Case C-557/14: Action brought on 4 December 2014  — European Commission v Portuguese Republic
Date: 2014-12-04
Institutions: Court of Justice
Subjects: Portugal, action for failure to fulfil an obligation, ecosystem, enforcement of ruling, public health, unauthorised dumping, wastewater, water treatment








C_2015046EN.01002801.xml










9.2.2015   


EN


Official Journal of the European Union


C 46/28





Action brought on 4 December 2014 — European Commission v Portuguese Republic
(Case C-557/14)
(2015/C 046/35)
Language of the case: Portuguese

Parties


Applicant: European Commission (represented by: G. Braga da Cruz and E. Manhaeve, acting as Agents)

Defendant: Portuguese Republic

Form of order sought

The applicant claims that the Court of Justice should:






—


declare that, in failing to take the necessary measures to comply with the judgment of 7 May 2009 in Case C-530/07 Commission v Portuguese Republic
 (1), the defendant Member State 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 20  196 per day of delay in failing to comply 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 2  244 per day from the date the judgment was delivered in Case C-530/07 until the date of delivery of the judgment in the present proceedings, or until the date of compliance with the judgment in Case C-530/07 if such compliance occurs first;










—


order the Portuguese Republic to pay the costs of these proceedings.





Pleas in law and main arguments









I)




Determination of the fine
 The fine is to be determined on the basis of three criteria:










1.



Severity of the infringement The Commission proposes the application of a coefficient for seriousness of 3 on a scale of 1 to 20. In accordance with the Commission’s Communication on the application of Article 228 EC (‘the 2005 Communication’), the Commission calculates that coefficient taking account of the following:






a)



The importance of the rules of EU law which have been infringed It is apparent from Articles 1, 2, 3(1) and 4 of Council Directive 91/271/EEC concerning urban waste-water treatment (2) (‘Directive 91/271/EEC’), and Annex I thereto, that the disposal of untreated urban waste water into receiving waters causes pollution which has a significant impact on the quality of such waters and on the associated ecosystems. The collection and treatment of urban waste water from agglomerations with a population equivalent greater than 15  000 is of crucial importance in terms of the preservation and improvement of the quality of receiving waters and of aquatic and terrestrial ecosystems which depend directly on such water masses, and also in terms of ensuring full and correct compliance with other EU law directives.










b)



The consequences of that infringement for general and specific interests







—


The protection of the environment and of human health is of general interest. Incomplete compliance with the judgment of the Court of Justice in Case C-530/07 presents a serious risk in terms of pollution of the environment and has an impact on human health.










—


Incomplete compliance with that judgment also affects the implementation of other EU law directives and has a direct impact on the ability of citizens to enjoy unpolluted receiving waters, which they use for recreational activities, and could have an impact on the tourism sector and on related economic activities.














c)



Other aggravating and attenuating circumstances







—



Attenuating circumstances:







i)


The number of agglomerations with a population equivalent greater than 15  000 and which are not compliant with Article 4 of Directive 91/271/EEC went, as of the date of delivery of the judgment in accordance with Article 258 TFEU, from 15 to 2.










ii)


In relation to the agglomeration of Vila Real de Santo António, the new treatment plant has been operational since 2009 and only three zones of that agglomeration are still to be linked to the treatment plant; in so far as concerns Matosinhos, the current treatment plant enables the primary treatment of the waste water from that agglomeration. Such water in then disposed of in the sea, via an underwater outfall, more than 2 km off the coast.
According to the Portuguese authorities, this does not affect the good quality of the bathing waters.














—



Aggravating circumstances:







i)


Full compliance with the judgment cannot be demonstrated before 2018, even though the collection and treatment obligations in question in the present proceedings should have been fully satisfied by 31 December 2000, at the latest.










ii)


The provisions in question of Directive 91/271/EEC, which are the provisions infringed by the Portuguese Republic, set out clear obligations.










iii)


The successive time frames presented to the Commission by the Portuguese authorities were not adhered to and in a way which the Commission deems serious.










iv)


The high number of infringement proceedings brought against the Portuguese Republic, including in relation to judgments already delivered by the Court of Justice in the specific area of urban waste-water treatment, shows repetitive unlawful conduct, and this in a sector in which the repercussions on human health and the environment are particularly serious.






















