European Commission v Kingdom of Belgium.
Date: 2019-07-08
23


As a preliminary point, it must be recalled that, in accordance with the Court’s settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion, and that the Court cannot take account of any subsequent changes (judgments of 30 January 2002, Commission v Greece, C‑103/00, EU:C:2002:60, paragraph 23, and of 21 March 2019, Commission v Italy, C‑498/17, EU:C:2019:243, paragraph 29).
24


In the present case, the Commission sent its reasoned opinion to the Kingdom of Belgium on 30 September 2016, so that the 2‑month period set therein expired on 30 November 2016. It is, however, common ground that that time limit, which was extended by the Commission at the request of the Belgian authorities, ultimately expired on 28 February 2017. The assessment as to whether or not there has been a failure to fulfil obligations as claimed must therefore relate to the state of the domestic legislation in force on that date (see, by analogy, judgment of 9 December 2004, Commission v France, C‑177/03, EU:C:2004:784, paragraph 25).
49


In that regard, it is clear from the Court’s settled case-law that the interpretation of a provision of EU law requires that account be taken not only of its wording and the objectives it pursues, but also of its context and the provisions of EU law as a whole. The origins of a provision of EU law may also provide information relevant to its interpretation (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 47 and the case-law cited).
51


The Court has repeatedly held on that matter, in proceedings relating to Article 258 TFEU, that the notification required of the Member States, in accordance with the principle of sincere cooperation laid down in Article 4(3) TEU, is intended to facilitate the achievement of the Commission’s tasks, which consist, inter alia, under Article 17 TEU, in ensuring the application of the Treaties and of measures adopted by the institutions pursuant to them. That notification must contain sufficiently clear and precise information on the substance of the national rules which transpose a directive. Thus, notification, to which a correlation table may be added, must indicate unequivocally the laws, regulations and administrative provisions by means of which the Member State considers that it has satisfied the various requirements imposed on it by that directive. In the absence of such information, the Commission is not in a position to ascertain whether the Member State has genuinely implemented the directive in full. The failure of a Member State to fulfil that obligation, whether by providing no information at all, partial information or by providing insufficiently clear and precise information, may of itself justify recourse to the procedure under Article 258 TFEU in order to establish the failure to fulfil the obligation (see, to that effect, judgments of 16 June 2005, Commission v Italy, C‑456/03, EU:C:2005:388, paragraph 27, and of 27 October 2011, Commission v Poland, C‑311/10, not published, EU:C:2011:702, paragraphs 30 to 32).
52


Next, as regards the purpose of Article 260(3) TFEU, it must be borne in mind that that provision broadly corresponds to Draft Article 228(3) of the Treaty establishing a Constitution for Europe, as set out on page 15 of the cover note of the Praesidium to the Convention of 12 May 2003 (CONV 734/03), a draft of which the wording itself mirrors the wording proposed in the Final report of the discussion circle on the Court of Justice of 25 March 2003 (CONV 636/03, pages 10 and 11). It is clear from that final report that the objective pursued by the introduction of the system set out in Article 260(3) TFEU is not only to induce Member States to put an end as soon as possible to a breach of obligations which, in the absence of such a measure, would tend to persist, but also to simplify and speed up the procedure for imposing pecuniary sanctions for failures to comply with the obligation to notify a national measure transposing a directive adopted through a legislative procedure, it being specified that, prior to the introduction of such a system, it might be years before a pecuniary sanction was imposed on Member States which had failed to comply timely with an earlier judgment of the Court and failed to respect their obligations to transpose a directive.
58


In those circumstances, the Court upholds an interpretation of Article 260(3) TFEU which, on the one hand, allows prerogatives held by the Commission for the purposes of ensuring the effective application of EU law, of protecting the rights of the defence and the procedural position enjoyed by the Member States under Article 258 TFEU read in conjunction with Article 260(2) TFEU to be guaranteed, and, on the other, puts the Court into a position of being able to exercise its judicial function of determining, in a single set of proceedings, whether the Member State in question has fulfilled its notification obligations and, where relevant, assess the seriousness of the declared failure and to impose the financial penalty which it considers to be the most suited to the circumstances of the case.
59


