Source: EURLEX
Language: en
Format: md

Provisional text

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 10 July 2025 ([1](#Footnote1))

**Case C**‑**554/24 P**

**Republic of Poland**

**v**

**European Commission**

( Appeal – Interim relief – Article 279 TFEU – Enforcement of an order of the Vice-President of the Court imposing interim measures – Determination of a daily penalty payment until the order is complied with – Failure of Poland to take the necessary measures – Settlement agreement – Removal of the case in the main proceedings from the register – Recovery of the periodic penalty payment – Ancillary nature of interim relief – Compensation for pecuniary damage resulting from interim measures )

  
  
  
  

I.      **Introduction**

1.        In the dispute relating to the protection of the Białowieża Forest, the Court inferred from Article 279 TFEU the power to impose periodic penalty payments for the purposes of implementing interim measures. ([2](#Footnote2)) However, to date, no experience of that instrument has been gained, nor have specific rules been laid down in that regard. The present case therefore gives the Court the opportunity to clarify the nature and consequences of the imposition of a periodic penalty payment in proceedings for interim relief.

2.        The dispute concerns the first set of proceedings in which the Court imposed a periodic penalty payment and in which that penalty payment was initiated (at least on a provisional basis). The Czech Republic disagreed with Poland about whether Poland had infringed Directive 2011/92/EU, ([3](#Footnote3)) Directive 2000/60/EC, ([4](#Footnote4)) Directive 2003/4/EC ([5](#Footnote5)) and the principle of sincere cooperation in connection with an extension of the development consent for the extraction of lignite at the Turów (Poland) open-cast mine. ([6](#Footnote6)) In those proceedings, the Vice-President of the Court, at the request of the Czech Republic, first ordered the immediate cessation of lignite extraction at the open-cast mine until the end of the legal dispute, ([7](#Footnote7)) and subsequently imposed a daily penalty payment to be paid by Poland until it complied with the first order. ([8](#Footnote8))

3.        However, after a total of EUR 68 500 000 in periodic penalty payments had been incurred, the Member States involved in the proceedings reached a settlement and the Court removed the case in the main proceedings from its register. ([9](#Footnote9)) Poland is now in dispute with the European Commission as to whether it must pay the aforementioned amount or whether that obligation has been discharged by the settlement agreement of the case and its removal from the register.

II.    **Legal framework**

4.        The legal basis for interim relief before the EU Courts is Article 279 TFEU:

‘The Court of Justice of the European Union may in any cases before it prescribe any necessary interim measures.’

5.        The fourth paragraph of Article 39 of the Statute of the Court of Justice of the European Union specifies the nature of interim measures:

‘The ruling of the President or of the Judge replacing him shall be provisional and shall in no way prejudice the decision of the Court on the substance of the case.’

6.        The settlement agreement of a dispute is provided for in Article 147(1) of the Rules of Procedure of the Court of Justice:

‘If, before the Court has given its decision, the parties reach a settlement of their dispute and inform the Court of the abandonment of their claims, the President shall order the case to be removed from the register and shall give a decision as to costs in accordance with Article 141, having regard to any proposals made by the parties on the matter.’

7.        The conditions for an interim measure may be inferred from Article 160(1) to (3) of the Rules of Procedure of the Court of Justice:

‘1.      An application to suspend the operation of any measure adopted by an institution, made pursuant to Article 278 TFEU or Article 157 TEAEC, shall be admissible only if the applicant has challenged that measure in an action before the Court.

2.      An application for the adoption of one of the other interim measures referred to in Article 279 TFEU shall be admissible only if it is made by a party to a case before the Court and relates to that case.

3.      An application [for interim relief] of a kind referred to in the preceding paragraphs shall state the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for.’

8.        Article 162(2) and (3) of the Rules of Procedure of the Court of Justice governs the fixing of a security and the duration of the interim measure:

‘2.      The execution of the order may be made conditional on the lodging by the applicant of security, of an amount and nature to be fixed in the light of the circumstances.

3.      Unless the order fixes the date on which the interim measure is to lapse, the measure shall lapse when the judgment which closes the proceedings is delivered.’

9.        Article 163 of the Rules of Procedure of the Court of Justice concerns a change in circumstances:

‘On application by a party, the order may at any time be varied or cancelled on account of a change in circumstances.’

III. **Background and procedure**

10.      The background to the dispute is set out as follows in the judgment under appeal.

A.      **Relevant developments in Case C**‑**121/21**

11.      On 26 February 2021, the Czech Republic brought an action under Article 259 TFEU for a declaration that the Republic of Poland had failed to fulfil its obligations under EU law as a result of the extension and continuation of lignite mining activities at the open-cast mine in Turów, located close to the borders of the Czech Republic and Germany (Case C‑121/21).

12.      At the same time, the Czech Republic brought an application for interim measures seeking an order, pending the judgment of the Court of Justice in the main action, that the Republic of Poland immediately cease lignite mining activities at the Turów mine.

13.      By order of 21 May 2021, *Czech Republic* v *Poland* (C‑121/21 R, EU:C:2021:420), the Vice-President of the Court granted that application and ordered the Republic of Poland to cease, immediately and pending delivery of the judgment closing the proceedings in Case C‑121/21, mining activities at that mine.

