European Commission v Kingdom of Sweden.
Date: 2013-05-30
16. In that respect, 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 (Case C‑610/10 Commission v Spain  [2012] ECR I‑0000, paragraph 67, and Case C‑374/11, Commission v Ireland  [2012] ECR I‑0000, paragraph 19).
40. As a preliminary point, it should be borne in mind that the imposition of a lump sum payment must, in each individual case, depend on all the relevant factors pertaining both to the particular nature of the infringement established and to the conduct of the Member State involved in the procedure initiated under Article 260 TFEU. In that respect, that provision confers a wide discretion on the Court in deciding whether or not to impose such a penalty ( Commission v Spain , paragraph 141, and Commission v Ireland , paragraph 47).
41. Accordingly, the Commission’s suggestions cannot bind the Court and merely constitute a useful point of reference. Similarly, guidelines such as those contained in the communications of the Commission are not binding on the Court but contribute to ensuring that the action brought by the Commission is transparent, foreseeable and consistent with legal certainty (see Case C‑369/07 Commission v Greece  [2009] ECR I‑5703, paragraph 112).
42. Regarding, first, the principle of imposing a lump sum pursuant to Article 260 TFEU, it should be borne in mind that that principle is essentially based 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 Case C‑121/07 Commission v France  [2008] ECR I‑9159, paragraph 58).
45. Concerning, second, the amount of that lump sum payment, it should be borne in mind that it is for the Court to determine that amount 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 (see, to that effect, Commission v Greece , paragraph 146, and Commission v Spain , paragraph 143).
46. Relevant considerations in this respect include factors such as the seriousness of the infringement, and the length of time for which the breach of obligations complained of has persisted since the judgment establishing it was delivered (see, to that effect, Commission v Spain , paragraph 144).
47. First, regarding the seriousness of the failure to fulfil obligations in view of the importance of the provisions of EU law infringed, it should be borne in mind that Directive 2006/24 covers the activities of providers of electronic communications services within the internal market and that the European Union legislature pursues the objective of safeguarding the proper functioning of that market through the adoption of harmonised rules in the field of retaining electronic communications data (see, to that effect, Case C‑301/06 Ireland v Parliament and Council  [2009] ECR I‑593, paragraph 72).
54. Regarding the Kingdom of Sweden’s conduct in respect of its obligations under Directive 2006/24, the justifications put forward by that Member State pursuant to which the delay in complying with that judgment was attributable to extraordinary internal difficulties connected with specific aspects of the legislative procedure, to the extensive political debate on the transposition of Directive 2006/24, and to the issues raised in terms of difficult choices involving weighing the protection of privacy against the need to combat crime effectively cannot be upheld. As the Court has repeatedly emphasised, a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under European Union law (see, inter alia, Case C‑407/09 Commission v Greece  [2011] ECR I‑2467, paragraph 36). The same is true of a decision, such as the one made by the Swedish Parliament, to which paragraph 8 of this judgment makes reference, to postpone for a year the adoption of the draft bill intended to transpose that directive.
55. However, the fact that the Kingdom of Sweden has never failed to comply with any judgment previously given by the Court under Article 258 TFEU should be taken into account as a mitigating circumstance.
56. Second, concerning the duration of the continuation of the infringement with which this action is concerned, it should be recalled that, although Article 260 TFEU does not specify the period within which a judgment must be complied with, it is, nevertheless, beyond dispute that the action required to give effect to a judgment must be set in motion immediately and be completed as soon as possible (see, inter alia, Commission v Greece  [2011], paragraph 34).