39

In the judgment of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127), the General Court relied on the following preliminary considerations: ‘57 It should be noted that, under the terms of Article 226 EC, where the Commission considers that a Member State has failed to fulfil obligations under the EC Treaty, it is to deliver a reasoned opinion after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice. 58 It is settled case-law that the Commission is not empowered to determine conclusively, by opinions formulated pursuant to Article 226 EC or by other statements of its attitude under that procedure, the rights and duties of a Member State, or to give it guarantees concerning the compatibility of a given line of conduct with the Treaty and that, according to Articles 226 EC to 228 EC, the rights and duties of Member States may be determined and their conduct appraised only by a judgment of the Court of Justice (Joined Cases 142/80 and 143/80 Essevi and Salengo [1981] ECR 1413, paragraph 16, and Case C‑393/98 Gomes Valente [2001] ECR I‑1327, paragraph 18). 59 Furthermore, under Article 28(2) EC, the Court of Justice may, when an action is brought before it by the Commission after the latter has issued a reasoned opinion that the Member State concerned has not complied with, impose a lump sum or penalty payment on it if it finds that the Member State has not complied with its judgment. 60 The procedure laid down in Article 228(2) EC must be regarded as a special judicial procedure for the enforcement of judgments, in other words as a method of enforcement (Case C‑304/02 Commission v France [2005] ECR I-6263, paragraph 92). 61 It should be noted, however, that the EC Treaty does not lay down the detailed rules for the enforcement of the judgment that the Court delivers at the conclusion of that new procedure, in particular where a penalty payment is decided on. 62 Nevertheless, where a judgment of the Court of Justice, delivered pursuant to Article 228(2) EC, orders a Member State to pay a penalty payment to the Commission, into the account “European Community own resources”, and since, under Article 274 EC, the Commission implements the budget, the latter is responsible for recovering the amounts that would be due to the budget of the European Union pursuant to the judgment, in accordance with the provisions of the regulations made under Article 279 EC. 63 The EC Treaty does not make any specific provision, however, regarding the settlement of disputes that would arise between a Member State and the Commission on that occasion. 64 It follows that the remedies established by the EC Treaty apply and that the decision, by which the Commission determines the amount due from the Member State in terms of the penalty payment which it has been ordered to make, can be the subject of an action for annulment pursuant to Article 230 EC. 65 Therefore, the General Court has jurisdiction to hear and determine such an action, in accordance with the provisions of the first subparagraph of Article 225(1) EC. 66 However, in exercising such jurisdiction, the General Court cannot impinge on the exclusive jurisdiction reserved to the Court of Justice under Articles 226 EC and 228 EC. 67 The General Court may not rule, therefore, in the context of an action for annulment based on Article 230 EC and brought against a decision of the Commission relating to the enforcement of a Court of Justice judgment delivered on the basis of Article 228(2) EC, on a question relating to the infringement by the Member State of its obligations under the EC Treaty that has not been previously decided by the Court of Justice.’