14.      Taking the view that the Republic of Poland had failed to fulfil its obligations under the order of 21 May 2021, *Czech Republic* v *Poland* (C‑121/21 R, EU:C:2021:420), on 7 June 2021 the Czech Republic brought a fresh application for interim measures asking the Court to order the Republic of Poland to pay a daily penalty payment of EUR 5 000 000 to the EU budget.

15.      By separate document lodged at the Registry of the Court of Justice on 29 June 2021, the Republic of Poland requested that the order of 21 May 2021, *Czech Republic* v *Poland* (C‑121/21 R, EU:C:2021:420), be cancelled, pursuant to Article 163 of the Rules of Procedure of the Court of Justice.

16.      By order of 20 September 2021, *Czech Republic* v *Poland* (C‑121/21 R, EU:C:2021:752), the Vice-President of the Court dismissed the Republic of Poland’s application seeking cancellation of the order of 21 May 2021, *Czech Republic* v *Poland* (C‑121/21 R, EU:C:2021:420), and ordered the Republic of Poland to pay the Commission a penalty of EUR 500 000 per day, from the date of notification of that order until the Republic of Poland complies with the order of 21 May 2021, *Czech Republic* v *Poland* (C‑121/21 R, EU:C:2021:420).

17.      The Republic of Poland has never complied with the order of 21 May 2021, *Czech Republic* v *Poland* (C‑121/21 R, EU:C:2021:420), but on 20 October 2021 again requested that that order be set aside.

18.      On 3 February 2022, the Czech Republic and the Republic of Poland concluded an agreement to end the dispute that gave rise to Case C‑121/21 (‘the settlement agreement’). According to media reports, the Republic of Poland undertook to pay the Czech Republic EUR 45 million and to erect a barrier to protect groundwater. ([10](#Footnote10))

19.      On 4 February 2022, the two Member States informed the Court that they were withdrawing all claims in Case C‑121/21 following the settlement agreement reached. On the same day, the Polish authorities asked the Commission to discontinue the procedure for enforcement of the periodic penalty payments ordered by the Court, enclosing with their request the text of the settlement agreement.

20.      By order of 4 February 2022, *Czech Republic* v *Poland (Turów mine)* (C‑121/21, EU:C:2022:82), the President of the Court removed Case C‑121/21 from the Court’s register.

21.      On the same day, the Republic of Poland lodged an application, pursuant to Article 163 of the Rules of Procedure of the Court of Justice, for cancellation of the order of 20 September 2021, *Czech Republic* v *Poland* (C‑121/21 R, EU:C:2021:752).

22.      By order of 19 May 2022, *Czech Republic* v *Poland (Turów mine)* (C‑121/21 R, EU:C:2022:408), the Vice-President of the Court declared that there was no longer any need to adjudicate on the Republic of Poland’s application for cancellation of the order of 21 May 2021, *Czech Republic* v *Poland* (C‑121/21 R, EU:C:2021:420), in so far as it concerned the effects of that order after 4 February 2022. He rejected the Republic of Poland’s applications as to the remainder.

B.      **Recovery of the penalty payment**

23.      The Commission subsequently issued the Republic of Poland with formal notice to pay the penalty payment incurred until Case C‑121/21 was removed from the register, together with default interest, and threatened to recover those sums by means of offsetting, in accordance with Article 101(1) and Article 102 of Regulation 2018/1046, ([11](#Footnote11)) in the event of non-payment.

24.      By the decisions at issue, the Commission informed Poland that it was offsetting its debt against various amounts owed to the Republic of Poland by the European Union. The principal sum thus recovered by means of offsetting amounts to EUR 68 500 000 and corresponds to the daily penalty payments payable for the period from 20 September 2021 to 3 February 2022.

C.      **Proceedings before the General Court**

25.      Before the General Court, the Republic of Poland requested that the decisions at issue be annulled and that the Commission be ordered to pay the costs. However, in the judgment under appeal of 29 May 2024, *Poland* v *Commission* (T‑200/22 and T‑314/22, EU:T:2024:329), the General Court dismissed the actions in accordance with the form of order sought by the Commission and ordered the Republic of Poland to pay the costs.

D.      **Appeal**

26.      By its appeal lodged on 14 August 2024, the Republic of Poland claims that the Court of Justice should:

–        annul the judgment under appeal in its entirety;

–        annul the decisions at issue;

–        order the Commission to pay the costs of the proceedings at first instance and on appeal.

27.      The Commission contends that the Court should:

–        dismiss the appeal as manifestly unfounded; and

–        order the Republic of Poland to pay the costs.

28.      The parties submitted written observations. In accordance with Article 76(2) of its Rules of Procedure, the Court decided not to hold a hearing because it considers that it has sufficient information to rule on the case.

IV.    **Legal assessment**

29.      By its appeal, the Republic of Poland first criticises the application of Article 279 TFEU by the General Court (Section A) and secondly alleges an inadequate statement of reasons in the judgment under appeal (Section B).

