European Commission v Italian Republic.
Date: 2014-12-02
32. As regards the preliminary plea of inadmissibility raised by the Italian Republic, concerning the reference in the Commission’s application to new sites that are not in conformity, it should be observed that the procedure laid down in Article 260(2) TFEU must be regarded as a special judicial procedure for the enforcement of judgments of the Court, in other words, as a method of enforcement. Consequently, failure by a Member State to fulfil its obligations under the Treaty can be dealt with under that procedure only in relation to infringements that the Court, ruling on the basis of Article 258 TFEU, has already established (see, to that effect, judgment in Commission  v Germany , C‑95/12, EU:C:2013:676, paragraph 23).
33. In the present case, however, it must be recalled that, in its judgment in Commission  v Italy (EU:C:2007:250), the Court’s finding that there was a general and persistent failure to fulfil obligations was based not only on the 2002 CFS report, but also on other information, such as the reports drawn up by national parliamentary commissions of inquiry or official documents emanating, in particular, from regional authorities. In those circumstances, in so far as the Italian Republic confines itself to complaining that, in the present action, the Commission has referred to certain sites despite the fact that they are not mentioned in the CFS report, that argument must be rejected, for such sites must be regarded as necessarily encompassed by the general and persistent failure to fulfil obligations established in the first action brought under Article 226 EC (now Article 258 TFEU) (see, by analogy, in the context of an action under Article 226 EC, judgment in Commission  v Ireland , C‑494/01, EU:C:2005:250, paragraphs 37 to 39).
45. The first point to be noted is that, 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 purposes of Article 260(1) TFEU is the deadline set in the letter of formal notice issued in accordance with the first subparagraph of Article 260(2) TFEU (see judgment in Commission  v Spain , C‑184/11, EU:C:2014:316, paragraph 35 and case-law cited).
48. In addition, according to settled case-law, it is for the Commission to provide the Court, in the course of such proceedings, with the information necessary to determine the extent to which a Member State has complied with a judgment declaring it to be in breach of its obligations. Where the Commission has adduced sufficient evidence to show that the breach of obligations has persisted, it is for the Member State concerned to challenge in substance and in detail the information produced and the consequences flowing therefrom (see judgment in Commission  v Italy , C‑119/04, EU:C:2006:489, paragraph 41 and case-law cited).
68. In the third place, as regards the complaint relating to infringement of Article 14(a) to (c) of Directive 1999/31, it should be recalled that, by authorising the operation of a landfill without a site conditioning plan having been submitted to, and approved by, the competent authorities beforehand, a Member State fails to fulfil its obligations under that provision (see, to that effect, judgment in Commission  v Slovakia , C‑331/11, EU:C:2013:271, paragraphs 34 to 39).
86. It should be recalled 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, to that effect, judgment in Commission  v Spain , EU:C:2014:316, paragraph 58 and case-law cited).
The penalty payment
93. In the light of the foregoing, it must be held that numerous sites, in almost all the Italian regions, have not yet been brought into conformity with the provisions at issue and that, accordingly, the failure on the part of the Italian Republic to fulfil its obligations has continued up to the time of the Court’s examination of the facts in the present case.
95. As regards the amount of that penalty payment and the form it should take, it is for the Court, in the exercise of its discretion, in accordance with settled case-law, to set the penalty payment in such a way 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, to that effect, judgment in Commission  v Luxembourg , C‑576/11, EU:C:2013:773, paragraph 46 and case-law cited). The Commission’s suggestions concerning the penalty payment cannot bind the Court and constitute merely a useful point of reference. Similarly, guidelines such as those set out in the communications of the Commission are not binding on the Court but contribute to ensuring that the Commission’s own actions are transparent, foreseeable and consistent with legal certainty when that institution makes suggestions to the Court (see, to that effect, judgment in Commission  v Spain , EU:C:2012:781, paragraph 116 and case-law cited). In proceedings under Article 260(2) TFEU relating to a failure to fulfil obligations on the part of a Member State that has persisted notwithstanding the fact that that same failure to fulfil obligations has already been established in a first judgment delivered under Article 226 EC or Article 258 TFEU, the Court must remain free to set the penalty payment to be imposed in an amount and in a form that the Court considers appropriate for the purposes of inducing that Member State to bring to an end its failure to comply with the obligations arising under that first judgment of the Court.
