Advocate General Ruiz-Jarabo Colomer suggests that the penalty payment to be imposed on the Hellenic Republic should be reduced to EUR 15 375 per day
The present case is the first in which the Court of Justice is to apply new provisions, introduced by the Treaty of Maastricht, which enable it to impose pecuniary sanctions on a Member State which has failed to take the necessary measures to comply with a judgment of the Court of Justice declaring that a Member State has failed to fulfil its obligations.
The facts of the case are as follows; on 7 April 1992 the Court of Justice delivered a judgment in Case C-45/91 Commission v Greece in which it held that the Hellenic Republic had failed to fulfil a number of obligations under two Community directives on waste, specifically toxic and dangerous waste disposal. At issue was the continued existence of an uncontrolled dumping site in the Kouroupitos river, Chania, Crete.
After protracted correspondence between the Commission and the Hellenic Republic in which the Commission sought to ascertain the extent to which the Greek authorities had complied with the abovementioned judgment, the Commission decided in 1997 to initiate the present proceedings in which it requested the Court to impose on the Hellenic Republic a penalty payment of EUR 24 600 per day, with effect from the date of delivery of the judgment in the present case.
There are many legal problems raised by the application of the new Treaty provisions, which is why the Advocate General has set out in his Opinion a detailed analysis of the principles involved, such as whether the penalties are criminal or administrative in nature and whether, where there are various discrete infringements, they should be separately assessed rather than assessed as a whole, thus allowing compliance to be partial or gradual and the penalty to be reduced accordingly.
In his analysis, the Advocate General also outlines the limits of the discretion of the Court of Justice so far as concerns the penalties proposed by the Commission. In his view, judicial review must be restricted to verifying the facts, ascertaining whether a manifest error of assessment has been committed, and whether the principles of proportionality and equal treatment have been observed.
In the present case, the Commission, basing itself on the seriousness of the infringement, the duration of the period of non-compliance and the "ability-to-pay" factor, proposed in its application that a penalty of EUR 24 600 per day be imposed on the Hellenic Republic in respect of the failure of the Hellenic Republic to fulfil its obligations as a whole under a number of articles of the relevant Community directives. Subsequently, in reply to a request from the Court of Justice to consider the possibility of treating separately each of the infringements attributed to the Hellenic Republic, the Commission proposed a set of penalties in respect of the separate provisions which had been infringed, amounting to a total of EUR 32 800 per day.
If the Commission's second proposal were to be accepted, that difference in the amounts (which was not explained by the Commission) would require a fresh assessment, an option which the Advocate General discards in favour of the principle that administrative acts should not be arbitrary and that the less onerous of two penalties should be preferred.
The Advocate General thus examined the Commission's proposal that a penalty of EUR 24 600 per day be imposed and, after assessing the various factors in the present case, concluded that it was appropriate inasmuch as there has been no manifest error of assessment or failure to observe the principles of proportionality and equal treatment on the part of the Commission.
None the less, on the grounds that it was preferable to individually assess the extent to which each of the four obligations had been fulfilled, since they were sufficiently autonomous to allow for separate compliance, the Advocate General went on to weigh up the relative seriousness of each of the infringements, with the aim of adjusting the amount of the relevant penalties. However, since failure to fulfil two of the obligations in question brings in its wake a failure to fulfil the other two, the Advocate General proposed that the amount be reduced and that there be imposed on the Hellenic Republic a penalty payment of EUR 15 375 per day, with effect from notification to the Hellenic Republic of the Court's judgment in the present case and until the judgment of 7 April 1992 is fully complied with.
It is the duty of the Advocate-General to assist the Court of Justice by delivering reasoned Opinions containing a proposal as to the way in which the Court of Justice should, in his view, resolve the case before it. The Advocate General acts with complete impartiality and independence; the Court of Justice is not bound by the Advocate General's Opinion.
Solely for media use, unofficial document not binding on the Court of Justice. Available in German, Spanish, French, English and Greek.
For the full text of the Opinion, please consult our Internet site at: www.curia.eu.int
For further information please contact Fionnuala Connolly, Tel: (352) 43 03 3366 fax: (352) 43 03 2731