A.      **Article 279 TFEU**

30.      The first ground of appeal contains four parts relating to the interpretation of Article 279 TFEU as regards the consequences of a settlement agreement. It is argued that such a settlement must retroactively cancel the imposition of a periodic penalty payment since the interim relief is dependent on the case in the main proceedings (see Part 1 below). This is also necessary in order to prevent pecuniary damage to the addressees of interim measures (see Part 2 below). Otherwise, the periodic penalty payment would have the function of a sanction (see also Part 1). There is nothing in the order of 19 May 2022 to indicate otherwise (see Part 3 below).

1.      ***Ancillary nature of** **interim relief** **and** **lack of penalties***

31.      In the first part of the first ground of appeal, the Republic of Poland complains that, in paragraphs 42 and 47 of the judgment under appeal, the General Court misinterpreted the interim relief as being ancillary to the main proceedings. The third part of the first ground of appeal is in the same vein, arguing that, in paragraphs 47 and 48 of the judgment under appeal, the General Court attributed to the periodic penalty payment the function of a sanction for a breach of obligations.

32.      According to paragraph 42 of the judgment under appeal, although removing the case in the main proceedings from the register had an impact on the period during which the periodic penalty was payable, it did not have the effect of extinguishing the Republic of Poland’s obligation to pay the amount already due in respect of the periodic penalty payment. According to the General Court, to reach a different conclusion would be to deviate from the purpose of the periodic penalty payment, which is to guarantee the effective application of EU law.

33.      In paragraph 47 of the judgment under appeal, the General Court also found that, in the present case, the periodic penalty payment was intended not only to guarantee the effectiveness of the final judgment, but also to ensure that the Republic of Poland complied with the interim measures prescribed by the order of 21 May 2021, *Czech Republic* v *Poland* (C‑121/21 R, EU:C:2021:420), and to deter it from delaying compliance with that order.

34.      The General Court concludes, in paragraph 48 of the judgment under appeal, that the Republic of Poland’s line of argument would amount to depriving the periodic payment mechanism imposed under Article 279 TFEU of all substance by accepting that the party liable to make payment is deliberately failing to fulfil the obligation to comply with the interim measures ordered until the close of the main proceedings, thereby undermining the effectiveness of EU law.

35.      Poland rightly considers that the interim relief is ancillary to the main action. It aims to guarantee the full effectiveness of the future final judgment in order to avoid a lacuna in the legal protection afforded by the Court of Justice. ([12](#Footnote12)) By contrast, interim relief is not intended to penalise an infringement of EU law.

36.      The ancillary nature is also expressed in Article 160(1) and (2) of the Rules of Procedure. Article 160(1) concerns the suspension of a measure adopted by an institution, which can be requested only if the applicant has also challenged that measure. Under Article 160(2), an application for the adoption of one of the other interim measures referred to in Article 279 TFEU is admissible only if it is made by a party to a case before the Court and relates to that case.

37.      In addition, Poland correctly emphasises that initiative by the parties is required in respect of interim relief, since an application must be made by a party. A decision without any application being made by any party is provided for only in Article 160(7) of the Rules of Procedure in respect of orders made by the Court without the opposite party being heard but always at the request of a party.

38.      In view of that ancillary nature and the required initiative by the parties in respect of the interim relief, where a case is removed from the register as a result of a settlement agreement, the interim measures taken to ensure the effectiveness of the final judgment must also be cancelled.

39.      Therefore, following the closure of the main proceedings by the removal from the register ([13](#Footnote13)) of Case C‑121/21 as a result of the settlement agreement, the interim measures adopted in the context of those proceedings for interim relief also lapsed, ([14](#Footnote14)) as the General Court rightly pointed out in paragraphs 36 and 37 of the judgment under appeal.

40.      However, does that also mean that, as a result of the settlement agreement and the removal of the case from the register, the interim relief measures must be regarded as non-existent from the outset or as cancelled with retroactive effect?

41.      Article 147(1) of the Rules of Procedure of the Court of Justice leaves the question of retroactivity open. That provision provides only for an order that the case be removed from the register and a decision as to costs if the parties reach a settlement of their dispute before the Court has given its decision and inform the Court of the abandonment of their claims.

42.      The effects of the removal from the register are not expressly regulated. It is therefore conceivable for the previous procedural acts, including all measures of interim relief, to be cancelled with retroactive effect.

43.      That conclusion is supported by the ancillary nature of interim relief. As its aim is solely to guarantee the effectiveness of the future final judgment, it is no longer necessary if no final judgment is given.

44.      The abandonment of claims required for removal from the register under Article 147(1) of the Rules of Procedure also points in that direction. This means that the parties must also abandon any claims for interim relief. The retroactive abolition of interim relief measures corresponds, in that regard, to the required initiative by the parties in respect of that legal protection.

45.      The reference to the effective application of EU law in paragraphs 42 and 48 of the judgment under appeal also does not preclude the retroactive abolition of the interim relief measures. While it is true that interim relief also contributes to the effective application of EU law, that is only a necessary consequence of its primary function of guaranteeing the effectiveness of the future final judgment. In so far as that primary function no longer requires the interim relief measures to be maintained, the effective application of EU law can no longer justify them either. Otherwise, the interim relief would be detached from the main proceedings and would become autonomous.

46.      The retroactive abolition of interim relief measures would, however, be at odds with the structuring of the periodic penalty payment.

