Keywords

Summary



Keywords

1. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Breach of the obligation to comply with the judgment – Pecuniary penalties – Lump sum

(Art. 228 EC)

2. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Breach of the obligation to comply with the judgment – Pecuniary penalties

(Art. 228 EC)

3. Member States – Obligations – Failure to fulfil obligations – National system pleaded as justification – Not permissible

(Art. 228 EC)

4. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Period for implementation

(Art. 228 EC)

5. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Breach of the obligation to comply with the judgment – Breach of the fundamental principle of freedom of establishment

(Art. 228 CE)

Summary

1. In order to ensure that a judgment which previously established a breach is complied with as swiftly as possible and to prevent similar infringements of Community law from recurring, the imposition of a lump sum payment must, in each individual case, depend on all the relevant factors pertaining to both the particular nature of the infringement established and the individual conduct of the Member State involved in the procedure instigated pursuant to Article 228 EC.

If the Court decides to impose a lump sum payment, it must, in exercising its discretion, do so in a manner that is, on the one hand, appropriate to the circumstances and, on the other, proportionate both to the breach that has been established and the ability to pay of the Member State concerned.

Consequently, for the purpose of giving a decision on the request that the defendant be ordered to pay a lump sum, account must be taken of all the circumstances of this case, and, in particular, of the conduct of the Member State concerned and the duration and seriousness of the infringement.

With regard to the amount of the lump sum payment, it is appropriate to have regard, in addition to the abovementioned circumstances, to additional elements, such as the fact that the Member State concerned has put an end to the infringement found by the judgment and that it complied fully with the requirements of that judgment.

(see paras 44, 46-48, 58-60)

2. 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 Community law from recurring.

While the imposition of a penalty payment seems particularly suitable for the purpose of 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 prompted more by the assessment of the consequences for private and public interests of the failure by the Member State concerned to comply with its obligations, in particular where the breach has persisted for a long period since the judgment initially establishing it was delivered.

(see paras 45-46)

3. A Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under Community law.

(see para. 50)

4. Although Article 228 EC does not specify the period within which a judgment must be complied with, nevertheless the action required to give effect to a judgment must be set in motion immediately and be completed as soon as possible.

(see para. 51)

5. Where the Court considered, in an action for failure to fulfil obligations, that the legislation in question was in breach of the fundamental principle set out in Article 43 EC by permitting companies or firms established in other Member States to establish and operate opticians’ shops only if the majority of the members were opticians or, as the case might be, the holders of more than half of the share capital were opticians, and almost 37 months elapsed between the date of delivery of the judgment and the date on which the Member State concerned brought its legislation fully into line with that judgment, it must be held that the infringement alleged against that Member State persisted for a significant period of time, particularly when account is taken of the fact that full compliance with the judgment was hardly a complex matter, and that that infringement justifies imposition of a lump sum payment under Article 228(1) EC.

(see paras 52-53, 55, operative part 1-2)