarve should not be representative. As the Commission itself has stated, it is there during the tourist season that the highest waste water pollution loads are to be expected. However, the tourist season is covered by the sampling period.

35. It must therefore be assumed that, in the agglomeration of Vila Real de Santo António, a situation in conformity with the directive has been achieved in the meantime. Consequently, to that extent, there is no longer any need for a penalty payment.

ii) Agglomeration of Matosinhos

36. According to Portugal, construction of the necessary plants for secondary treatment of the urban waste water in the agglomeration of Matosinhos has not taken place up to now because of financing problems. ( 13 ) In its rejoinder, Portugal claims that the conditions for construction have in the meantime been satisfied. ( 14 ) In this context, it has submitted a timetable for the construction works which, according to that timetable, are due to start in the first half of 2016. The plant is expected to be brought fully into operation in the second half of 2019. ( 15 )

37. It thus follows from Portugal’s own submissions that the judgment in Commission v Portugal (EU:C:2009:292) had not yet been complied with even on the date of hearing. In those circumstances, the imposition of a penalty payment on Portugal constitutes an appropriate financial means by which to ensure cessation of the infringement established and full compliance with the judgment. ( 16 )

b) Basic amount of the penalty payment

38. It is for the Court to set the penalty at a level appropriate to the circumstances and proportionate to the infringement and to the Member State’s ability to pay. ( 17 )

39. In the assessment carried out by the Court, the basic criteria which must be taken into account in order to ensure that penalty payments have coercive force and Union law is applied uniformly and effectively are, in principle, the duration of the infringement, its degree of seriousness and the ability of the Member State concerned to pay. In applying those criteria, the Court is required to have regard, in particular, to the effects on public and private interests of failure to comply and to the urgency for the Member State concerned to fulfil its obligations. ( 18 )

40. The Commission requests the imposition, until the judgment in Commission v Portugal (EU:C:2009:292) is complied with in full, of a daily penalty payment calculated as follows: the flat-rate amount, identical for all Member States, of the penalty payment of EUR 660 per day to be multiplied by a coefficient for seriousness set at 3 (on a scale of 1 to 20), a coefficient for duration of 3 (on a scale of 1 to 3) and an ‘n’ factor reflecting Portugal’s ability to pay, namely 3.40. That results in an amount of EUR 20196.00 per day.

41. Although it is true that, when imposing financial penalties, the Court does not quantify individual coefficients, they are nevertheless a helpful method of rendering the calculation of penalties comprehensible. The Commission’s proposal must therefore be examined in greater detail below.

i) Taking into account of Portugal’s ability to pay

42. According to the Court’s case-law, it is necessary to take account of the current trends in a Member State’s GDP at the time of the Court’s examination of the facts. ( 19 ) Reference should therefore be made to the updated data published by the Commission in its Communication of 5 August 2015. ( 20 ) Consequently, the ‘n’ factor for Portugal’s ability to pay must be quantified as 3.35. On the other hand, the standard flat-rate amount must now be set at EUR 670.

ii) Duration of the infringement

43. The duration of the infringement must be assessed by reference to the time when the Court assesses the facts. On the other hand, the time when the case is brought before it by the Commission is not relevant. ( 21 )

44. The Commission takes the view that, in the light of the time which has elapsed since the date of delivery of the judgment in Commission v Portugal (EU:C:2009:292), namely just under seven years, the maximum coefficient, with the value of 3, should be applied for the purpose of taking into account the duration of the infringement.

45. This is supported by the fact that, although Article 260(1) TFEU does not specify a period within which a judgment must be complied with, in accordance with the Court’s case-law that process must nevertheless be initiated at once and completed as soon as possible. ( 22 )

46. To that effect, in two judgments which were also given in connection with defects in the implementation of the Waste Water Directive, the Court regarded a duration of almost eight years as ‘considerable’ ( 23 ) and a duration of approximately nine years as ‘excessive’. ( 24 ) And it reached that assessment even while recognising that the tasks to be carried out required a significant period of several years and that compliance with the original judgment was to be regarded as almost complete. ( 25 ) In another case concerning that directive, it held that five years was ‘more than sufficient’ time in which to comply fully with the judgment. ( 26 )

