Commission of the European Communities v French Republic.
Date: 2008-12-09
21. Although Article 228 EC does not specify the period within which a judgment must be complied with, 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 (see, inter alia, Case C‑278/01 Commission v Spain  [2003] ECR I-14141, paragraph 27 and the case-law cited).
22. Moreover, the reference date for assessing whether there has been a failure to fulfil obligations under Article 228 EC is the date of expiry of the period prescribed in the reasoned opinion issued under that provision (see, inter alia, Case C‑503/04 Commission  v Germany  [2007] ECR I‑6153, paragraph 19 and the case-law cited).
27. As is clear from established case‑law, the imposition of a penalty payment pursuant to Article 228 EC, the purpose of which, as reiterated by the Court on numerous occasions, is one of coercion with regard to the ongoing failure to comply (see, inter alia, Case C‑387/97 Commission v Greece [2000] ECR I‑5047, paragraphs 90 and 92), is, in principle, justified only in so far as the failure to comply with an earlier judgment of the Court persists (see, inter alia, to that effect, Case C‑119/04 Commission v Italy  [2006] ECR I‑6885, paragraphs 45 and 46, and Commission  v Germany , paragraph 40).
58. While the imposition of a penalty payment seems particularly suitable for the purpose of inducing a Member State to put an end as soon as possible to a breach of obligations which, in the absence of such a measure, would tend to persist, the imposition of a lump sum is based more 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 since the judgment initially establishing it was delivered (Case C‑304/02 Commission  v France , paragraph 81).
59. It is for the Court, in each case, in the light of the circumstances of the case before it and the degree of persuasion and deterrence which appears to it to be required, to determine the financial penalties appropriate for making sure that the judgment which previously established the breach is complied with as swiftly as possible and preventing similar infringements of Community law from recurring (Case C‑304/02 Commission  v France , paragraph 97).
61. With regard to the proposals in the 2005 Communication for the imposition of lump sum payments relied on by the Commission in this case, it must be borne in mind that, while guidelines such as those in the Commission’s communications may indeed help to ensure that the Commission acts in a manner that is transparent, foreseeable and consistent with legal certainty, the fact nevertheless remains that such rules cannot bind the Court in the exercise of the power conferred on it by Article 228(2) EC (see, in particular, Case C‑304/02 Commission  v France , paragraph 85 and the case‑law cited).
62. The decision whether to impose a lump sum payment must, in each individual case, depend on all the relevant factors pertaining to both the particular nature of the infringement established and the individual conduct of the Member State involved in the procedure instigated pursuant to Article 228 EC.
63. The wording of Article 228 EC does not indicate, any more than does its purpose mentioned above, that an order for the payment of a lump sum should be made automatically, as the Commission contends in the 2005 Communication. By providing that the Court ‘may’ impose a lump sum payment or a penalty payment on the defaulting Member State, that provision confers a wide discretion upon the Court in deciding whether it is necessary to impose such sanctions.
64. If the Court decides to impose a penalty payment or lump sum payment, it must do so, in exercising its discretion, 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 Commission v Spain , paragraph 41 and the case‑law cited). More specifically, as regards the imposition of a lump sum payment, the relevant factors to be taken into account include, in particular, factors such as how long the breach of obligations has persisted since the judgment which initially established it was delivered and the public and private interests involved (see Case C‑304/02 Commission  v France , paragraph 114).
69. As submitted by the Commission, where a Member State repeatedly engages in unlawful conduct in such a manner in a specific sector governed by Community rules, this may be an indication that effective prevention of future repetition of similar infringements of Community law may require the adoption of a dissuasive measure, such as a lump sum payment.
72. As to the contention, which is in fact substantiated by the file submitted to the Court, that the outdoor cultivation of GMOs has provoked and continues to provoke violent demonstrations in France, entailing, inter alia, the uprooting of plants, and that the delay in implementing the judgment in Case C‑419/03 was attributable, in particular, to the concern that guidance should be given to the Parliament in its work and a more ambitious reform should be undertaken than that required under Directive 2001/18, it is necessary first of all to point out 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 Community law (see, inter alia, Commission  v Italy , paragraph 25). In particular, even on the assumption that the social unrest referred to by the French Republic is in fact attributable in part to the implementation of Community rules, a Member State may not plead difficulties of implementation which emerge at the stage when a Community measure is put into effect, including difficulties relating to opposition on the part of certain individuals, to justify a failure to comply with obligations and time-limits laid down by Community law (see Commission  v Greece , paragraphs 69 and 70).
75. As stated at recitals 4 and 5 in the preamble to Directive 2001/18, living organisms, whether released into the environment in large or small amounts for experimental purposes or as commercial products, may reproduce in the environment and cross national frontiers, thereby affecting other Member States. The effects of such releases on the environment may be irreversible. The protection of human health and the environment also requires that due attention be given to controlling risks from the deliberate release into the environment of GMOs.
77. As previously stated, where failure to comply with a judgment of the Court is likely to harm the environment and endanger human health, the protection of which is, indeed, one of the Community’s environmental policy objectives, as is apparent from Article 174 EC, such a breach is of a particularly serious nature (see, to that effect, Commission v Greece , paragraph 94, and Commission  v Spain , paragraph 57).