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The scope of the provision

A second issue raised by the text of Article 260(3) TFEU concerns the meaning of the requirement which makes recourse to the new mechanism available: the Member State’s failure to ‘notify measures transposing a directive’.[1] The wording of the new provision was considered odd by many: the mechanism does not seem to target a substantive failure (that of not transposing a directive), but a procedural failure (that of not communicating the transposition measures to the Commission). Nevertheless, it cannot be disputed that the more serious breach is the former, not the latter.

In that respect, four lines of interpretation were suggested. The most restrictive reading of the provision was proposed by some Member States who lodged their observations before the Court. They relied on a strictly literal interpretation of the new provision: put simply, a failure to communicate is a failure to communicate. No breach other than total inactivity of the Member States could, in their view, be subject to the procedure under Article 260(3) TFEU. A broader interpretation was put forward by the Commission in its 2011 Communication. The Commission took the view that Article 260(3) TFEU cannot be limited to failures to comply with the procedural obligation of notification, but had to also cover certain failures to transpose the directives. In particular, instances of incomplete or partial transposition of directives could be caught by the new provision, whereas cases of erroneous transposition of directives had to be dealt with under the standard procedures.

At the other end of the spectrum, one could find the even broader interpretation suggested by AG Wathelet and by AG Tanchev in the above-mentioned Opinions. In their view, the distinction made by the Commission between cases of incomplete or partial transposition and cases of incorrect transposition was unworkable.36 They thus proposed to interpret Article 260(3) TFEU as encompassing also cases of incorrect transposition of directives.37 A number of academic writers too suggested that, despite the terminology employed, Article 260(3) TFEU could be used against some or all failures to transpose directives.38 Finally, a fourth interpretation - that is middle ground between the position expressed by the Member States referred to above, and that defended by the Commission - had been suggested in legal scholarship,39 and embraced by AG Szpunar.40 According to this final approach, based mainly on a textual and historical interpretation of Article 260(3 ) TFEU, the new mechanism could only be used against Member States’ failure to notify transposition measures. However, that failure would not be limited to instances of total inactivity of the Member State in question but include those cases where, despite some measures having been formally notified to the Commission, the information communicated fell short of the requirements of clarity, precision and completeness that are necessary for the Commission to fulfil its role as guardian of the Treaties.

In its judgment of 8 July 2019, the Court formally endorsed the latter approach. However, by interpreting the obligation of the Member States to communicate the transposition measures to the Commission in a very broad and consequential manner, the Court came, in substance, relatively close to the position expressed by the Commission. Schematically, the different interpretations proposed before the judgment of the Court, and the one eventually retained by the Court, can be illustrated as follows.

56 The problem was identified also by AG Szpunar: see paras 71-73 of the Opinion in Commission v. Belgium. Similarly, P. Wenneräs, ‘Sanctions against Member States under Article 260 TFEU: Alive, but not kicking?’ (2012) Common Market Law Review 167; and N. Wahl, L. Prete, supra note 28,176.

’'See, respectively, paras 114-145 of the Opinion of AG Wathelet in Commission v. Poland and paras 41-71 of the Opinion of AG Tanchev in Commission v. Spain.

îsSee, with different nuances, T. Joris, S. Van der Jeught, ‘Tien jaar financiële sancties in de Europese inbreukprocedure ex artikel 260, lid 2 VWEU - Tijd voor een stand van zaken’ (2010) Tijdschrift voor Europees en economisch recht 435; T. Materne, La Procédure en Manquement d’Etat - Guide à la lumière de la Jurisprudence de la Cour de Justice de ¡’Union européenne (Lar-cier, 2010), 42-43; S. Van der Jeught, ‘L’action en manquement “renforcée”: sanctions pécuniaires en cas de non-transposition des directives européennes’ (2011) Journal de droit européen 68-70; S. Peers, supra note 32, 39; and D. Blanc, ‘Les procédures du recours en manquement, le traité, le juge et le gardien: entre unité et diversité en vue d’un renforcement de l’Union de droit’, in Ma-hieu (ed.), Contentieux du droit de l’Union européenne (Larcier, 2014) 446-447.