47. More recent Court judgments in other areas are also in line with that finding. Thus, in a judgment given recently concerning the implementation of directives in the field of waste management, it described a duration of seven years as ‘considerable’. ( 27 ) In connection with the recovery of State aid granted contrary to EU law, the Court holds that even a duration of three years constitutes a significant period. ( 28 )

48. By contrast, I am not convinced by Portugal’s argument that the application of a coefficient for duration of 3 would be appropriate if the judgment in Commission v Portugal (EU:C:2009:292) still needed to be complied with in its entirety, and that, consequently, in view of the level of compliance with the judgment of more than 90%, the coefficient should not exceed 1. ( 29 )

49. The Commission is in fact correct to point out that Portugal is here confusing the criterion of duration of the infringement with that of seriousness. ( 30 ) The degree of compliance with the original judgment is taken into account in the assessment of the seriousness of the infringement.

50. In summary, a coefficient for duration of 3 therefore appears appropriate.

iii) Seriousness of the infringement

51. Finally, the seriousness of the infringement must be assessed. In this respect, the views of the two parties to the proceedings are particularly far apart.

52. The Commission bases its proposal of setting a coefficient for seriousness with the value of 3 out of 20 on two core arguments.

53. Firstly, it refers to the meaning of the provisions of EU law infringed by Portugal. It is apparent from the provisions of the Waste Water Directive that the discharge of untreated urban waste water to receiving waters causes pollution which significantly affects the quality of such waters and the ecosystems associated with them. The collection and treatment of all urban waste water from agglomerations with population equivalents of over 15000 is therefore of decisive importance for the quality of receiving waters, ecosystems and also in terms of the full and proper application of other directives. ( 31 )

54. Secondly, the Commission refers to the consequences of the infringement both for general welfare and also for the interests of individuals. Thus, protection of the environment and of human health are in the public interest. However, the incomplete compliance with the judgment in Commission v Portugal (EU:C:2009:292) carries a high risk for that interest. The restricted ability of citizens to use clean water and, connected with that, to pursue leisure activities, may also affect the tourism sector. ( 32 )

55. The Commission’s view is supported by the fact that — as the Court itself has already made clear — failure to comply with the obligation under Article 4 of the Waste Water Directive to subject urban waste water to secondary treatment could, by the very nature of that obligation, endanger human health and harm the environment and must in principle, for that reason alone, be regarded as particularly serious. ( 33 )

56. To that effect, the Court has also already held that, where failure to comply with a judgment of the Court is likely to harm the environment, the protection of which is one of the European Union’s policy objectives under Article 191 TFEU, such a breach is of a particularly serious nature. ( 34 )

57. However, Portugal vehemently contests the Commission’s claim as regards the agglomeration of Matosinhos. It refers to the fact that the agglomeration’s urban waste water is already subjected to primary treatment and that the quality of the receiving waters and associated ecosystems gives no cause for complaint. ( 35 ) Moreover, it denies the consequences for the health of local residents alleged by the Commission. ( 36 ) In the light of the near-complete compliance with the judgment in Commission v Portugal (EU:C:2009:292), the coefficient for seriousness cannot be put at any value higher than 1. ( 37 )

58. In this context, Portugal relies on two arguments. First, the agglomeration of Matosinhos satisfies the conditions laid down in the Waste Water Directive, according to which secondary treatment of urban waste water may be omitted. Second, the receiving waters of Matosinhos are of outstanding quality and the Commission’s fears with regard to the consequences for the environment and health are unfounded.

– Requirement of secondary treatment

59. In regard to the first point, Portugal contends that the primary treated waste water from the agglomeration of Matosinhos is discharged, not to lake or river waters, but to extremely choppy seawater with a high salt content. In those circumstances, the conditions laid down in Article 8(5), which provide for the possibility of applying less stringent rules, are satisfied. ( 38 ) In the Council minutes on the adoption of the Waste Water Directive, the Commission itself stated that that provision applied to Portugal. ( 39 )

60. This argument fails to convince, simply because, in terms of its content, the application of Article 8(5) of the Waste Water Directive presupposes compliance with a specific procedure. The Member State concerned must submit to the Commission the necessary documentation on which the Commission then takes a decision. However, as the Commission submits, without being contradicted, Portugal itself, in 1999, did in fact request application of the provision in question to the agglomeration of Matosinhos, but subsequently withdrew that request. ( 40 )

61. However, it must be acknowledged that, against the background of the particular conditions near Matosinhos, on account of which the application of Article 8(5) of the Waste Water Directive cannot automatically be ruled out, a less adverse effect on the environment is to be expected than in other places.