In the light of all the foregoing, the expression ‘obligation to notify measures transposing a directive’ in Article 260(3) TFEU must be interpreted as referring to the obligation of the Member States to provide sufficiently clear and precise information on the measures transposing a directive. In order to satisfy the obligation of legal certainty and to ensure the transposition of the provisions of that directive in full throughout its territory, the Member States are required to state, for each provision of the directive, the national provision or provisions ensuring its transposition. Once notified, where relevant in addition to a correlation table, it is for the Commission to establish, for the purposes of seeking the financial penalty to be imposed on the Member State in question laid down in that provision, whether certain transposing measures are clearly lacking or do not cover all of the territory of the Member State in question, bearing in mind that it is not for the Court, in court proceedings brought under Article 260(3) TFEU, to examine whether the national measures notified to the Commission ensure a correct transposition of the provisions of the directive in question.
60


According to the Court’s case-law, the imposition of a penalty payment is, in principle, justified only in so far as the failure continues for which that penalty was imposed up to the time of the Court’s examination of the facts (see, to that effect, judgments of 12 July 2005, Commission v France, C‑304/02, EU:C:2005:444, paragraph 31; of 18 July 2006, Commission v Italy, C‑119/04, EU:C:2006:489, paragraph 33; and of 7 September 2016, Commission v Greece, C‑584/14, EU:C:2016:636, paragraph 70).
61


That case-law, relating to Article 260(2) TFEU, must be applied by analogy to Article 260(3) TFEU, in so far as the penalty payments under both provisions seek to achieve the same objective, namely 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 tend to persist (see, to that effect, judgment of 12 July 2005, Commission v France, C‑304/02, EU:C:2005:444, paragraph 81).
78


As a preliminary matter, it must be borne in mind that, in each case, it is for the Court to determine, in the light of the circumstances of the case before it and according to the degree of persuasion and deterrence which appears to it to be required, the financial penalties appropriate, in particular, for preventing the recurrence of similar infringements of EU law (see, by analogy with Article 260(2) TFEU, judgment of 2 December 2014, Commission v Italy, C‑196/13, EU:C:2014:2407, paragraph 86 and the case-law cited).
83


It should be noted that, in exercising its discretion in the matter, it is for the Court to set the penalty payment so that it is, first, appropriate to the circumstances and proportionate to the infringement established and the ability to pay of the Member State concerned (see, by analogy, judgments of 4 July 2000, Commission v Greece, C‑387/97, EU:C:2000:356, paragraph 90, and of 14 November 2018, Commission v Greece, C‑93/17, EU:C:2018:903, paragraph 118) and, second, does not exceed, in accordance with the second paragraph of Article 260(3) TFEU, the amount specified by the Commission.
84


In the assessment which is for the Court to carry out for the purposes of determining the amount of a penalty payment, the criteria which must be taken into consideration in order to ensure its coercive effect so that EU law is applied uniformly and effectively are, in principle, the duration and seriousness of the infringement and the ability to pay of the Member State in question. In applying those criteria, the Court must have regard, in particular, to the effects of the failure to fulfil its obligations on the public and private interests in question and to how urgent it is for the Member State concerned to be induced to fulfil its obligations (see, by analogy with Article 260(2) TFEU, judgment of 14 November 2018, Commission v Greece, C‑93/17, EU:C:2018:903, paragraph 120 and the case-law cited).
85


As regards the seriousness of the infringement, it must be found that the obligation to adopt the national measures for the purposes of ensuring that a directive is transposed in full and the obligation to notify those measures to the Commission are fundamental obligations incumbent on the Member States in order to ensure optimal effectiveness of EU law and that failure to fulfil those obligations must therefore be regarded as undoubtedly serious.
87


As regards the duration of the infringement, it should be recalled that that duration must be assessed by reference to the date on which the Court assesses the facts and not the date on which proceedings are brought before it by the Commission (see, by analogy with Article 260(2) TFEU, judgment of 14 November 2018, Commission v Greece, C‑93/17, EU:C:2018:903, paragraph 130 and the case-law cited).