M Again, with different nuances, see N. Wahl, L. Prete, supra note 28, 174-179; and T. Van Rijn, supra note 28, 585. More generally, emphasizing the importance of the wording of the provision: U. Everling, ‘Rechtsschutz in der Europäischen Union nach dem Vertrag von Lissabon’ (2009) Europarecht 82; and D. Simon. ‘Sanctions pécuniaires’, Revue Europe, March 2011, 15.

',0 Paras of the 58-81 of the Opinion in Commission v. Belgium.

Member States

AG Szpunar

Court of Justice

European Commission

AGs Watlielet and Tauchev

More restrictive approach

Everting (2009)

Simon (2011) Wahl, Prete (2014) Van Rijn (2016)

Joris, Van der Jeught (2010) Mateme (2010) Van der Jeught (2011) Peers (2012) Blanc (2014) Wenneräs (2017)

Broader approach

In its judgment, the Court on the one hand rejected the formalistic arguments expressed by some of the Member States: their restrictive reading would compromise the objective pursued by the new provision. On the other hand, the Court also dismissed the more extensive interpretation proposed by the Commission: the wording of the provision, its genesis and the broader context make it very clear that it was intended to be applied in cases of failures to notify, and not to adopt, transposition measures. The Court then explained that the proper interpretation of the provision must ensure its effectiveness, while protecting the right of defence of the Member States and enabling the Court to check the existence and gravity of the failures alleged by the Commission. Accordingly, the notification obligation referred to in Article 260(3) TFEU must be understood as requiring Member States to indicate, for each provision of a directive, the corresponding provisions of national law. When a Member State has satisfied this condition, where appropriate through the use of corresponding tables, it is for the Commission to prove that the measures notified are manifestly inexistent or do not cover the whole territory of the Member State.41

The an and quantum of the sanctions

Having clarified that, the Court went on to deal with other outstanding issues. With regard to the an and quantum of the sanctions, the Court indicated that principles developed under Article 260(2) TFEU are fully applicable in the context of the new mechanism. In particular, the Court stated that the imposition of penalty payment is justified when the infringement continues up until the Court’s examination of the facts.[2] With regard to the determination of the amount of the sanction, the Court appeared to follow the same criteria used in the context of proceedings under Article 260(2) TFEU. In the case at hand, in the light of the gravity and duration of the infringement, the Court decided to impose penalty payments of EUR 5 000 per day. That amount was not set by following a mathematical formula, such as that used by the Commission, but according to an ex aequo et bono approach. The Court then rejected Belgium’s request to set a degressive penalty payment which could take into account the progressive adoption and notification of the transposition measures. According to the Court, that measure would have limited the effectiveness of the sanction imposed. Finally, the Court decided that, if the failure persisted at the date of delivery of the judgment, the penalty payments were to take effect from that very moment, and not at a later date as Belgium had asked.

  • [1] See P. Pescatore, ‘Monisme, dualisme et «effet utile» dans la jurisprudence de la Cour de justice de la Communauté européenne’, in Colneric and Others (eds), Une communauté de droit : Festschrift fur Gil Carlos Rodríguez Iglesias (Nomos, 2003) 340; and N. Wahl, L. Prete, supra note 28, 179 and 185. See also Opinion of AG Szpunar in Commission v. Belgium, paras 7 and 74-75. 2 52 A second requirement is that the directive has been ‘adopted under a legislative procedure’. The interpretation of this condition, however, gives rise to less doubts and, in any event, was not raised in the proceedings in question. On this issue, see generally Opinion of AG Wathelet in Case C-320/13, Commission v. Poland* paras 95-103; and S. Peers, ‘Sanctions for Infringement of EU Law after the Treaty of Lisbon’ (2012) European Public Law 40-41. 3 See e.g. A. Arnull, The European Union and Its Court of Justice (2"J ed., OUP, 2006) 51. 4 See Case C-543/17, Commission v. Belgium, para. 39. 5 Para 19 of the 2011 Communication, supra note 22.
  • [2] ■*' Paras 48-59 of the judgment. 2 The precise meaning of this expression is, however, not entirely clear. It should probably be understood as referring to the start of the Court’s deliberation. This normally corresponds to the end of the oral procedure (that is, the delivery of the AG Opinion if there is one, otherwise the end of the oral hearing). However, where the Court proceeds to judgment without an hearing and an Opinion, it corresponds to the end of the written procedure.
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