– Quality of the receiving waters in Matsinhos

62. Moreover, Portugal contends that a reduction of, on average, 42 to 43% in the chemical and biochemical oxygen demand is being achieved with the existing primary treatment of the waste water, which corresponds to more than double the value of 20% required under the Waste Water Directive. ( 41 ) Moreover, the primary treated urban waste water from the agglomeration of Matosinhos is discharged into the sea via an underwater outfall more than 2 km offshore, as a result of which the quality of the coastal waters is not affected. ( 42 ) Portugal further refers to analyses of the bathing water in Matosinhos, which are carried out regularly and which confirm their excellent quality. ( 43 ) In those circumstances, there are no grounds for assuming that there has been a danger to the health of the local residents or the tourism sector. ( 44 ) On the contrary, objectively speaking, even more stringent treatment of the urban waste water would have no significant implications for the environment. ( 45 )

63. So far as the reduction in the chemical and biochemical oxygen demand put forward by Portugal is concerned, a 20% reduction corresponds to the requirements of the Waste Water Directive in respect of primary treatment of waste water. However, for secondary treatment, the directive specifies as target values a reduction of at least 75% in the chemical oxygen demand and of 70 to 90% in the biochemical oxygen demand. Those values are still not being achieved.

64. Moreover, it is, admittedly, apparent from the data produced by Portugal that the bathing water quality at most of Matosinhos’s stretches of beach is classified as ‘excellent’. Nevertheless, the water quality at the ‘Azul-Conchinha’ stretch, where, according to the unchallenged statements of the Commission, the primary treated waste water is discharged into the sea, is rated only ‘sufficient’, and that at the ‘Matosinhos’ stretch, which is located nearest to the urban area of Matosinhos, is rated only ‘good’. Thus it is true that, for the purposes of Directive 2006/7/EC on bathing water quality, ( 46 ) those beaches are still usable, but the failure to achieve an ‘excellent’ quality rating is nevertheless an indication that the inadequate treatment of the waste water is adversely affecting the water quality. In the immediate vicinity of the outfall, the effects are probably even appreciably worse.

65. In so far as Portugal refers, as the explanation for the decline in quality of both bathing waters, solely to short-term exceptional circumstances unconnected with the operation of the waste water treatment plant, this seems rather unconvincing, since those classifications at the abovementioned stretches of beach have already existed continuously since 2012. I must therefore concur with the Commission that there is obviously room for improvement. The provision of secondary treatment for the waste water may contribute to that improvement.

66. It must therefore be assumed that, while it is true that the failure to comply with the judgment in Commission v Portugal (EU:C:2009:292), does not give rise to any serious environmental damage, the environment and, in particular, the beaches near Matosinhos are nevertheless still being adversely affected.

– Further aggravating and mitigating circumstances

67. A further factor which must be regarded as aggravating is that, according to the timetable submitted by Portugal, full compliance with the judgment in Commission v Portugal (EU:C:2009:292) is expected only in 2019. That is therefore a delay of almost 20 years, since the obligation in question, to subject the urban waste water from the agglomeration of Matosinhos to secondary treatment, should have been fulfilled by 31 December 2000 at the latest. According to the case-law, the lengthy character of a failure to comply with EU law lends additional gravity to the infringement, ( 47 ) although that circumstance is already taken into account in the assessment of the coefficient for duration.

68. On the other hand, Portugal’s progress in implementing the Waste Water Directive, which is also acknowledged by the Commission, must be taken into account. ( 48 )

69. Thus, there is now only one agglomeration still to be brought into compliance with the judgment in Commission v Portugal (EU:C:2009:292). That is significantly fewer than the number of agglomerations originally covered by that judgment, namely 22. Expressed in population equivalents, as compared with the original 3243600 population equivalents, 287000 population equivalents still remain to be brought into conformity with the directive. This represents a degree of implementation of more than 90%. Accordingly, Portugal has considerably reduced the further adverse effects on human health and the environment resulting from the infringement established by the judgment in Commission v Portugal (EU:C:2009:292).

