Commission of the European Communities v French Republic.
Date: 2006-03-14
20. It should be recalled to begin with that the reference date for assessing whether there has been a failure to fulfil obligations under Article 228 EC is the date of expiry of the period prescribed in the reasoned opinion issued under that provision (see Case C‑304/02 Commission  v France  [2005] ECR I‑0000, paragraph 30).
21. Since the Commission seeks the imposition of a penalty payment on the French Republic, it must also be ascertained whether the alleged failure to fulfil obligations has continued up to the Court’s examination of the facts (see, to that effect, Case C‑304/02 Commission  v France , paragraph 31).
36. In the present case, since the Commission would, as is apparent from paragraph 22 above, have been entitled to seek a declaration that the French Republic had failed to fulfil its obligations under Article 228(1) EC because it had not, by the date on which the period prescribed in the reasoned opinion expired, made provision for exclusion of suppliers’ liability in any of the cases referred to in Article 3(3) of Directive 85/374, it cannot be criticised for seeking such a declaration with respect to one of those cases only, as a result of the adoption by that Member State of partial measures for compliance with the judgment in Case C‑52/00 Commission  v France  (see, by analogy, Case C‑174/91 Commission  v Belgium  [1993] ECR I‑2275, paragraphs 8 to 12).
37. As follows from the Court’s case-law, the requirement that the subject-matter of proceedings brought under Article 226 EC is circumscribed by the pre-litigation procedure provided for by that provision cannot go so far as to mean that in every case the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject-matter of the proceedings has not been extended or altered but simply limited. The Court has concluded in particular that, where legislation is altered during the pre-litigation procedure, the action may relate to provisions of national law which are not the same as those referred to in the reasoned opinion (see, in particular, Case C‑203/03 Commission  v Austria  [2005] ECR I‑935, paragraph 29).
38. Nothing prevents that from also being the case where legislation is altered after the action has been brought and the complaint maintained by the Commission as regards the altered legislation was necessarily included in the complaint alleging a complete failure to comply with a judgment of the Court (see, by analogy, with respect to Article 226 EC, Case C‑456/03 Commission  v Italy  [2005] ECR I‑0000, paragraph 40).
39. By imputing, in the course of the proceedings, its complaints against the old version of Article 1386‑7 of the Civil Code, which led to the finding of a failure to fulfil obligations in the judgment in Case C‑52/00 Commission  v France , to the new version of that article which replaced it during the present judicial proceedings, the Commission did not alter the subject-matter of the dispute (see, by analogy, with respect to Article 226 EC, Case C‑42/89 Commission  v Belgium  [1990] ECR I‑2821, paragraph 11).
43. It should be recalled, moreover, that the procedure laid down in Article 228 EC is based on the objective finding that a Member State has failed to fulfil its obligations (Case C‑304/02 Commission  v France , paragraph 44).
48. It should be recalled that, according to settled case-law, each Member State is bound to implement directives in a manner that fully meets the requirements of clarity and certainty in legal situations imposed by the Community legislature, in the interests of the persons concerned. To that end, the provisions of a directive must be implemented with unquestionable binding force and with the requisite specificity, precision and clarity (see, inter alia, Case C‑354/99 Commission  v Ireland  [2001] ECR I‑7657, paragraph 27). The provisions intended to transpose a directive must thus create a legal situation that is sufficiently clear, precise and transparent that individuals can ascertain the full extent of their rights and obligations and, where appropriate, rely on those rights before the national courts (see, inter alia, Case C‑131/88 Commission  v Germany  [1991] ECR I‑825, paragraph 6).
52. As to the argument that the fact that the supplier is not exempted from liability where he informs the injured person of the identity of his own supplier is of no great consequence in practice and therefore does not constitute an infringement of the directive, it need only be recalled that, even assuming that fact to have been established, non-compliance with an obligation imposed by a rule of Community law in itself constitutes a failure to fulfil obligations and the fact that the non-compliance has had no adverse effects is irrelevant (see, in particular, Case C‑150/97 Commission  v Portugal  [1999] ECR I‑259, paragraph 22).
58. It is for the Court to assess in each case, in the light of the circumstances of the case, the financial penalties to be imposed (Case C‑302/04 Commission  v France , paragraph 86).
59. It must also be recalled that the procedure laid down in Article 228(2) EC has the objective of inducing a defaulting Member State to comply with a judgment establishing a failure to fulfil obligations, and thereby of ensuring that Community law is in fact applied by that State. The measures provided for by that provision, namely a lump sum and a penalty payment, are both intended to achieve this objective (Case C‑304/02 Commission  v France , paragraph 80).
60. An order imposing a penalty payment and/or a lump sum is not intended to compensate for damage which may have been caused by the Member State concerned, but to place it under economic pressure which induces it to put an end to the infringement that has been established. The financial penalties imposed must therefore be decided on according to the degree of persuasion needed for the Member State in question to alter its conduct (Case C‑304/02 Commission  v France , paragraph 91).
61. In exercising its discretion, it is for the Court to set the penalty payment so that it is both appropriate to the circumstances and proportionate to the infringement that has been established and the ability to pay of the Member State concerned (see, in particular, Case C‑304/02 Commission  v France , paragraph 103).
62. In that light, and as the Commission suggested in its communication of 28 February 1997 on the method of calculating the penalty payments provided for pursuant to Article [228] of the EC Treaty (OJ 1997 C 63, p. 2), the basic criteria which must be taken into account in order to ensure that penalty payments have coercive force and Community law is applied uniformly and effectively are, in principle, the duration of the infringement, the seriousness of the infringement, and the ability of the Member State to pay. In applying those criteria, regard should be had in particular to the effects of failure to comply on private and public interests and to the urgency of inducing the Member State concerned to fulfil its obligations (see, in particular, Case C-304/02 Commission  v France , paragraph 104).
70. It should be observed that while guidelines such as those in the notices published by the Commission may indeed contribute to ensuring the transparency, predictability and legal certainty of that institution’s actions, it nevertheless remains the fact that exercise of the power conferred on the Court by Article 228(2) EC is not subject to the condition that the Commission adopts such rules, which in any event cannot bind the Court (see, in particular, Case C‑304/02 Commission  v France , paragraph 85). That applies inter alia to the scale for the coefficient relating to the duration of the infringement and the criteria for determining that coefficient.
71. That coefficient must be determined by the Court. For that purpose the duration of the infringement must be assessed by reference to the time when the Court assesses the facts, not the time at which the case is brought before it by the Commission, and the Court’s discretion is moreover not limited by the scale of 1 to 3 proposed by the Commission.
75. Fourth, the Commission’s suggestion of multiplying a base amount by a coefficient of 21.1, based on the gross domestic product of the French Republic and the number of votes it has in the Council of the European Union, is an appropriate way of reflecting that Member State’s ability to pay, while keeping the variation between Member States within a reasonable range (see, in particular, Case C‑304/02 Commission  v France , paragraph 109).
77. As regards, fifth, the frequency of the penalty payment, in a case such as the present one concerning compliance with a judgment of the Court which involves the adoption of a legislative amendment, a penalty imposed on a daily basis should be chosen.