2.



The duration of the infringement In the light of the time which has already passed since the date of delivery of the Court’s judgment, the Commission proposes that the maximum coefficient, namely 3, be applied in relation to the duration of the infringement.










3.



The need to ensure the deterrent effect of the fine As set out in the 2005 Communication, the deterrent effect is taken into consideration by an ‘n’ factor, which is an average based, on the one hand, on the GDP of the Member State at issue and, on the other, on the weighting of votes in the Council. The ‘n’ factor currently applicable to the Portuguese Republic is 3,40.




II)   
Calculation of the amount of the fine








a)



Penalty payment per day of delay







—


In accordance with the 2005 Communication, such penalty payments are calculated on the basis of the following formula:

Standard flat-rate amount x coefficient for seriousness x coefficient for duration x ‘n’ factor, which in this case gives the following: 660 x 3 x 3 x 3,40 = EUR 20  196 per day.










—


To ensure the progressive decrease in the penalty payment per day of delay, the Commission proposes that that the amount of the penalty payment per day of delay — in this case EUR 20  196 — be divided by the population equivalent in relation to which compliance with the judgment in Case C-530/07 has still not been ensured. In accordance with the most recent figures, the population equivalent which is yet to comply with Directive 91/271/EEC is 3 21  950. Consequently, the Commission proposes that the amount of the standard flat-rate amount (EUR 20  196 per day) be divided by 3 21  950.










—


The resulting sum of that division (20  196: 3 21  950), that is EUR 0,06 per day, is to be deducted from the standard flat-rate amount for each population equivalent which has complied in the meantime with the directive.














b)



Lump sum







—


The method of calculation of the daily amount used to determine the lump-sum fine is very similar to that for determining the daily rate of penalty payments. That method consists of multiplying a standard flat-rate amount by a coefficient for seriousness and multiplying the result obtained by a fixed factor per country (the ‘n’ factor), which factor indicates both the payment capacity of the Member State at issue and the number of votes allocated to that Member State in the Council.










—


However, for the lump sum the Commission will use a lower standard flat-rate than that applicable to penalty payments, since the conduct of the infringing Member State becomes more reprehensible once a judgment has been delivered in accordance with Article 260 TFEU, in so far as the infringement still continues in spite of two consecutive judgments of the Court of Justice. The standard flat-rate amount for the lump-sum fine is currently set at EUR 220 per day, and the Commission does not propose the application of a coefficient for duration in this respect.










—


Accordingly, account being taken of the standard flat-rate amount, the coefficient for severity and the ‘n’ factor, the daily rate for the determination of the lump-sum fine amounts to (220 x 3 x 3,40 =) EUR 2  244.














c)



Examination of the minimum lump sum







—


It is necessary to examine — bearing in mind the minimum lump sum established for the Member State in question — whether the Commission should propose a daily rate or a lump sum to the Court of Justice. To that effect, it is necessary to compare, on the one hand, the total cumulative value of the daily rate for the lump-sum fine, calculated until the date of the Commission’s decision (namely its decision to bring an action in accordance with Article 260 TFEU) and, on the other hand, the minimum lump sum determined for the Member State in question.










—


1987 days have passed since the date of delivery of the Court’s judgment (7 May 2009) and the date of the Commission’s decision to bring an action in accordance with Article 260 TFEU (16 October 2014). Consequently, on the date of the Commission’s decision referred to above the cumulative total of the daily rates for the calculation of the lump-sum fine is (EUR 2  244 x 1987 days =) EUR 4 4 58  828.










—


The minimum lump sum determined for Portugal is currently EUR 1 8 75  000.










—


Thus, since the total cumulative sum of the daily rates for the lump-sum fine as at 16 October 2014 exceeds the minimum lump sum determined for Portugal, the Commission proposes that that Member State be required to pay the daily rate of the lump-sum fine, that is to say EUR 2  244 per day starting from the date of delivery of the Court’s judgment in Case C-530/07 and until the date of delivery of the judgment in accordance with Article 260 TFEU, or until the date on which the Portuguese Republic complies with the first of the Court’s judgments, if that date is earlier.










(1)  EU:C:2009:292.

(2)  OJ 1991 L 135, p. 40.