70. In the light of the foregoing considerations, a coefficient for seriousness of 1.5 should therefore be applied.

iv) Interim conclusion

71. On the basis of the flat-rate amount of EUR 670 per day and its multiplication by a coefficient for seriousness of 1.5, a coefficient for duration of 3 and the ‘n’ factor of 3.35, a daily penalty payment in the amount of EUR 10100.25 results. It seems reasonable to round that amount down to EUR 10000.

c) Possibility of a gradual reduction of the penalty payment

72. The Commission proposes that any progress made in the future by Portugal towards compliance with the judgment in Commission v Portugal (EU:C:2009:292) should be taken into account in setting the amount of the penalty payment, in such a way that the penalty payment decreases in line with the number of population equivalents brought into conformity with the directive.

73. Portugal also suggests a degressive penalty payment. However, it refers to the fact that, in the case of the agglomeration of Matosinhos, the alleged infringement is confined to making possible secondary treatment of the urban waste water. The progress of the relevant construction work must therefore be decisive for the gradual reduction of the penalty payment. ( 49 ) Portugal considers an approach along the lines of the Commission’s proposal to be neither implementable nor possible in the present case, since the urban waste water could be subjected to secondary treatment only after completion of the construction work. However, a gradual reduction of the affected population equivalents is not possible. ( 50 )

74. According to the Court’s case-law, in order to ensure full compliance with a judgment, the penalty payment must in principle be payable in its entirety until such time as the Member State has taken all the measures necessary to bring to an end the failure to fulfil obligations established. Nevertheless, in specific cases, a penalty which takes account of any progress that the Member State may have made in complying with its obligations may be envisaged. ( 51 ) This is in accordance with the principle of proportionality, since continuation of the full penalty payment irrespective of the progress made in complying with the first judgment would no longer be appropriate and would be disproportionate to the breach which has been found. ( 52 )

75. To that effect, the Court has already imposed degressive penalty payments on a number of occasions. The cases concerned, on the one hand, the quality of a large number of areas of bathing water, ( 53 ) the recovery of a large number of State aids under a national aid scheme ( 54 ) and the closure and cleaning up of illegal landfill sites. ( 55 ) On the other hand, it has also proceeded in this way in two cases which are structurally similar to the present case, since they also concerned the primary and/or secondary treatment of urban waste water. ( 56 )

76. Contrary to Portugal’s submissions, however, there can be no question of aligning the gradual reduction of the penalty payment to the progress on the construction of the secondary treatment plant for Matosinhos. Only when it is in fact ensured that additional population equivalents have actually been brought into conformity with the directive can further compliance with the judgment in Commission v Portugal (EU:C:2009:292) and compliance with the requirements of Article 4 of the Waste Water Directive be spoken of. The mere continuation of construction works, however good the progress made with them, still does not achieve any decrease in the environmental load; such a decrease can be expected only after the secondary treatment plant has been brought into operation. As the Court has already ruled in regard to Belgium and Greece, only a decrease in the population equivalents which are not in conformity with the directive can therefore be decisive for the reduction of the penalty payment. ( 57 ) In regard to Luxembourg, where two plants are still under construction, the Court has even rejected any reduction of the penalty payment before both plants are completed. ( 58 ) To grant Portugal a reduction of the penalty payment solely because of progress on construction would amount to preferential treatment vis-à-vis those other Member States.

77. Since Portugal itself states that a gradual increase in the population equivalents in conformity with the directive and thus a decrease in the environmental load is not possible in the case of the agglomeration of Matosinhos, an invariable penalty payment should therefore be imposed.

d) Interim conclusion

78. Consequently, the Portuguese Republic should be ordered to pay to the European Commission, into the ‘European Union own resources’ account, a daily penalty payment of EUR 10000 until the judgment in Commission v Portugal (EU:C:2009:292) has been complied with in full.

