Commission of the European Communities v Kingdom of Spain.
Date: 2003-11-25
27. Article 228 EC does not specify the period within which the judgment must be complied with. However, in accordance with settled case-law, the importance of immediate and uniform application of Community law means that the process of compliance must be initiated at once and completed as soon as possible (Case C-387/97  Commission  v  Greece  [2000] ECR I-5047, paragraph 82, and case-law cited).
31. The considerations relied on by the Spanish Government relating to the complexity and length of operations necessary to comply with the judgment in  Commission  v Spain  cannot therefore lead to this application being dismissed.
41. In that connection it must be pointed out that the Commission ' s suggestions cannot bind the Court and merely constitute a useful point of reference. In exercising its discretion, it is for the Court to fix the lump sum or penalty payment that is appropriate to the circumstances and proportionate both to the breach that has been found and to the ability to pay of the Member State concerned (see  Commission  v  Greece , cited above, paragraphs 89 and 90).
42. Clearly a penalty payment is likely to encourage the Member State in infringement to put an end as soon as possible to the breach that has been found. For the purposes of determining the penalty payment in this case it is, first of all, necessary to consider the frequency of the proposed penalty payment; secondly, whether its amount should stay the same or decrease; and thirdly, the exact calculation of its amount.
43. As regards the frequency of the proposed penalty payment in this case, it should be noted that, under Article 13 of the Directive, as amended, the state of bathing water is assessed on an annual basis. Pursuant to that provision the Member States are required to send to the Commission a report on the implementation of the Directive every year. The report must be made to the Commission before the end of the year in question.
44. It follows that any finding that the infringement has been brought to an end can only occur annually when those reports are submitted.
45. A daily penalty payment could therefore be due for a period during which the requirements imposed by the Directive have already been met and even though it is only possible to ascertain subsequently that the Directive has been implemented. The Member State could therefore be required to pay the penalty for periods in which the infringement has in fact ended.
46. The penalty payment must therefore be imposed not on a daily basis but on an annual basis, following submission of the annual report relating to the implementation of the Directive by the Member State concerned.
47. With regard to the unchanging nature of the amount of the penalty payment proposed by the Commission, it must be observed that it is particularly difficult for the Member States to achieve complete implementation of the Directive, as the Advocate General has pointed out at points 66 and 67 of his Opinion.
48. In the light of that particular factor, it is conceivable that the defendant Member State might manage significantly to increase the extent of its implementation of the Directive but not to implement it fully in the short term. If the amount of the penalty payment were to stay the same it would continue to be due in its entirety for as long as the Member State concerned had not achieved complete implementation of the Directive.
49. In those circumstances, a penalty which does not take account of the progress which a Member State may have made in complying with its obligations is neither appropriate to the circumstances nor proportionate to the breach which has been found.
50. In order for the penalty payment to be appropriate to the particular circumstances of the case and proportionate to the breach which has been found, the amount must take account of progress made by the defendant Member State in complying with the judgment in  Commission  v  Spain . To that end it is necessary to require that Member State to pay annually an amount calculated according to the percentage of bathing areas in Spanish inshore waters which do not yet conform to the mandatory values laid down under the Directive.
51. The payment will be due from the time when the quality of bathing water achieved in the first bathing season following delivery of this judgment is ascertained and, if appropriate, at the time when it is subsequently ascertained annually.
52. As regards the amount of the fine, the basic criteria which must be taken into account are, in principle, the duration of the infringement, its degree of seriousness and the ability of the Member State to pay (see  Commission  v  Greece , paragraph 92).
57. It must further be observed that the purpose of bringing bathing water into conformity with the limit values of the Directive is to protect public health and the environment. In so far as the breach found at paragraph 35 of this judgment can endanger human health and damage the environment it is clearly of significance.
59. The Commission ' s proposal to multiply a basic amount by a coefficient of 11.4 based on the gross domestic product of the Kingdom of Spain and on the number of votes it has in the Council is an appropriate way of reflecting that Member State ' s ability to pay, while keeping the variation between Member States within a reasonable range (see  Commission  v  Greece , paragraph 88).