European Commission v Ireland.
Date: 2012-12-19
18. According to the Court’s established case‑law on Article 228(2) EC, the reference date for assessing whether there had been an infringement for the purpose of that provision was the date of expiry of the period prescribed in the reasoned opinion issued under that provision (see Case C-610/10 Commission v Spain  [2012] ECR I‑0000, paragraph 66).
19. Since the FEU Treaty abolished the reasoned opinion stage in infringement proceedings under Article 260(2) TFEU, the reference date for assessing whether there has been an infringement for the purpose of Article 260 TFEU is the date of expiry of the period prescribed in the letter of formal notice issued in accordance with the first subparagraph of Article 260(2) (see Commission  v Spain , paragraph 67).
65. The imposition of a lump sum under Article 260 TFEU is based essentially on the assessment of the effects on public and private interests of the failure of the Member State concerned to comply with its obligations, in particular where the breach has persisted for a long period after the judgment initially establishing it was delivered (see Case C‑121/07 Commission  v France [2008] ECR I‑9159, paragraph 58).
66. It is for the Court, in each case, in the light of the circumstances of the case before it and the degree of persuasion and deterrence which appears to it to be required, to determine the appropriate financial penalties, such as the imposition of a lump sum, in particular with a view to preventing similar infringements of European Union law from recurring (see Case C‑121/07 Commission v France , paragraph 59).
67. As to whether a lump sum payment should be imposed, it should also be pointed out that this must, in each individual case, depend on all the relevant factors pertaining to both the particular nature of the infringement established and the individual conduct of the Member State involved in the procedure instigated pursuant to Article 260 TFEU (see Case C‑121/07 Commission  v France , paragraph 62).
70. Where a Member State repeatedly engages in unlawful conduct in such a manner in a specific sector governed by European Union rules, this may be an indication that effective prevention of future repetition of similar infringements of European Union law may require the adoption of a dissuasive measure, such as a lump sum payment (see Case C‑121/07 Commission  v France , paragraph 69).
71. As regards the argument that political circumstances delayed the adoption of the measures in question, it is sufficient to recall that a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under European Union law (see Case C‑407/09 Commission  v Greece , paragraph 36 and the case‑law cited).
72. As regards the seriousness of the infringement, where failure to comply with a judgment of the Court is likely to harm the environment, the protection of which is, indeed, one of the European Union’s policy objectives, as is apparent from Article 191 TFEU, such a breach is of a particularly serious nature (see Case C‑121/07 Commission  v France , paragraph 77 and the case-law cited).
73. That is the case in these proceedings, in which, inter alia, the definition of the new thresholds entered into force only on 8 September 2011, so that, at least up to that date, certain projects likely to have effects on the environment within the meaning of Directive 85/337 may have been implemented without any prior environmental impact assessment, in breach of the judgment in Case C‑66/06 Commission  v Ireland and, in particular, of the finding at paragraph 85 of that judgment.
76. As regards the amount of that lump sum, it should be noted, first, that if the Court decides to impose a lump sum payment, it must, in exercising its discretion, do so in a manner that is, on the one hand, appropriate to the circumstances and, on the other, proportionate both to the breach that has been established and the ability to pay of the Member State concerned (see Case C‑568/07 Commission v Greece  [2009] ECR I‑4505, paragraph 47 and the case-law cited).
77. While the Commission’s suggestions are a useful point of reference, they cannot in any event bind the Court. Similarly, while guidelines such as those in the notices of the Commission help to ensure that the Commission acts in a manner which is transparent, foreseeable and consistent with legal certainty, they do not bind the Court (see, to that effect, Case C-109/08 Commission  v Greece  [2009] ECR I‑4657, paragraph 27 and the case‑law cited).
78. In the present case, in addition to the considerations set out at paragraphs 68 to 74 above, account must be taken of Ireland’s ability to pay as it stands in the light of the latest economic data submitted for appraisal by the Court (see, to that effect, Case C‑407/09 Commission  v Greece , paragraph 42). Thus, it is necessary to take account of recent trends in inflation and the GDP of that Member State at the time of the Court’s examination of the facts (see Case C‑610/10 Commission  v Spain , paragraph 131).
79. In the present case, those data, which were provided by Ireland and have not been substantively challenged by the Commission, indicate that that Member State’s ability to pay has to a certain degree been diminished in the context of economic crisis.