2. Lump sum payment

79. According to the Court’s case-law, a lump sum payment may be imposed in addition to a periodic penalty payment. ( 59 ) The decision whether to impose a lump sum payment must, in each individual case, depend on all the relevant factors pertaining both to the particular nature of the infringement established and to the individual conduct of the Member State involved in the procedure initiated pursuant to Article 260 TFEU. That provision confers in that regard a wide discretion upon the Court in deciding whether or not to impose such a penalty. ( 60 )

80. The Commission proposes that, when calculating the lump sum payment, a method should be applied which consists in multiplying the fixed flat-rate amount of EUR 220 per day by the coefficient for seriousness and the ‘n’ factor, the amounts of which correspond to the values proposed for the calculation of the periodic penalty payment, as well as by the number of days which have passed since the first judgment was delivered.

81. If those data are updated in line with my proposal for the periodic penalty payment to be imposed on Portugal, taking as a basis the flat-rate amount of EUR 220, the ‘n’ factor of 3.35 and the coefficient for seriousness of 1.5, ( 61 ) the result is a basic amount of EUR 1105,50. Based on the date of the reading of this Opinion, 2485 days after delivery of the judgment in Commission v Portugal (EU:C:2009:292), that gives a lump sum of EUR 2747167.50. If the judgment is delivered approximately three months after the Opinion, it would then be conceivable for a lump sum of EUR 2846662.50 to be imposed.

82. However, the appropriateness of that amount must be examined in still greater detail.

83. First, account must be taken of the aggravating factor that, although it is true that a state of conformity with the directive has in the meantime been established in the agglomeration of Vila Real de Santo António, in these proceedings an infringement can nevertheless be found to exist also in respect of that agglomeration. ( 62 )

84. In addition, according to the case-law, for the purpose of setting the lump sum payment, the ‘conduct’ of the Member State concerned must be taken into account. ( 63 )

85. In this context, it is also necessary to take into consideration the fact that the Commission complains that Portugal has seriously disregarded the timetables which it itself has submitted. ( 64 )

86. On the other hand, Portugal prides itself on the permanent cooperation which exists between its authorities and the Commission, and of the detailed information which its agencies have provided to the Commission.

87. Defects in the cooperation with the Commission are to be taken into account in the setting of the lump sum payment. ( 65 ) As is apparent from the documents in the file, following delivery of the judgment in Commission v Portugal (EU:C:2009:292), a lively exchange between the Commission and the Portuguese authorities took place. The Commission also does not complain about Portugal’s response as such. However, the Commission’s charge that Portugal repeatedly failed to keep to its own timetables is correct. Thus, completion of the waste water treatment plant for Matosinhos had been announced successively for December 2011, ( 66 ) April 2013, ( 67 ) December 2013 ( 68 ) and, finally, 2017. ( 69 ) According to the most recent schedule submitted by Portugal, the plant is now due to come into operation only in the second half of 2019. ( 70 ) Similarly, it was announced that the agglomeration of Vila Real de Santo António would be in conformity with the directive before the end of 2010. In fact, this was delayed until 2015.

88. Moreover, the Commission raises the high number of infringement proceedings against Portugal that have also led to Court judgments in the field of urban waste water treatment. This shows repeated unlawful conduct, and in a sector where the consequences for health and the environment are particularly significant. ( 71 )

89. According to the Court’s case-law, frequent occurrences of unlawful conduct on the part of a Member State in a specific sector may be an indication that effective prevention of future repetition of similar infringements of EU law requires the adoption of a dissuasive measure, such as a lump sum payment. ( 72 ) Indeed, in addition to the judgment in Commission v Portugal (EU:C:2009:292), Portugal has already been found guilty on three further occasions of failure to fulfil its obligations under the Waste Water Directive. ( 73 )

90. Against that background, I propose that a lump sum payment of EUR 3 million be imposed on the Portuguese Republic.

V – Costs

91. Under Article 138(1) 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.

92. The Commission has applied for costs and the Portuguese Republic’s failure to fulfil its obligations must be established. According to the case-law, that circumstance is sufficient for Portugal to be ordered to pay the costs, ( 74 ) even though the Commission has been unsuccessful in its pleadings to the extent that its application envisaged the imposition of higher penalty and lump sum payments.

