European Commission v Hellenic Republic.
Date: 2014-12-02
26. The first point to be noted is that, according to the settled case-law of the Court concerning Article 228(2) EC, the reference date for assessing whether there has been a failure to fulfil obligations under Article 228(2) EC is the deadline set in the reasoned opinion issued under that provision (see judgments in Commission  v France , C‑304/02, EU:C:2005:444, paragraph 30, and in Commission  v Spain , C‑610/10 EU:C:2012:781, paragraph 66).
27. 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 such an infringement is the deadline set in the letter of formal notice issued under that provision (judgment in Commission  v Spain , EU:C:2012:781, paragraph 67).
29. As regards the Hellenic Republic’s argument concerning the difficulties it had been facing in connection with the closure and cleaning up of all the illegal landfills at issue, it should be recalled that, according to settled case-law, 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 (see judgment in Commission  v Italy , C‑496/09, EU:C:2011:740, paragraph 87 and case-law cited; see also, to that effect, judgment in Commission  v Spain , C‑278/01, EU:C:2003:635, paragraph 31). In the light of that case-law, the Hellenic Republic’s argument cannot succeed.
33. It should be noted at the outset that, having recognised that the Hellenic Republic has not complied with its judgment in Commission  v Greece (EU:C:2005:592), the Court may, pursuant to the second subparagraph of Article 260(2) TFEU, impose a lump sum and/or penalty payment on that Member State.
47. 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 in Commission  v Belgium , C‑533/11, EU:C:2013:659, paragraph 64 and case-law cited).
50. In those circumstances, the Court finds that the imposition of a penalty payment on the Hellenic Republic constitutes an appropriate financial means of ensuring full compliance with the judgment in Commission  v Greece (EU:C:2005:592) (see, to that effect, judgment in Commission  v Ireland , C‑374/11, EU:C:2012:827, paragraph 35 and case-law cited).
51. However, given the progress towards full compliance with the judgment in Commission  v Greece  (EU:C:2005:592) and the observations submitted by the Hellenic Republic to the Court, it cannot be ruled out that, on the date of delivery of the present judgment, full compliance with the judgment in Commission  v Greece (EU:C:2005:592) will have taken place. Accordingly, the periodic penalty must be imposed only if the failure to fulfil obligations persists on the date of delivery of the present judgment.
52. 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 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 (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.
53. 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 urgent need for the Member State concerned to be induced to fulfil its obligations (see Commission  v Luxembourg , C‑576/11, EU:C:2013:773, paragraph 47 and case-law cited).
54. 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 75/442 could, by the very nature of that obligation, endanger human health directly and harm the environment and must be regarded as particularly serious (judgment in Commission  v Greece , EU:C:2000:356, paragraph 94).
55. It should be noted that, in the present case, the number of illegal landfills covered by the failure to fulfil obligations on the date that the Court examined the facts (293, 70 of which have not yet been closed down) is considerable. However, that number is significantly lower than the number of illegal landfills which, according to figures provided by the Hellenic Republic itself, were in operation in February 2004 when the first infringement proceedings were brought before the Court, that is to say, 1 125 illegal landfills (judgment in Commission  v Greece , EU:C:2005:592, paragraph 8).
56. It is clear that, in the present case, the extent of the damage which, on the date of delivery of the present judgment, continues to be inflicted on human health and the environment because of the infringement depends in large part on the number of individual sites affected by that infringement and especially on the number of illegal landfills still in operation. Accordingly, that damage is less extensive than the damage to human health and the environment caused by the initial failure to fulfil obligations established in the judgment in Commission  v Greece (EU:C:2005:592).
57. As regards, in the second place, the duration of the infringement, It should be recalled that 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 Portugal , C‑70/06, EU:C:2008:3, paragraph 45 and case-law cited). In the present case, the duration of the infringement — more than nine years from the date of delivery of the judgment in Commission v Greece  (EU:C:2005:592) — is considerable.
58. 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 GDP has declined since 2010. 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 in Commission  v Ireland , C‑279/11, EU:C:2012:834, paragraph 78).
60. 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 (see, to that effect, judgments in Commission v Spain , EU:C:2003:635, paragraphs 43 to 51; in Commission  v Italy , EU:C:2011:740, paragraphs 47 to 55; and in Commission  v Belgium , EU:C:2013:659, paragraphs 73 and 74).
62. As regards the latter point, it is appropriate that the decreasing penalty payment be established on a six-monthly basis, in accordance with the Commission’s proposal, in order to enable the Commission to assess the state of progress of the measures for compliance with the judgment in Commission  v Greece  (EU:C:2005:592), by reference to the situation prevailing at the end of the period in question (see, to that effect, judgment in Commission  v Italy , EU:C:2011:740, paragraph 54).
71. 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 in Commission  v Greece , C‑369/07, EU:C:2009:428, paragraph 143).
72. 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 judgment in Commission  v Spain , C‑184/11, EU:C:2014:316, paragraph 59 and case-law cited).
73. The imposition of a lump sum payment 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. In that connection, that provision confers a wide discretion on the Court in deciding whether to impose such a penalty (judgment in Commission  v Spain , C‑610/10, EU:C:2012:781, paragraph 141).
74. In the present dispute, all the legal and factual circumstances which led to the infringement established and, in particular, the very high number of illegal landfills involved in that infringement, under the terms of the judgment in Commission  v Greece  (EU:C:2005:592), delivered in October 2005 — that is to say, 1 125 landfills, 293 of which had not, in May 2014, yet been closed down and/or cleaned up — indicate 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.
75. Accordingly, 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 in Commission  v Greece , EU:C:2009:428, paragraph 146).
76. 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 Commission  v Italy , EU:C:2011:740, paragraph 94).