97. Accordingly, in the assessment carried out by the Court, the criteria which must be taken into account in order to ensure that penalty payments have coercive force and that EU law is applied uniformly and effectively are, in principle, the duration of the infringement, its degree of seriousness and the ability of the Member State concerned to pay. In applying those criteria, the Court is required to have regard, in particular, to the effects on public and private interests of the failure to comply and to the urgent need for the Member State concerned to be induced to fulfil its obligations (judgment in Commission  v Spain , EU:C:2012:781, paragraph 119 and case-law cited).
98. As regards the seriousness of the infringement, it must be held that the obligation to dispose of waste without endangering human health and without harming the environment forms part of the very objectives of EU environmental policy, as is apparent from Article 191 TFEU. In particular, the failure to comply with the obligations arising under Article 4 of Directive 75/442 could, by the very nature of those obligations, endanger human health directly and harm the environment, and must therefore be regarded as particularly serious (see, to that effect, in particular, judgment in Commission  v Greece , EU:C:2000:356, paragraph 94).
102. As regards the duration of the infringement, this must be assessed by reference to the time when the Court assesses the facts, not the time when the case is brought before it by the Commission (judgment in Commission  v Spain , EU:C:2012:781, paragraph 120 and case-law cited).
105. For the purposes of determining the form of the penalty payment to be imposed pursuant to Article 260(2) TFEU, it is for the Court to take account of various factors relating both to the nature of the failure to fulfil obligations concerned and to the circumstances of the case before it. As stated in paragraph 95 above, the form of the penalty payment, like the amount of the financial penalties, falls within the Court’s discretion and the Court is in no way bound by the Commission’s suggestions on that point.
106. As regards the Commission’s proposal that a decreasing penalty payment should be imposed, it should be observed that, even if — in order to ensure full compliance with the Court’s judgment — the penalty payment must be payable in its entirety until such time as the Member State has taken all the measures necessary to bring to an end the failure to fulfil obligations established, nevertheless, in certain specific cases, a penalty which takes account of the progress that the Member State may have made in complying with its obligations may be envisaged (see, to that effect, judgments in Commission  v Spain , C‑278/01, EU:C:2003:635, paragraphs 43 to 51; Commission  v Italy , C‑496/09, EU:C:2011:740, paragraphs 47 to 55; and Commission  v Belgium , C‑533/11, EU:C:2013:659, paragraphs 73 and 74).
113. The first point to be noted is that, in exercising the discretion conferred on it in such matters, the Court is empowered to impose a penalty payment and a lump sum payment cumulatively (judgment in Commission  v Spain , EU:C:2012:781, paragraph 140 and case-law cited).
114. The imposition of a lump sum payment and the fixing of that sum must depend in each individual case on all the relevant factors relating both to the characteristics of the failure to fulfil obligations established and to the conduct of the Member State involved in the procedure initiated under Article 260 TFEU. That provision confers a wide discretion on the Court in deciding whether to impose such a penalty and, if it decides to do so, in determining the amount (see judgment in Commission  v Spain , EU:C:2014:316, paragraph 60 and case-law cited).
115. In the present proceedings, account must be taken of all the legal and factual circumstances leading to the failure to fulfil obligations established and, in particular, of the high number of sites that have not yet been brought into conformity with EU law. Furthermore, as the Advocate General observed in point 188 of her Opinion, in addition to the present case, which has arisen as a consequence of the failure to comply with the judgment in Commission  v Italy  (EU:C:2007:250), more than 20 cases concerning waste have been brought before the Court and have culminated in a finding that the Italian Republic had failed to fulfil its obligations under EU law.
116. The fact that a Member State thus repeatedly engages in unlawful conduct in a specific sector governed by EU rules is an indication that effective prevention of future repetition of similar infringements of EU law may require the adoption of a dissuasive measure, such as the imposition of a lump sum payment (see judgment in Commission  v Spain , EU:C:2014:316, paragraph 78 and case-law cited).
117. In those circumstances, it is for the Court, in the exercise of its discretion, to fix the lump sum in an amount appropriate to the circumstances and proportionate to the infringement (see, to that effect, judgment in Commission  v Greece , C‑369/07, EU:C:2009:428, paragraph 146).
118. Relevant considerations in this respect include factors such as the seriousness of the infringement and the length of time for which the infringement has persisted since the delivery of the judgment establishing it (see, to that effect, judgment in Commission  v Italy , EU:C:2011:740, paragraph 94), and the relevant Member State’s ability to pay (see judgment in Commission v Spain , EU:C:2014:316, paragraph 80).