VI – Conclusion

93. In the light of all the foregoing, I propose that the Court should: (1) declare that, by failing to adopt all the necessary measures to comply with the judgment in Commission v Portugal (C‑530/07, EU:C:2009:292) by 21 April 2014, when the period prescribed by the European Commission expired, the Portuguese Republic has failed to fulfil its obligations under Article 260(1) TFEU; (2) order the Portuguese Republic to pay to the European Commission, into the ‘European Union own resources’ account, a daily penalty payment of EUR 10000 until the judgment in Commission v Portugal (EU:C:2009:292) has been complied with in full; (3) order the Portuguese Republic to pay to the European Commission, into the ‘European Union own resources’ account, a lump sum of EUR 3 million; (4) order the Portuguese Republic to pay the costs.

( 1 ) Original language: German.

( 2 ) Council Directive of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p. 40), as amended by Commission Directive 98/15/EC of 27 February 1998 (OJ 1998 L 67, p. 29).

( 3 ) Judgments in Commission v Spain (C‑610/10, EU:C:2012:781, paragraph 67); Commission v CzechRepublic (C‑241/11, EU:C:2013:423, paragraph 23); Commission v Belgium (C‑533/11, EU:C:2013:659, paragraph 32); Commission v Greece (C‑378/13, EU:C:2014:2405, paragraph 27); and Commission v Greece (C‑167/14, EU:C:2015:684, paragraph 29).

( 4 ) Judgments in Commission v Greece (C‑369/07, EU:C:2009:428, paragraph 140) and Commission v Italy (C‑367/14, EU:C:2015:611, paragraph 85).

( 5 ) Judgments in Commission v Italy (C‑496/09, EU:C:2011:740, paragraph 36); Commission v Spain (C‑184/11, EU:C:2014:316, paragraph 58); Commission v Italy (C‑196/13, EU:C:2014:2407, paragraph 86); and Commission v Italy (C‑367/14, EU:C:2015:611, paragraph 86).

( 6 ) Judgments in Commission v Portugal (C‑70/06, EU:C:2008:3, paragraph 34); Commission v Greece (C‑369/07, EU:C:2009:428, paragraph 112); Commission v Italy (C‑496/09, EU:C:2011:740, paragraph 37); Commission v Belgium (C‑533/11, EU:C:2013:659, paragraph 64); and Commission v Italy (C‑367/14, EU:C:2015:611, paragraph 87).

( 7 ) Judgments in Commission v Greece (C‑369/07, EU:C:2009:428, paragraph 59); Commission v Italy (C‑496/09, EU:C:2011:740, paragraph 42); Commission v Luxembourg (C‑576/11, EU:C:2013:773, paragraph 43); Commission v Italy (C‑196/13, EU:C:2014:2407, paragraph 87); and Commission v Greece (C‑167/14, EU:C:2015:684, paragraph 47).

( 8 ) Points 18 and 22 of the rejoinder.

( 9 ) Judgments in Commission v Italy (C‑565/10, EU:C:2012:476, paragraphs 37 and 38); Commission v Greece (C‑167/14, EU:C:2015:684, paragraph 48); and Commission v Portugal (C‑398/14, EU:C:2016:61, paragraph 39).

( 10 ) Judgment in Commission v Italy (C‑565/10, EU:C:2012:476, paragraph 38).

( 11 ) Judgment in Commission v Greece (C‑167/14, EU:C:2015:684, paragraph 48).

( 12 ) Judgment in Commission v Portugal (C‑398/14, EU:C:2016:61, paragraph 39).

( 13 ) See the letter from the Portuguese authorities of 23 April 2014 sent in reply to the Commission’s letter of formal notice of 21 February 2014 (Annex A 11 to the application).

( 14 ) Point 31 of the rejoinder.

( 15 ) Point 32 of and Annex D2 to the rejoinder.

( 16 ) Judgments in Commission v Italy (C‑496/09, EU:C:2011:740, paragraph 45); Commission v Spain (C‑610/10, EU:C:2012:781, paragraph 114); Commission v Belgium, (C‑533/11, EU:C:2013:659, paragraph 66); Commission v Luxembourg (C‑576/11, EU:C:2013:773, paragraph 45); Commission v Italy (C‑196/13, EU:C:2014:2407, paragraph 94); and Commission v Greece (C‑167/14, EU:C:2015:684, paragraph 49).

