European Commission v Hellenic Republic.
Date: 2016-09-07
30


The Commission also points out that mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations to transpose a directive (judgment of 10 September 2009 in Commission v Greece, C‑286/08, not published, EU:C:2009:543, paragraph 51 and the case-law cited). Accordingly, a circular cannot replace a ministerial decree.
47


The first point to be noted is that, since the TFEU abolished the reasoned opinion stage in infringement proceedings under Article 260(2) TFEU, the reference date for assessing whether there has been such an infringement is the deadline set in the letter of formal notice issued in accordance with the first subparagraph of Article 260(2) TFEU (judgment of 2 December 2014 in Commission v Italy, C‑196/13, EU:C:2014:2407, paragraph 45 and the case-law cited).
53


As regards the Hellenic Republic’s argument concerning the difficulties it had been facing in complying with the obligations at issue, it should be noted that, since 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, that argument cannot be accepted (judgment of 15 October 2015 in Commission v Greece, C‑167/14, not published, EU:C:2015:684, paragraph 35 and the case-law cited).
70


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 15 October 2015 in Commission v Greece, C‑167/14, not published, EU:C:2015:684, paragraph 47).
72


In those circumstances, the Court considers that the imposition of a penalty payment on the Hellenic Republic constitutes an appropriate financial means to ensure full compliance with the judgment of 10 September 2009 in Commission v Greece (C‑286/08, not published, EU:C:2009:543) (judgment of 17 October 2013 in Commission v Belgium, C‑533/11, EU:C:2013:659, paragraph 66).
73


According to settled case law, the penalty payment must be decided upon according to the degree of persuasion needed in order for the Member State which has failed to comply with a judgment establishing a breach of obligations to alter its conduct and bring to an end the infringement established (judgment of 7 July 2009 in Commission v Greece, C‑369/07, EU:C:2009:428, paragraph 113 and the case-law cited).
74


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 (judgments of 17 October 2013 in Commission v Belgium, C‑533/11, EU:C:2013:659, paragraph 68, and of 4 December 2014, Commission v Sweden, C‑243/13, not published, EU:C:2014:2413, paragraph 50).
75


The Commission’s proposals 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 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 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 (judgment of 2 December 2014 in Commission v Greece, C‑378/13, EU:C:2014:2405, paragraph 52).
76


For the purposes of determining the amount of penalty payments, the basic criteria which must be taken into consideration in order to ensure that penalty payments have coercive effect and that EU law is applied uniformly and effectively are, in principle, the seriousness of the infringement, its duration and the capacity of the Member State concerned to pay. 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 the urgency of compliance by the Member State concerned with its obligations (judgment of 15 October 2015 in Commission v Greece, C‑167/14, not published, EU:C:2015:684, paragraph 54 and the case-law cited).
77


As regards, in the first place, the seriousness of the infringement, it should be borne in mind, as the Court has held, that the obligation to dispose of waste without endangering human health and without harming the environment is inherent in the key objectives of EU environmental policy as set out in Article 191 TFEU. The failure to comply with the obligation under Article 4 of Directive 2006/12 could, by the very nature of that obligation, endanger human health directly and harm the environment and must be regarded as particularly serious (see judgment of 2 December 2014 in Commission v Greece, C‑378/13, EU:C:2014:2405, paragraph 54).
80


As regards, in the second place, the duration of the infringement since delivery of the initial judgment establishing a failure to fulfil obligations, it should be recalled that that must be assessed by reference not to the date on which the infringement proceedings were brought under Article 260(2) by the Commission, but the date on which the Court assesses the facts in the context of those proceedings (see the judgment of 2 December 2014 in Commission v Greece, C‑378/13, EU:C:2014:2405, paragraph 57 and the case-law cited). In the present case, the duration of the infringement, namely more than six years from the date of delivery of the judgment of 10 September 2009 in Commission v Greece (C‑286/08, not published, EU:C:2009:543), is considerable.
81


In the third place, as regards the capacity of the Member State concerned to pay, it is appropriate to take account of the Hellenic Republic’s argument that its gross domestic product (GDP) has declined since 2012. The Court has held that it is necessary to take account of recent trends in the GDP of a Member State at the time of the Court’s examination of the facts (judgment of 2 December 2014 in Commission v Greece, C‑378/13, EU:C:2014:2405, paragraph 58).
83


It should be noted in this connection that, even if, in order to ensure full compliance with the Court’s judgment, the penalty payment should 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 (judgment of 2 December 2014 in Commission v Greece, C‑378/13, EU:C:2014:2405, paragraph 60 and the case-law cited).
97


The first point to note 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 of 2 December 2014 in Commission v Greece, C‑378/13, EU:C:2014:2405, paragraph 71).
98


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 (judgment of 13 May 2014 in Commission v Spain, C‑184/11, EU:C:2014:316, paragraph 59 and the case-law cited).
99


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 in Commission v Italy, C‑196/13, EU:C:2014:2407, paragraph 114).
101


In those circumstances, it is for the Court, in the exercise of its discretion, to fix the amount of that lump sum so that it is, first, appropriate to the circumstances and, second, proportionate to the infringement (judgment of 7 July 2009 in Commission v Greece, C‑369/07, EU:C:2009:428, paragraph 146).
102


The relevant factors in this respect include matters such as the length of time for which the breach of obligations has persisted since the judgment establishing it was delivered and the seriousness of the infringement (judgment of 17 November 2011 in Commission v Italy, C‑496/09, EU:C:2011:740, paragraph 94).