European Commission v Kingdom of Belgium.
Date: 2013-10-17
32. In that connection, the reference date which must be used for assessing whether there has been a failure to fulfil obligations under Article 260(1) TFEU is that of the expiry of the period prescribed in the letter of formal notice issued under that provision (Case C‑610/10 Commission v Spain [2012] ECR I‑0000, paragraph 67, and Case C‑241/11 Commission v Czech Republic  [2013] ECR I‑0000, paragraph 23). Where, however, the proceedings for failure to fulfil obligations were commenced on the basis of Article 228(2) EC, the reference date for assessing whether there has been a failure to fulfil obligations is the date of expiry of the period prescribed in the reasoned opinion issued before entry into force of the Lisbon Treaty, that is, December 2009 (see, to that effect, Case C‑496/09 Commission  v Italy  [2011] ECR I‑11483, paragraph 27).
51. That provision confers in that regard a wide discretion upon the Court in deciding whether or not to impose such a penalty and determining, if necessary, its amount. In particular, an order requiring a Member State to pay a lump sum cannot be made automatically (see, Commission  v Czech Republic , paragraph 42 and the case-law cited).
52. For that purpose, the Commission’s suggestions cannot bind the Court and are merely guidance. Likewise, guidelines concerning orders for payment of lump sums, such as those appearing in the Communication from the Commission SEC(2005) 1658, as updated, which the Commission relied on in the present case, do not bind the Court, but may contribute to ensuring that the Commission’s actions are transparent, foreseeable and consistent with legal certainty (see Commission  v Czech Republic , paragraph 43 and the case-law cited).
53. In those circumstances, it is for the Court, in exercising its discretion, to determine the amount of the penalty payment in a manner that is appropriate to the circumstances and proportionate both to the breach that has been established and the ability to pay of the Member State concerned. Relevant considerations in this respect include factors such as the length of time for which the breach of obligations complained of has persisted since the judgment establishing it was delivered, and the seriousness of the infringement (see Commission  v Spain , paragraphs 143 and 144 and the case-law cited).
55. As regards the seriousness of the infringement, it must be noted that Directive 91/271 aims to protect the environment. By classifying the whole of its territory as a ‘sensitive area’, in accordance with Article 5(1) of and Annex II thereto, the Kingdom of Belgium has recognised the need for increased environmental protection on its territory. The lack of treatment for urban waste water constitutes damage to the environment.
56. Furthermore, where failure to comply with a judgment of the Court is likely to harm the environment, the protection of which is 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 judgment of 19 December 2012 in Case C‑279/11 Commission v Ireland , paragraph 72 and the case-law cited).
61. Consequently, 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‑374/11 Commission  v Ireland , paragraph 48 and the case-law cited).
64. 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‑374/11 Commission  v Ireland , paragraph 33 and the case-law cited).
66. In those circumstances, the Court considers that the imposition of a penalty payment on the Kingdom of Belgium constitutes an appropriate financial means to ensure full compliance with the judgment in Commission v Belgium  (see Case C‑374/11 Commission  v Ireland , paragraph 35 and the case-law cited).
68. It should be recalled that, 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 established and the ability to pay of the Member State concerned (see Case C‑374/11 Commission  v Ireland , paragraph 36 and the case-law cited).
69. 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 European Union 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 failure to comply and to the urgency with which the Member State concerned must be induced to fulfil its obligations (see, Commission  v Spain , paragraph 119 and the case-law cited).
73. As regards the frequency of the penalty payment, in accordance with the Commission’s proposal, given that the provision of evidence of the compliance with Directive 91/271 may require a certain amount of time and in order to take account of any progress made by the defendant Member State, the Court considers it appropriate for the penalty payment to be calculated on the basis of six-month periods, reducing the total relating to such periods by a percentage corresponding to the proportion representing the number of p.e.s which have been brought into compliance with the judgment in Commission  v Belgium .
74. The Kingdom of Belgium must therefore be ordered to pay to the Commission, into the ‘European Union own resources’ account, a penalty payment of EUR 859 404 for each six-month period of delay in taking the measures necessary to comply with the judgment in Commission  v Belgium , from the date of delivery of this judgment until the date on which the judgment in Commission v Belgium has been complied with in full, the actual amount of which is to be calculated at the end of each six-month period by reducing the total relating to such periods by a percentage corresponding to the proportion which the number of p.e.s which have been brought into compliance with the judgment in Commission  v Belgium  by end of such a period bears to the number of p.e.s which were not brought into compliance with this judgment on the day of its delivery.
Costs