( 17 ) Judgments in Commission v Belgium (C‑533/11, EU:C:2013:659, paragraph 68); Commission v Luxembourg (C‑576/11, EU:C:2013:773, paragraph 46); Commission v Greece (C‑378/13, EU:C:2014:2405, paragraph 52); Commission v Italy (C‑196/13, EU:C:2014:2407, paragraph 95); and Commission v Greece (C‑167/14, EU:C:2015:684, paragraph 52).

( 18 ) Judgments in Commission v Greece (C‑369/07, EU:C:2009:428, paragraphs 114 and 115); Commission v Italy (C‑496/09, EU:C:2011:740, paragraphs 56 and 57); Commission v Spain (C‑610/10, EU:C:2012:781, paragraphs 118 and 119); Commission v Belgium (C‑533/11, EU:C:2013:659, paragraph 69); Commission v Italy (C‑196/13, EU:C:2014:2407, paragraph 97); and Commission v Greece (C‑167/14, EU:C:2015:684, paragraph 54).

( 19 ) Judgments in Commission v Ireland, (C‑279/11 EU:C:2012:834, paragraph 78); Commission v Greece (C‑378/13, EU:C:2014:2405, paragraph 58); Commission v Italy (C‑196/13, EU:C:2014:2407, paragraph 104); and Commission v Greece (C‑167/14, EU:C:2015:684, paragraph 60).

( 20 ) C(2015) 5511 final.

( 21 ) Judgments in Commission v Portugal (C‑70/06, EU:C:2008:3, paragraph 45); Commission v Spain (C‑610/10, EU:C:2012:781, paragraph 120); Commission v Greece (C‑378/13, EU:C:2014:2405, paragraph 57); and Commission v Italy (C‑196/13, EU:C:2014:2407, paragraph 102).

( 22 ) Judgments in Commission v Spain (C‑278/01, EU:C:2003:635, paragraph 27); Commission v Ireland (C‑374/11, EU:C:2012:827, paragraph 21); Commission v Portugal (C‑76/13, EU:C:2014:2029, paragraph 57); and Commission v Italy (C‑367/14, EU:C:2015:611, paragraph 95).

( 23 ) Judgment in Commission v Greece (C‑167/14, EU:C:2015:684, paragraph 59).

( 24 ) Judgment in Commission v Belgium (C‑533/11, EU:C:2013:659, paragraph 54).

( 25 ) Judgment in Commission v Belgium (C‑533/11, EU:C:2013:659, paragraph 54).

( 26 ) Judgment in Commission v Luxembourg (C‑576/11, EU:C:2013:773, paragraph 52).

( 27 ) Judgment in Commission v Italy (C‑196/13, EU:C:2014:2407, paragraph 103).

( 28 ) Judgment in Commission v Italy (C‑367/14, EU:C:2015:611, paragraph 98).

( 29 ) See point 73 of the defence and point 59 of the rejoinder.

( 30 ) Point 46 of the reply.

( 31 ) See points 25 to 32 of the application.

( 32 ) See points 35 to 37 of the application.

( 33 ) Judgment in Commission v Greece (C‑167/14, EU:C:2015:684, paragraph 55).

( 34 ) Judgments in Commission v Ireland (C‑279/11, EU:C:2012:834, paragraph 72) and Commission v Belgium (C‑533/11, EU:C:2013:659, paragraph 56).

( 35 ) Points 21 and 23 of the defence.

( 36 ) Point 25 of the defence.

( 37 ) Point 71 of the defence.

( 38 ) Points 27 and 32 of the defence.

( 39 ) Point 29 of the defence.

( 40 ) See point 21 of, and Annex C 2 to, the reply.

( 41 ) Point 23 of the defence.

( 42 ) Point 33 of the defence.

( 43 ) See point 28 of the rejoinder and points 33 and 34 of the defence.

( 44 ) Point 34 of the defence.

( 45 ) Point 27 of the rejoinder.

( 46 ) Directive of the European Parliament and of the Council of 15 February 2006 concerning the management of bathing water quality and repealing Directive 76/160/EEC (OJ 2006 L 64, p. 37).

( 47 ) See judgment in Commission v Ireland (C‑374/11, EU:C:2012:827, paragraph 38).

( 48 ) See judgment in Commission v Greece (C‑167/14, EU:C:2015:684, paragraph 58).

( 49 ) Point 47 of the defence.

