European Commission v Ireland.
Date: 2012-12-19
19. In that respect, the reference date for assessing whether there has been a failure to fulfil obligations under Article 260(1) TFEU is the date of expiry of the period prescribed in the reasoned opinion issued under that provision (see judgment of 11 December 2012 in Case C‑610/10 Commission  v Spain  [2012] ECR I‑0000, paragraph 67).
21. Furthermore, with regard to Ireland’s argument that the action is premature, it must be pointed out that, even though Article 260(1) TFEU does not specify the period within which a judgment must be complied with, it follows from settled case-law that the importance of immediate and uniform application of European Union law means that the process of compliance must be initiated at once and completed as soon as possible (see, to that effect, Case C‑278/01 Commission  v Spain  [2003] ECR I‑14141, paragraph 27 and the case‑law cited).
33. According to settled case-law, the imposition of a penalty payment is, in principle, justified only in so far as the failure to comply with an earlier judgment of the Court continues up to the time of the Court’s examination of the facts (Case C‑496/09 Commission  v Italy  [2011] ECR I‑0000, paragraph 42, and Case C‑610/10 Commission  v Spain , paragraph 96).
35. In those circumstances, the Court takes the view that the imposition of a penalty payment on Ireland constitutes an appropriate financial means to ensure full compliance with the judgment in Case C‑188/08 Commission  v Ireland (see, to that effect, Commission  v Italy , paragraph 45, and Case C‑610/10 Commission  v Spain , paragraph 114).
– The amount of the penalty payment
36. It should be recalled that, in exercising its discretion in the matter, it is for the Court to set the penalty payment so that it is both appropriate to the circumstances and proportionate to the infringement established and the ability of the Member State concerned to pay (see Commission  v Italy , paragraph 56 and the case-law cited).
37. In the assessment carried out by the Court, the criteria which must be taken into account in order to ensure that a penalty payment has coercive force with a view to the uniform and effective application of European Union law are, in principle, the duration of the infringement, its degree of seriousness and the ability of the Member State concerned to pay. For the purpose of applying those criteria, the Court is required to have regard in particular to the effects of non-compliance on the public and private interests at issue and to the urgency of compliance by the Member State concerned with its obligations (see Commission  v Italy , paragraph 57).
38. In the present case, the failure to fulfil obligations identified in the judgment in Case C‑188/08 Commission  v Ireland concerns the incomplete transposition of Directive 75/442, Article 2 of which provided for a transposition period expiring no later than 1 April 1993. Since, more than 19 years after that date, Ireland has still not complied with all of its obligations under that directive – the principal objectives of which are the protection of human health and of the environment – the Court cannot but confirm the particularly lengthy character of an infringement which, in the light of such objectives, is also a matter of indisputable gravity.
39. While Ireland claims that the delay in its compliance with the judgment in Case C‑188/08 Commission  v Ireland was attributable to internal difficulties connected with the complexity of the implementation of Directive 75/442, it must be pointed out that a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify the failure to observe obligations arising under European Union law (see Case C‑407/09 Commission  v Greece  [2011] ECR I‑0000, paragraph 36).
43. Having regard to all of the circumstances of the present case, the Court considers that it is appropriate to impose a daily penalty payment of EUR 12 000 to ensure implementation of the judgment in Case C‑188/08 Commission  v Ireland , that sum taking into account Ireland’s capacity to pay as it stands at the date of the Court’s examination of the facts (see, to that effect, Case C‑610/10 Commission  v Spain , paragraph 131).
44. In the present case, the data provided by Ireland, which have not been substantively disputed by the Commission, show that that Member State’s capacity to pay was reduced in the context of economic crisis (see also, to that effect, judgment of 19 December 2012 in Case C‑279/11 Commission  v Ireland [2012] ECR I‑0000, paragraph 79).
46. As a preliminary point, it must be pointed out that, in the light of the objectives of the procedure laid down in Article 260(2) TFEU, the Court is empowered, in the exercise of the discretion conferred on it by that article, to impose a penalty payment and a lump sum payment cumulatively (see, to that effect, Case C‑304/02 Commission  v France [2005] ECR I‑6263, paragraph 83, and Case C‑610/10 Commission  v Spain , paragraph 140).
47. The imposition of a lump sum payment must, in each individual case, depend on all the relevant factors relating both to the characteristics of the infringement established and to the conduct of the Member State involved in the procedure initiated under Article 260 TFEU. In that respect, that provision confers a wide discretion on the Court in deciding whether or not to impose such a penalty (Case C‑610/10 Commission  v Spain , paragraph 141).
48. With regard to the present case, the Court takes the view that all the legal and factual circumstances pertaining to the infringement established indicate that effective prevention of future repetition of similar infringements of European Union law requires the adoption of a deterrent measure, such as the imposition of a lump sum payment (see, to that effect, Case C‑369/07 Commission  v Greece [2009] ECR I‑5703, paragraph 145, and Case C‑610/10 Commission  v Spain , paragraph 142).
50. If the Court decides to order a lump sum payment, it must, in the exercise of its discretion, set that payment in such a way that it is, first, appropriate to the circumstances and, secondly, proportionate both to the infringement that has been established and to the ability of the Member State concerned to pay ( Commission  v Greece , paragraph 146).
51. The relevant factors to be taken into account in that regard include, in particular, factors such as how long the breach of obligations has persisted since the judgment which initially established it was delivered and the public and private interests involved (Case C‑121/07 Commission  v France  [2008] ECR I‑9159, paragraph 64 and the case‑law cited).