47.      The Vice-President of the Court ordered the Republic of Poland to pay a penalty payment of EUR 500 000 per day until the date of cessation of mining activities. Thus, any additional delay in the implementation of the interim measures should result in a higher amount. The periodic penalty payment was therefore intended to ensure not only that the original interim measure was implemented in the first place, but also that it was implemented as quickly as possible, as the General Court stated in paragraph 47 of the judgment under appeal.

48.      However, that additional coercive effect would be lost if the periodic penalty payment were to be cancelled even if implementation was delayed. In that respect, the cumulative periodic penalty payment, viewed in retrospect, does in fact have the effect of penalising the delayed implementation of the interim measures. However, that punitive effect is not the purpose of the imposition of the cumulative periodic penalty payment, but only a necessary structural feature of that coercive measure.

49.      As a necessary structural feature, that punitive effect does not contradict the ancillary nature of interim relief. In order to ensure the effectiveness of the future final judgment, it may be necessary to implement an application for interim measures as quickly as possible, for example in order to avoid a further increase in damages.

50.      However, that structuring of the penalty payment does not prevent the parties from agreeing to cancel the cumulative penalty payment already incurred with retroactive effect. As an interim measure, a penalty payment structured in this way is also subject to the initiative of the parties. Otherwise, that measure would be regarded as having an autonomous character which would no longer be compatible with the ancillary nature of interim relief.

51.      Admittedly, it cannot be ruled out that difficulties may arise from a factual point of view despite the retroactive legal abolition of the interim measures. If the Republic of Poland had complied with the interim measure of 21 May 2021 and ceased lignite mining activities, that Member State would have suffered significant disadvantages which the settlement agreement would not have remedied. Income would have been lost, while costs would still have been incurred for maintaining the open-cast mine, especially in relation to pumping out incoming groundwater. In addition, according to the submissions made by the Republic of Poland in Case C‑121/21, the continued operation of the Turów lignite-fired power plant and thus the local supply of district heating and the production of electricity were called into question. The Republic of Poland even expressed concern that the workers in the open-cast mine would have sought other employment during a cessation of mining activities and would no longer be available when mining resumed. That might even amount to prejudging the substance of the case.

52.      However, maintaining the interim relief measures until the removal of the case from the register is also a problem in itself. The Republic of Poland would have to pay a considerable amount in periodic penalty payments, even though the interim measure which that case sought to implement subsequently proved to be superfluous.

53.      The actual consequences of interim measures which subsequently prove to be superfluous must therefore, in any case, be approached differently. ([15](#Footnote15))

54.      Therefore, the first and third parts of the first ground of appeal are well founded, since, in paragraphs 42, 47 and 48 of the judgment under appeal, the General Court did not take sufficient account of the ancillary nature of the interim relief and the associated initiative by the parties, which amounts, in practice, to conferring on the periodic penalty payment an inadmissible autonomous punitive effect. On the basis of those errors of law, the judgment under appeal must be set aside.

2.      ***Pecuniary damage***

55.      By the second part of the first ground of appeal, the Republic of Poland complains that the judgment under appeal leads to irreparable pecuniary damage as a result of the interim measures. However, such irreparable damage is said to be incompatible with the provisional nature of interim relief.

56.      That argument is inadmissible in that it broadens the subject matter of the dispute as compared with the action before the General Court. The Republic of Poland therefore cannot identify any paragraph of the judgment under appeal that it is challenging either.

57.      Furthermore, if the Court of Justice agrees with my view on the first and third parts of the first ground of appeal, that argument is ineffective, since, at least in the present case, no pecuniary damage would arise on the Polish side.

58.      However, in the event that the Court should nevertheless consider those arguments to be admissible, but does not follow my position on the first and third parts of the first ground of appeal, it should be noted that EU law contains instruments to compensate for such pecuniary damage.

59.      It is true that the decision made by the judge responsible for granting interim relief may not prejudge the future decision on the substance of the case by depriving it of its effectiveness. ([16](#Footnote16))

60.      However, actual definitive pecuniary damage resulting from interim measures cannot be completely ruled out. I have already mentioned the significant disadvantages which are likely to result in the present case when implementing the interim measure of 21 May 2021. ([17](#Footnote17))

61.      If the final judgment had shown that the development consent at issue in Case C‑121/21 was unlawful, there would be no reason to compensate for such disadvantages. By contrast, if the final judgment had confirmed that the operation was lawful and thus demonstrated that the order was not necessary, the question would arise as to compensation for pecuniary damage resulting from the interim relief.

62.      In that case, the provision of a security could be considered, but also a claim based on unjust enrichment against the Commission as well as claims for damages against the opposing party or the Court of Justice.

63.      *First*, the provision of a *security* could, in principle, compensate for disadvantages if it subsequently transpires that the interim relief was not justified. As the Republic of Poland submits, Article 162(2) of the Rules of Procedure allows the execution of an interim measure to be made subject to security.

64.      In the present case, it might have been thought that the Czech Republic should provide such a security. However, the provision of security for the adverse consequences of the immediate cessation of lignite mining activities would be difficult to assess, in particular if that cessation were to result in a definitive cessation. That question did not arise in the proceedings for interim relief, however, since the Republic of Poland did not request the provision of such a security.