( 50 ) Point 41 et seq. of the rejoinder.

( 51 ) Judgments in Commission v Greece (C‑378/13, EU:C:2014:2405, paragraph 60); Commission v Italy (C‑196/13, EU:C:2014:2407, paragraph 106); and Commission v Greece (C‑167/14, EU:C:2015:684, paragraph 62). See also, to that effect, judgments in Commission v Spain (C‑278/01, EU:C:2003:635, paragraphs 43 to 51); Commission v Italy (C‑496/09 (EU:C:2011:740, paragraphs 47 to 55); and Commission v Belgium (C‑533/11, EU:C:2013:659, paragraph 73 et seq.).

( 52 ) Judgments in Commission v Spain (C‑278/01, EU:C:C2003:635, paragraph 48 et seq.) and Commission v Italy (C‑496/09, EU:C:2011:740, paragraph 49).

( 53 ) Judgment in Commission v Spain (C‑278/01, EU:C:2003:635).

( 54 ) Judgment in Commission v Italy (C‑496/09, EU:C:2011:740).

( 55 ) Judgments in Commission v Greece (C‑378/13, EU:C:2014:2405) and Commission v Italy (C‑196/13, EU:C:2014:2407).

( 56 ) Judgments in Commission v Belgium (C‑533/11, EU:C:2013:659) and Commission v Greece (C‑167/14, EU:C:2015:684).

( 57 ) See judgments in Commission v Belgium (C‑533/11, EU:C:2013:659, paragraph 73) and Commission v Greece (C‑167/14, EU:C:2015:684, paragraph 66).

( 58 ) Judgment in Commission v Luxembourg (C‑576/11, EU:C:2013:773).

( 59 ) Judgments in Commission v Greece (C‑369/07, EU:C:2009:428, paragraph 143); Commission v Spain (C‑610/10, EU:C:2012:781, paragraph 140); Commission v Greece (C‑378/13, EU:C:2014:2405, paragraph 71); Commission v Italy (C‑196/13, EU:C:2014:2407, paragraph 113); and Commission v Greece (C‑167/14, EU:C:2015:684, paragraph 72).

( 60 ) Judgments in Commission v Belgium (C‑533/11, EU:C:2013:659, paragraph 50 et seq.); Commission v Greece (C‑378/13, EU:C:2014:2405, paragraph 73); Commission v Italy (C‑196/13, EU:C:2014:2407, paragraph 114); and Commission v Greece (C‑167/14, EU:C:2015:684, paragraph 73).

( 61 ) See point 70 of this Opinion.

( 62 ) See points 17 and 19 of this Opinion.

( 63 ) See the references in footnote 60.

( 64 ) Point 45 of the application.

( 65 ) See judgment in Commission v Greece (C‑407/09, EU:C:2011:196, paragraph 33).

( 66 ) Letter of 16 February 2010, Annex A 4 to the application.

( 67 ) Letter of 6 October 2010, Annex A 5 to the application.

( 68 ) Letter of 12 December 2011, Annex A 7 to the application.

( 69 ) Letter of 23 April 2014, Annex A 11 to the application.

( 70 ) Point 32 of, and Annex D 2 to, the rejoinder.

( 71 ) Point 50 of the application.

( 72 ) Judgments in Commission v France (C‑121/07, EU:C:2008:695, paragraph 69); Commission v Italy (C‑496/09, EU:C:2011:740, paragraph 90); Commission v Spain (C‑184/11, EU:C:2014:316, paragraph 78); and Commission v Ireland (C‑279/11, EU:C:2012:834, paragraph 70).

( 73 ) Judgments in Commission v Portugal (C‑233/07, EU:C:2008:271); Commission v Portugal (C‑526/09, EU:C:2010:734); and Commission v Portugal (C‑220/10, EU:C:2011:558); and Commission v Portugal (C‑398/14, EU:C:2016:61).

( 74 ) Judgments in Commission v Greece (C‑378/13, EU:C:2014:2405, paragraph 81); Commission v Italy (C‑196/13, EU:C:2014:2407, paragraph 122); Commission v Sweden (C‑243/13, EU:C:2014:2413, paragraph 68); and Commission v Greece (C‑167/14, EU:C:2015:684, paragraph 81).