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: Infringement Procedures and Sanctions under Art. 260 TFEU: Evolution, Limits and Future Prospects

Luca Prete*

ABSTRACT: After illustrating the evolution of the sanctioning procedures provided for in the Treaties, in the context of infringement proceedings (Articles 258 to 260 TFEU) and proceedings for interim meausres (Article 279 TFEU), the present contribution will focus on the main limitations and future prospects of those procedures, in the light of the recent decisions of the Court in Commission v Belgium (High-speed electronic communications networks) and Commission v Poland (Bialowieza Forest).

KEYWORDS: infringement proceedings - interim measures - lump sum — periodic penalty payments

SUMMARY: 5.1. Introduction. - 5.2. Evolution. - 5.2.1. Article 260(2) TFEU: nihil sub sole novum? — 5.2.2. Article 260(3) TFEU: (some) clarity at last. - The nature and purpose of the provision. - The scope of the provision. - The an and quantum of the sanctions. - 5.2.3. Article 279 TFEU: penalty payments as interim measures. - The Court’s order of 20 November 2017. - Did the Court see the full picture? - A more thoughtful reflection. - 5.3. Limits and future prospects.

: Introduction

The procedures for establishing infringements of European Union law by Member States, set out in Articles 258 to 260 TFEU, have, slowly but surely, evolved over time. This evolution is the result of actions undertaken by three main actors: the drafters of the Treaties (which have, on two occasions, amended the relevant provisions), the Court (which has, through its case-law, filled in certain gaps left by the bare Treaty provisions) and the Commission (which has progressively revised and streamlined its internal practice, and published reports and communications with a view to improving the transparency of the procedures). These developments, which

‘Référendaire at the Court of Justice of the European Union and Guest Professor at the Vrije Universiteit Brussel. The views are expressed in a purely personal capacity. The author would like to thank Roland Klages, Jacques Radoux and the editors for useful discussions and comments. This article reflects the state of the law on 31 March 2020.

have spanned more than 50 years, turned rarely used, opaque and policy-driven procedures into common, fairly transparent and highly technical ones.[1]

These observations apply especially to the standard proceedings under Article 258 TFEU. They are also, to a large extent, valid with regard to proceedings under Article 260(2) TFEU: the main provision on sanctions, introduced by the Treaty of Maastricht and subsequently amended by the Treaty of Lisbon. Starting from the first case, decided in 2000, the Court has, by end of 2019, delivered some 50 judgments under Article 260(2) TFEU. The procedure under Article 260(2) TFEU has become commonplace: cases are often heard by chambers of five judges that rule without an Opinion of the Advocate General (‘AG’).

That said, recent months have seen the Court deliver two decisions of great importance with respect to sanctions in the context of infringement proceedings. These decisions do not, however, concern procedures brought pursuant to Article 260(2) TFEU, but procedures started under Article 260(3) TFEU and under Article 279 TFEU, respectively. The most recent of those decisions - the judgment of the Grand Chamber in Commission v. Belgium (High-speed electronic communications networks) 2 - is the very first in which the Court had the opportunity to interpret and apply Article 260(3) TFEU: the new provision introduced by the Treaty of Lisbon aimed at strengthening the effectiveness of the judicial procedures against Member States for failures to transpose directives. The other decision - the order delivered by the Grand Chamber in the interim procedure Commission v. Poland (Bialowieza Forest) - is even more innovative: it makes clear that the interim measures that may be adopted under Article 279 TFEU include periodic penalty payments.

After illustrating the evolution of the sanctioning procedures provided for in the Treaties, the present contribution will focus on the main limitations and future prospects of those procedures, in the light of the aforementioned decisions of the Court.

  • [1] L. Prete, B. Smulders, ‘The Coming of Age of Infringement Proceedings’ (2010) Common Market Law Review 9. 2 Conversely, the Member State to Member State procedure under Article 259 TFEU has been used very rarely: see D. Kochenov, ‘Biting Intergovernmentalism: The Case for the Reinvention of Article 259 TFEU to Make It a Viable Rule of Law Enforcement Tool’ (2015) Hague Journal on the Rule of Law 153-174; and L. Prete, Infringement Proceedings in EU Law (Kluwer, 2017) 201-205. The last such cases adjudicated by the Court are C-591/17, Austria v. Germany, EU:C:2019:504, and C-457/18, Slovenia v. Croatia, EU:C:2020:65. 3 ’Case C-387/97, Commission v. Greece, EU:C:2000:356. 4 See e.g. Cases C-328/16, Commission v. Greece, EU:C:2018:98; C-584/14, Commission v. Greece, EU:C:2016:636; and C-576/11, Commission v. Luxembourg, EU:C:2013:773. 5 Case C-543/17, EU:C:2019:573. 6 Case C-441/17 R, EU:C:2017:877.
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