65.      *Secondly*, a claim for repayment of the penalty payment against the Commission for *unjust enrichment* would be conceivable. A person who has suffered a loss which increases the wealth of another person without there being any legal basis for that enrichment has the right, as a general rule, according to the principles common to the laws of the Member States, to restitution from the person enriched, up to the amount of the loss. ([18](#Footnote18)) If, prior to the settlement agreement, the Republic of Poland had already paid penalty payments to the Commission, but the penalty payment order were to be cancelled with retroactive effect – as I have suggested – the Republic of Poland could therefore recover those payments. However, if the Court does not follow my view as to the retroactive effect of the settlement agreement, there would still be a legal basis for the payment of the periodic penalty payment to the Commission for the period prior to that point.

66.      *Thirdly*, a *right to reparation* under EU law could allow for the compensation of pecuniary damage resulting from an interim measure. According to settled case-law, a right to reparation either in the form of non-contractual liability of the Member States or of the European Union exists if three conditions are met: the person who caused the damage must have infringed a rule of EU law intended to confer rights on the injured party, the breach of that rule must be sufficiently serious, and there must be a direct causal link between that breach and the alleged damage. ([19](#Footnote19))

67.      *On the one hand*, in very rare cases, such a right to reparation could exist against the applicant, in this case the Czech Republic. However, an application for interim relief infringes EU law only if the applicant submits it improperly, for example by deliberately misleading the General Court about the conditions for interim relief (judgment obtained fraudulently). There is nothing to suggest this in the present case with regard to the Czech Republic’s claims. Although further-reaching bases for liability based on the application for interim measures would be conceivable, ([20](#Footnote20)) no corresponding provisions exist to date.

68.      *On the other hand*, a right to reparation against the European Union could be envisaged, which would have to be based on a breach of EU law by the Court of Justice when deciding on the interim relief.

69.      The Court has already recognised that a breach of EU law by courts may give rise to a right to reparation. ([21](#Footnote21)) The force of *res judicata* does not preclude that right, since the subject matter of a claim for damages is different from that of the original judicial decision. ([22](#Footnote22))

70.      In practice, however, it is very difficult to establish such a right. As a rule, an interim measure will not be unlawful, let alone constitute a serious breach.

71.      In the present case, however, an action for damages against the European Union does not appear to be futile from the outset.

72.      The court hearing an application for interim relief may order an interim measure only if it is established that granting such a measure is justified, prima facie, in fact and in law (*fumus boni juris*) and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached regarding the substance. Where appropriate, the judge hearing such an application must also weigh up the interests involved. ([23](#Footnote23)) Moreover, the decision made by the judge responsible for granting interim relief may not prejudge the future decision on the substance of the case. ([24](#Footnote24))

73.      In the order of 21 May 2021, the Vice-President of the Court relied on the prima facie case that the Republic of Poland had granted the contested development consent for lignite extraction on the basis of a provision allowing the extension of consent without a prior environmental impact assessment. ([25](#Footnote25))

74.      However, it is already apparent from the facts of the case giving rise to the order of 21 May 2021 that the operator of the mine had attached an EIA decision to its application for the extension of the mining concession. ([26](#Footnote26)) It is therefore doubtful that the extension is based on the alleged deficiency in the implementation of the EIA Directive.

75.      In addition, in its defence in the main proceedings dated 7 June 2021, thus after the adoption of the interim measure, the Republic of Poland submitted that, on 28 April 2021, thus before the adoption of the interim measure, the competent authorities had already granted a further long-term development consent for lignite extraction which was based on an environmental impact assessment. With that further consent, the Republic of Poland remedied any deficiency in the consent at issue. The Vice-President of the Court ought to have taken that into account in the order of 20 September 2021 when ordering the periodic penalty payment for the purposes of enforcing the interim measure.

76.      Against that background, Advocate General Pikamäe appears to have limited the examination of that plea in law in the main proceedings to the compatibility of the Polish legislation with the EIA Directive and taken the view that the legality of the development consent for the extraction of lignite was not at issue. ([27](#Footnote27))

77.      The fact that the Vice-President of the Court does not establish a connection between the alleged infringement of the EIA Directive and the serious and irreparable harm justifying the urgency is also unconvincing. The Vice-President found that, by interfering with groundwater, the continuation of lignite mining activities at the Turów mine was likely to cause serious and irreparable damage to the environment and to human health. ([28](#Footnote28)) Such effects would certainly have to be examined in the context of an environmental impact assessment. However, an examination of that kind would not prevent such effects. ([29](#Footnote29))

78.      Nor, moreover, do the Czech Republic’s submissions in the main proceedings appear to have been aimed at establishing that such effects would infringe EU law. Rather, the Czech Republic considered that such an infringement of Article 4(1)(a)(ii) and (b)(ii) of the Water Framework Directive was justified by the exemptions under Article 4(4) and (5) of that directive. ([30](#Footnote30))

79.      And finally, the question merits a thorough examination of whether, in the context of the weighing of interests ([31](#Footnote31)) and when imposing the penalty payment, ([32](#Footnote32)) the Vice-President carried out an acceptable assessment of the Polish submissions on the adverse consequences of the cessation of lignite mining activities ([33](#Footnote33)) or exceeded the threshold for the distortion of evidence and perhaps even prejudged the substance of the case.

