Sanction

If a Member State does not comply with the Court’s judgment within a reasonable time, the Commission may open a new infringement proceeding under Article 260(2) TFEU. However, it may this time specify a lump sum or penalty that it believes, with regard to the circumstances, the Member State concerned shall pay.

The Commission has published guidelines for the calculation of such financial penalties.^{[1] [2]}2 According to these, determination of the sanction is based on three criteria: the seriousness of the infringement, its duration, and the need for a deterrent penalty to prevent relapse.⁴³

The new procedure is similar to the first one, but after the Treaty of Lisbon both a notification and then a reasoned opinion are no longer required before an infringement action before the Court of Justice can be initiated. It is enough that the Commission gives the State concerned the opportunity to submit its views before proceedings are brought (Art 260 (2) TFEU). If the Court finds that the Member State has not complied with its judgment, it may impose a lump sum or penalty payment (Art 260 (3) TFEU). The Court is not bound by what the Commission claims regarding the nature and extent of the sanction and merely sees the Commission’s suggestions as a point of reference.44 This has been criticised as contrary to the principle of division of competences between the political and legal powers within the EU.45

When determining the penalty payment, the Court must consider the duration of the infringement, its degree of seriousness, and the ability of the Member State concerned to pay. In applying those criteria, the Court is required to have regard to the effects on public and private interests of failure to comply and to the urgency with which the Member State concerned must be induced to fulfil its obligations.4^{[3] [4]}

The Court has held that where failure to comply with a judgment is likely to harm the environment, the protection of which is one of the EU’s policy objectives, such a breach is of a particularly serious nature.47

According to the Court, a financial penalty—which concerns the situation in the future—can be particularly suited to induce a Member State to urgently cease an infringement which, in the absence of such a measure, would tend to persist. A penalty payment should thus exercise a degree of pressure needed in order to persuade the defaulting Member State to comply with the previous judgment.

Imposition of a lump sum—which can be considered to relate to what has already happened when the judgment is delivered—is based rather on an assessment of the impact of the Member State’s failure to fulfil its obligations on private and public interests. A lump sum is motivated in particular when the breach has persisted for a long time after pronouncement of the judgment in which it was established.4^[5]

In one case the Commission may in connection with infringement proceedings indicate directly the lump sum or penalty payment that the Member State should pay. This is when the Commission acts because it considers that a Member State has not complied with its obligation to notify measures transposing a directive adopted under a legislative procedure. There is no need in such cases for a separate action after the Court has held that the State has failed to implement a directive in due time and inform the Commission thereof. In such a case, the Court may not impose on the Member State a higher amount than that indicated by the Commission.^[6] (Art 260 (3) TFEU)

The possibility to order a Member State to pay a penalty for breach of obligations was introduced in the Treaty of Maastricht in 1993. The environment was among the first areas in which the Commission chose to make use of this new possibility. The Court of Justice’s first judgment containing a decision on financial penalties against a Member State was announced in 2000.^[7] The case concerned Greece’s failure to fulfil its obligations under two former waste directives. The Court had already in 1992 found that Greece, by not disposing of toxic and dangerous waste in the Chania region in Crete and not closing an illegal landfill in a deep ravine, had violated those directives.^{[8] [9] [10]} As Greece had not taken the necessary measures to comply with the judgment of 1992 and to correct its legislation, the Court imposed a penalty payment of EUR 20,000 to the Commission for each day that ended without the actions required to comply with the judgment.52 In February 2001 Greece took measures to implement the Court’s first judgment and paid EUR 5,400,000 in liquidated damages for the period from July 2000 to March 2001.

It is debatable how effective infringement proceedings are. The fact that infringement procedures are often repeated in similar cases suggests that they are not so effective and dissuasive5³—at least not with respect to other Member States in the same or a similar situation as the one against which an action is brought.

• [1] 2 Communication from the Commission—Application ofArticle 228 of the EC Treaty, SEC(2005)1658 final. 43 Ibid (n 42) 2. See also Communication from the Commission—Updating of data used to calculate lump sum and penalty payments to be proposed by the Commission to the Court of Justice ininfringement proceeding (17 September 2014) C(2014) 6767 final. 44 Case C-304/02 Commission v France ECLI:EU:C:2005:444, paras 62—63.
• [2] 45 Wenneras The Enforcement of EC Environmental Law (n 26) 227.
• [3] 43 Case C-610/10 Commission v Spain ECLI:EU:C:2012:781, paras 117—19 and the case lawcited there.
• [4] 47 Case C-279/11 Commission v Ireland ECLI:EU:C:2012:820, para 72 and the case law citedthere.
• [5] 48 Case C-304/02 Commission v France (n 44), para 81.
• [6] See further Communication from the Commission—Implementation of Article 260(3) TFEU(11 November 2010) SEC (2010) 1371 final.
• [7] CaseC-387/97 Commission v Greece ECLI:EU:C:2000:356.
• [8] Case C-45/91 Commission v Greece ECLI:EU:C:1992:164.
• [9] 52 Case C-387/97 Commission v Greece (n 50), para 99.
• [10] Wenneras The Enforcement of EC Environmental Law (n 26) 251.