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: Article 279 TFEU: penalty payments as interim measures

In July 2017, the Commission brought infringement proceedings against Poland for possible breaches of the Habitats and Birds Directives due to the increase of active forest management operations in the Bialowieska Forest, a Natura2000 site. On the same day, the Commission also lodged an application for interim measures. Essentially, the Commission asked the Court to order the Polish authorities to halt those operations, pending the judgment in the main action, except where there was a threat to public safety. The Vice-President of the Court, owing to the risk of serious and irreparable damage for the integrity of the site, provisionally granted the requested measures, inaudita altera parte, by order of 27 July 2017.

In the following weeks, however, the Commission took the view that the Polish authorities had deliberately ignored that order, as the contested operations continued unaffected. Thus, during an hearing that took place before the Vice-President of the Court on 11 September 2017, the question arose as to whether any means exists to enforce compliance with an order issued under Article 279 TFEU. In the light of that discussion, on 13 September 2017, the Commission supplemented its

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  • 45 In the light of its low amount, the penalty payment might appear almost symbolic (compare it, for example, with that imposed in the Bialowieza Forest case: infra section II.3). However, the daily amount set by the Court is not much lower than that requested by the Commission (EUR 6 071,04).
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Generally, regarding these two approaches, see A. Kornezov, 'Imposing the Right Amount of Sanctions Under Article 260(2) TFEU: Fairness v. Predictability, or How to “Bridge The Gaps’” (2014) Columbia journal of European Law 307-331.

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Paras 60-68 and 78-93 of the judgment.

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  • 46 Respectively, Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) and Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7).

application with a request for an additional order obliging Poland to pay a periodic penalty payment if it failed to comply with the orders made in those proceedings. The case was assigned to the Grand Chamber, before which, on 17 October 2017, the parties presented oral observations.

The Court’s order of 20 November 2017

On 20 November 2017, the Court adopted the final order in the proceedings. In its order, the Court found that the requirements of fumus honi iuris and urgency were met. It thus decided that the measures provisionally granted by the Vice-President had to be maintained. With regard to the Commission’s additional application, the Court first recalled that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the final decision in the main action. To that end, Article 279 TFEU confers on the Court the power to prescribe any interim measures that it deems necessary. Although it is for the applicant to request such measures as it is considered appropriate, the Court must satisfy itself that the measures which it intends to order are sufficiently effective to achieve their aim. The Court enjoys broad discretion in that respect. If deemed appropriate, the Court may also adopt, where necessary ex officio, any ancillary measure intended to ensure that its order is complied with. Such a measure may include - the Court found - the imposition of periodic penalty payments. That measure must not be regarded as a punishment, but merely as a means to encourage the relevant Member State to comply with the order. The Court further stressed that that measure is not irreversible, as it in no way prejudices the future decision in the main action.

In the case at hand, the Court found it unnecessary to establish whether the first order had not been complied with. There was enough evidence in the case-file for doubting that Poland had complied, or that it intended to comply with the new order. Thus, if the new order were to do no more than confirm the first order, there would be a risk that its effectiveness would be limited. In such circumstances, the Court considered it necessary to ‘enhance the effectiveness’ of the interim measures ordered by providing for a periodic penalty payment to be imposed if Poland failed to comply with them immediately and fully. Poland was thus requested to send to the Commission, within 15 days, details of all measures adopted in order to comply. If the Commission was of the view that Poland had failed to comply with the order, it could request that proceedings be resumed. The Court would then give a decision by way of a new order. If the Court found an infringement, it would order Poland to pay to the Commission ‘a periodic penalty payment of at least EUR 100 000 per day’, from the date of notification of the new order until compliance was achieved, or until the judgment in the main proceedings was delivered. Accordingly, the

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Paras 89-108 of the order.

Court reserved its final decision on the Commission’s additional application.[1]

In essence, the Court’s order of 20 November 2017 is based on two main principles. First, the wording of Article 279 TFEU, which refers to 'any necessary interim measures’. Second, the principle of effectiveness: since the purpose of the procedure under Article 279 TFEU is to ensure the effectiveness of the decision to be taken in the main proceedings, the Court must have the requisite powers to guarantee such effectiveness by adopting, where necessary, ancillary measures such as periodic penalty payments. These arguments are, objectively, not unpersuasive.

  • [1] Paras 109-119 of the order. 2 Emphasis added. 3 See especially Case C-50/00 P, Unión de Pequeños Agricultores, EU:C:2002:462, paras 44-45. 4 See inter alia C.W.A. Timmermans, ‘La sanction des infractions au droit communautaire -Rapport communautaire’, FIDE Report 1992, p. 26; and L. Prete, supra note 2,396-397. 5 See Case 352/88 R, Commission v. Italy, EU:C:1989:55, para. 23.
 
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