80.      However, the Republic of Poland has not put forward any arguments concerning those possible grounds for a right to reparation in the present proceedings.

81.      Nor, moreover, can it be for the Commission to challenge a similar argument alleging infringement of EU law by the Court of Justice. Rather, the European Union would also have to be represented by the Court of Justice in such proceedings before it. ([34](#Footnote34))

82.      That does not, however, preclude the Commission, possibly together with the Council and the Parliament, from seeking to reach a settlement agreement of the dispute relating to the periodic penalty payment in the event that the Court does not follow my views on the first and third parts of the first ground of appeal. It would probably serve the interests of all parties if the European Union used those funds for a special programme to support the energy transition in Poland and the Member State refrained from taking further measures to recover the penalty payment.

83.      As regards the second part of the first ground of appeal, by which the Republic of Poland alleges irreparable pecuniary damage, it must be stated, however, that it would be unfounded on account of the compensatory mechanisms described above, if, contrary to my view, the Court were to consider it admissible.

3.      ***Misinterpretation of the order of** **19 May** **2022***

84.      By the fourth part of the first ground of appeal, the Republic of Poland challenges paragraph 40 of the judgment under appeal. In that paragraph, the General Court held, inter alia, that it is expressly stated in paragraph 26 of the order of the Vice-President of the Court of 19 May 2022, *Czech Republic* v *Poland (Turów mine)* (C‑121/21 R, EU:C:2022:408), that the order that the Republic of Poland pay to the Commission a penalty of EUR 500 000 per day until the cessation of lignite mining activities must be regarded as having lapsed (only) with effect from 4 February 2022. In other words, the daily penalty payment imposed by the Vice-President of the Court in her order of 20 September 2021 ceased to produce its effects (only) from 4 February 2022. Accordingly, the daily penalty under paragraph 41 of the judgment under appeal was payable from 20 September 2021 to 3 February 2022.

85.      The Republic of Poland argues that, in the order of 19 May 2022, the Vice-President merely stated that, under Article 163 of the Rules of Procedure, he was only authorised to vary an interim measure for the future. Retroactive cancellation did not fall within his competence. ([35](#Footnote35)) Consequently, that order does not contain any finding relating to the (automatic) retroactive abolition of the imposition of a penalty payment as a result of the removal of the case in the main proceedings from the register.

86.      The Republic of Poland correctly submits that the findings in paragraph 26 of the order of 19 May 2022 were directly intended to form the basis of the Vice-President’s decision. In that regard, it was not necessary to determine that the imposition of a penalty payment could not be cancelled retroactively. Rather, the findings were sufficient, the Vice-President could not cancel the imposition of the penalty payment retroactively and, as a result of the removal of the case in the main proceedings from the register, the imposition of that penalty no longer applied in the future.

87.      However, the General Court also does not make any other finding in paragraph 40 of the judgment under appeal.

88.      Rather, the conclusion in paragraph 42 of the judgment under appeal, which is based on paragraph 40 thereof, that the removal of the case in the main proceedings from the register did not have the effect of extinguishing the obligation to settle the amount payable in respect of the periodic penalty payment, is decisive in respect of the argument raised by the Republic of Poland. That conclusion is, as has already been stated, ([36](#Footnote36)) vitiated by an error of law and must therefore be revoked.

89.      By contrast, the fourth part of the first ground of appeal is unfounded.

B.      **Statement of reasons for the judgment under appeal**

90.      By its second ground of appeal, the Republic of Poland challenges paragraph 46 of the judgment under appeal. In that paragraph, the General Court rejects the Republic of Poland’s argument that it is apparent from most national legal systems that provisional measures ordered, pending a final decision, retroactively cease to produce their effects when the main proceedings become devoid of purpose. That cannot suffice to establish that those procedural rules form part of the constitutional traditions common to the Member States and could, on that basis, form part of the legal order of the European Union as a source of law.

91.      In the context of that ground of appeal, the Republic of Poland does not dispute the content of that finding of the General Court, but merely claims that the statement of reasons is inadequate. It is therefore necessary only to examine whether the statement of reasons clearly and unequivocally discloses the General Court’s reasoning in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review. ([37](#Footnote37))

92.      The considerations set out in paragraph 46 of the judgment under appeal satisfy those requirements. Those considerations show that the information provided by Poland did not convince the General Court of the existence of a general constitutional tradition of the Member States whereby a settlement agreement leads to the retroactive invalidity of interim measures and the corresponding enforcement measures. In a similar case, the Court of Justice gave even more succinct reasons for its findings. ([38](#Footnote38))

93.      It follows that that finding is sufficiently reasoned and the second ground of appeal is unfounded.

V.      **The action before the General Court**

94.      Under the first paragraph of Article 61 of the Statute of the Court of Justice, the Court is to quash the decision of the General Court if the appeal is well founded. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

95.      It follows from my reasoning concerning the first and third parts of the first ground of appeal that the settlement agreement led to the retroactive cancellation of the interim relief measures. Therefore, by the decisions at issue, the Commission was wrong to offset the periodic penalty payment against Poland’s claims. Those decisions must therefore be annulled.

