European Commission v Slovak Republic.
Date: 2018-07-04
26


Article 14(a) of Directive 1999/31 requires the operator of an existing landfill site to prepare and present to the competent authorities, for their approval, a conditioning plan for the site in question and Article 14(b) of the directive obliges the Member States, following the presentation of that conditioning plan, to take a definite decision on whether operations may continue on the basis of the plan and that directive. In that regard, Article 14(b) of Directive 1999/31 provides the Member States with two possibilities. Either the competent national authority is to authorise the continued operation of the landfill site in accordance with Article 8 of the directive or the Member State in question is to take the necessary measures to close down the site as soon as possible in accordance with Article 7(g) and Article 13 thereof.
27


Thus, the obligation to ensure that only landfill sites satisfying the requirements of Directive 1999/31 remain operational implies the closure of landfill sites which have not been granted a permit to continue to operate (see, to that effect, judgments of 16 July 2015, Commission v Bulgaria, C‑145/14, not published, EU:C:2015:502, paragraph 30, and of 25 February 2016, Commission v Spain, C‑454/14, not published, EU:C:2016:117, paragraph 59).
49


The reference date for assessing whether there has been a failure to fulfil obligations under Article 260(1) TFEU is the date of expiry of the period prescribed in the letter of formal notice issued under that provision (judgment of 13 July 2017, Commission v Spain, C‑388/16, not published, EU:C:2017:548, paragraph 21 and the case-law cited).
58


In that regard, it should be noted that it is, for the purposes of that obligation, insufficient to discontinue landfill of new waste; rather the Member State is required to ensure that those preparations for closure are carried out which are necessary for the landfill site in question to comply with the requirements of Directive 1999/31 (see, to that effect, judgment of 25 February 2016, Commission v Spain, C‑454/14, not published, EU:C:2016:117, paragraphs 60 and 61).
60


However, such a justification for the delay in complying with the judgment in Case C‑331/11 cannot be accepted. As the Court has repeatedly held, a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under EU law (judgment of 13 July 2017, Commission v Spain, C‑388/16, not published, EU:C:2017:548, paragraph 41 and the case-law cited).
74


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 (judgment of 7 September 2016, Commission v Greece, C‑584/14, EU:C:2016:636, paragraph 70 and the case-law cited).
82


In exercising its discretion in the matter, 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 (judgment of 15 October 2015, Commission v Greece, C‑167/14, not published, EU:C:2015:684, paragraph 52 and the case-law cited).
83


The Commission’s proposals regarding the penalty payment cannot bind the Court and are 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 proposals to the Court. 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 an initial judgment delivered under 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 initial judgment of the Court (judgment of 22 June 2016, Commission v Portugal, C‑557/14, EU:C:2016:471, paragraph 69).
84


For the purposes of determining the amount of a penalty payment, the basic criteria which must be taken into consideration in order to ensure that that payment has coercive effect and that EU law is applied uniformly and effectively are, in principle, the seriousness of the infringement, its duration and the ability to pay of the Member State in question. In applying those criteria, regard must be had, in particular, to the effects on public and private interests of the failure to comply and to how urgent it is for the Member State concerned to be induced to fulfil its obligations (judgment of 22 June 2016, Commission v Portugal, C‑557/14, EU:C:2016:471, paragraph 70).
96


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 of 22 February 2018, Commission v Greece, C‑328/16, EU:C:2018:98, paragraph 116 and the case-law cited).
97


An order to pay a lump sum 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, to that effect, judgment of 13 May 2014, Commission v Spain, C‑184/11, EU:C:2014:316, paragraph 59).
98


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 (judgment of 2 December 2014, Commission v Italy, C‑196/13, EU:C:2014:2407, paragraph 114).
100


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 (judgment of 15 October 2015, Commission v Greece, C‑167/14, not published, EU:C:2015:684, paragraph 75).
101


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 (judgment of 2 December 2014, Commission v Greece, C‑378/13, EU:C:2014:2405, paragraph 76).