VI.    **Costs**

96.      Under Article 184(2) of the Rules of Procedure, where the appeal is well founded and the Court of Justice itself gives final judgment in the case, the Court is to make a decision as to the costs. Under Article 138(1) of those rules, which applies to the procedure on appeal in accordance with Article 184(1), the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

97.      Since the Republic of Poland has been successful and has applied for costs, the Commission must be ordered to pay its own costs and those incurred by the Republic of Poland.

VII. **Conclusion**

98.      I therefore propose that the Court should:

(1)      Set aside the judgment of the General Court of 29 May 2024, *Poland* v *Commission* (T‑200/22 and T‑314/22, EU:T:2024:329).

(2)      Annul the decisions of the European Commission of 7 and 8 February, 16 and 31 March and 16 May 2022, by which it recovered, by way of offsetting, the amounts payable by the Republic of Poland in respect of the daily penalty payment ordered by the Vice-President of the Court in her order of 20 September 2021, *Czech Republic* v *Poland* (C‑121/21 R, EU:C:2021:752), for the periods between, first, 20 September 2021 and 17 January 2022 and, secondly, 18 January 2022 and 3 February 2022.

(3)      Order the Commission to pay its own costs as well as those incurred by the Republic of Poland in the proceedings before the General Court and the Court of Justice.

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[1](#Footref1)      Original language: German.

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[2](#Footref2)      Order of 20 November 2017, *Commission* v *Poland* (C‑441/17 R, EU:C:2017:877, paragraph 97 et seq.).

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[3](#Footref3)      Directive of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘the EIA Directive’).

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[4](#Footref4)      Directive of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1), as last amended by Commission Directive 2014/101/EU of 30 October 2014 (OJ 2014 L 311, p. 32) (‘the Water Framework Directive’).

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[5](#Footref5)      Directive of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26) (‘the Environmental Information Directive’).

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[6](#Footref6)      See Opinion of Advocate General Pikamäe in *Czech Republic* v *Poland (Turów mine)*  (C‑121/21, EU:C:2022:74).

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[7](#Footref7)      Order of the Vice-President of the Court of 21 May 2021, *Czech Republic* v *Poland* (C‑121/21 R, EU:C:2021:420).

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[8](#Footref8)      Order of the Vice-President of the Court of 20 September 2021, *Czech Republic* v *Poland* *(Turów mine)* (C‑121/21 R, EU:C:2021:752).

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[9](#Footref9)      Order of 4 February 2022, *Czech Republic* v *Poland (Turów mine)* (C‑121/21, EU:C:2022:82).

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[10](#Footref10)      See, for example, Reuters, ‘Poland sign deal to end Polish coal mine dispute – Czech PM’, of 3 February 2022, https://www.reuters.com/article/business/energy/-poland-sign-deal-to-end-polish-coal-mine-dispute-czech-pm-idUSP7N2HH02Q/, and Landesecho, ‘Tschechien und Polen einigen sich im Konflikt um Kohlegrube Turów’, of 4 February 2024, https://landesecho.cz/wirtschaft/tschechien-und-polen-einigen-sich-im-konflikt-um-kohlegrube-turow/002031/.

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[11](#Footref11)      Regulation (EU, Euratom) of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1) (‘the Financial Regulation’).

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[12](#Footref12)      Order of 20 November 2017, *Commission* v *Poland* (C‑441/17 R, EU:C:2017:877, paragraphs 94 and 95). See also orders of the Vice-President of the Court of 10 September 2013, *Commission* v *Pilkington Group* (C‑278/13 P(R), EU:C:2013:558, paragraph 68), and of 2 March 2016, *Evonik Degussa* v *Commission* (C‑162/15 P-R, EU:C:2016:142, paragraph 29).

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[13](#Footref13)      Order of 4 February 2022, *Czech Republic* v *Poland (Turów mine)* (C‑121/21, EU:C:2022:82).

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[14](#Footref14)      Order of the Vice-President of the Court of 19 May 2022, *Czech Republic* v *Poland (Turów mine)* (C‑121/21 R, EU:C:2022:408, paragraphs 25 and 26).

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[15](#Footref15)      See below, points 62 to 81.

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[16](#Footref16)      Orders of the Vice-President of the Court of 10 September 2013, *Commission* v *Pilkington Group* (C‑278/13 P(R), EU:C:2013:558, paragraph 68); of 2 March 2016, *Evonik Degussa* v *Commission* (C‑162/15 P-R, EU:C:2016:142, paragraph 105); and of 20 November 2017, *Commission* v *Poland* (C‑441/17 R, EU:C:2017:877, paragraphs 94 and 95).

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[17](#Footref17)      See point 51 above.

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[18](#Footref18)      Judgments of 16 December 2008, *Masdar (UK)* v *Commission* (C‑47/07 P, EU:C:2008:726, paragraph 44), and of 9 July 2020, *Czech Republic* v *Commission* (C‑575/18 P, EU:C:2020:530, paragraph 82).

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[19](#Footref19)      Judgments of 5 March 1996, *Brasserie du pêcheur and Factortame* (C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 51); of 16 July 2009, *Commission* v *Schneider Electric* (C‑440/07 P, EU:C:2009:459, paragraph 160); and of 5 March 2024, *Kočner* v *Europol* (C‑755/21 P, EU:C:2024:202, paragraph 117).

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[20](#Footref20)      This is the case, for example, with the protection of intellectual property pursuant to Article 9(7) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45) and of trade secrets under Article 11(5) of Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (OJ 2016 L 157, p. 1).

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[21](#Footref21)      Judgments of 30 September 2003, *Köbler* (C‑224/01, EU:C:2003:513, paragraphs 32 to 36); of 16 July 2009, *Der Grüne Punkt – Duales System Deutschland* v *Commission* (C‑385/07 P, EU:C:2009:456, paragraph 195); and of 26 November 2013, *Gascogne Sack Deutschland* v *Commission* (C‑40/12 P, EU:C:2013:768, paragraph 89).

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[22](#Footref22)      See judgment of 30 September 2003, *Köbler* (C‑224/01, EU:C:2003:513, paragraph 39).

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[23](#Footref23)      Orders of 12 July 1996, *United Kingdom* v *Commission* (C‑180/96 R, EU:C:1996:308, paragraph 44); of the President of the Court of 24 September 1996, *United Kingdom* v *Commission* (C‑239/96 R and C‑240/96 R, EU:C:1996:347, paragraph 31); and of the Vice-President of the Court of 21 May 2021, *Czech Republic* v *Poland* (C‑121/21 R, EU:C:2021:420, paragraph 34).

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[24](#Footref24)      Orders of the Vice-President of the Court of 10 September 2013, *Commission* v *Pilkington Group* (C‑278/13 P(R), EU:C:2013:558, paragraph 68); of 2 March 2016, *Evonik Degussa* v *Commission* (C‑162/15 P-R, EU:C:2016:142, paragraph 105); and of 20 November 2017, *Commission* v *Poland* (C‑441/17 R, EU:C:2017:877, paragraphs 94 and 95).

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[25](#Footref25)      Order of the Vice-President of the Court of 21 May 2021, *Czech Republic* v *Poland* (C‑121/21 R, EU:C:2021:420, paragraph 49).

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[26](#Footref26)      Order of the Vice-President of the Court of 21 May 2021, *Czech Republic* v *Poland* (C‑121/21 R, EU:C:2021:420, paragraph 14).

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[27](#Footref27)      Opinion of Advocate General Pikamäe in *Czech Republic* v *Poland (Turów mine)* (C‑121/21, EU:C:2022:74, points 55 and 61).

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[28](#Footref28)      Order of the Vice-President of the Court of 21 May 2021, *Czech Republic* v *Poland* (C‑121/21 R, EU:C:2021:420, in particular paragraphs 66, 69 and 72).

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[29](#Footref29)      See judgment of 14 March 2013, *Leth* (C‑420/11, EU:C:2013:166, paragraph 46).

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[30](#Footref30)      See the fourth plea in law raised by the Czech Republic in Case C‑121/21 and, in that regard, the Opinion of Advocate General Pikamäe in *Czech Republic* v *Poland (Turów mine)*  (C‑121/21, EU:C:2022:74, point 131 et seq.).

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[31](#Footref31)      Order of the Vice-President of the Court of 21 May 2021, *Czech Republic* v *Poland* (C‑121/21 R, EU:C:2021:420, in particular paragraphs 89 and 90).

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[32](#Footref32)      Order of the Vice-President of the Court of 20 September 2021, *Czech Republic* v *Poland* (C‑121/21 R, EU:C:2021:752, paragraphs 24 and 25).

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[33](#Footref33)      See point 51 above.

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[34](#Footref34)      See orders of 6 January 2015, *Kendrion* v *European Union* (T‑479/14, EU:T:2015:2, paragraph 19), and of 18 December 2015, *Court of Justice* v *Kendrion* (C‑71/15 P, EU:C:2015:857), with regard to the removal from the register of the appeal brought against that order.

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[35](#Footref35)      Order of the Vice-President of the Court of 19 May 2022, *Czech Republic* v *Poland (Turów mine)* (C‑121/21 R, EU:C:2022:408, paragraphs 30 to 32, with reference to paragraph 22). See also orders of the Vice-President of the Court of 21 April 2023, *Commission* v *Poland (Independence and private life of judges)* (C‑204/21 R-RAP, EU:C:2023:334, paragraph 12), and of 28 September 2023, *Council* v *Mazepin* (C‑564/23 P(R), EU:C:2023:727, paragraph 24).

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[36](#Footref36)      See above, points 42 to 54.

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[37](#Footref37)      Judgments of 2 April 2009, *France Télécom* v *Commission* (C‑202/07 P, EU:C:2009:214, paragraph 29), and of 27 June 2024, *Commission* v *Servier and Others* (C‑176/19 P, EU:C:2024:549, paragraph 267).

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[38](#Footref38)      Judgment of 11 January 2000, *Netherlands and van der Wal* v *Commission* (C‑174/98 P and C‑189/98 P, EU:C:2000:1, paragraph 17).

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