Case T-33/09

Portuguese Republic

v

European Commission

(Non-compliance with a judgment of the Court of Justice establishing a failure to fulfil obligations – Penalty payment – Claim for payment – Repeal of the legislation at issue)

Summary of the Judgment

1.      Procedure – Division of jurisdiction between the Court of Justice and the General Court – Action for annulment brought by a Member State against a decision of the Commission fixing the amount of the penalty payment due pursuant to a judgment of the Court of Justice

(Arts 225(1), first para., EC, 228(2) EC and 230 EC)

2.      Actions for failure to fulfil obligations – Judgment of the Court of Justice finding a breach of the obligation to comply with a judgment and imposing a penalty – Competence of the Commission to calculate the penalty payment determined by the Court of Justice – Limits

(Arts 226 EC to 228 EC)

1.      The EC Treaty does not make any specific provision regarding the settlement of disputes that would arise between a Member State and the Commission when recovering amounts that are due to the budget of the European Union pursuant to a judgment given by the Court of Justice under Article 228(2) EC, ordering a Member State to pay a penalty to the Commission.

It follows that the remedies established by the EC Treaty apply and that the decision, by which the Commission determines the amount due from the Member State in terms of the penalty payment which it has been ordered to make, can be the subject of an action for annulment pursuant to Article 230 EC. Therefore, the General Court has jurisdiction to hear and determine such an action, in accordance with the provisions of the first subparagraph of Article 225(1) EC.

However, in exercising such jurisdiction, the General Court cannot impinge on the exclusive jurisdiction reserved to the Court of Justice under Articles 226 EC and 228 EC. The General Court may not rule, therefore, in the context of an action for annulment based on Article 230 EC and brought against a decision of the Commission relating to the enforcement of such a Court of Justice judgment, on a question relating to the infringement by the Member State of its obligations under the EC Treaty that has not been previously decided by the Court of Justice.

(see paras 62-67)

2.      In the context of enforcing a judgment of the Court of Justice imposing a penalty payment on a Member State, the Commission must be able to assess the measures adopted by the Member State to comply with the judgment of the Court of Justice in order, inter alia, to prevent the Member State which has failed to fulfil its obligations from simply taking measures that, in reality, have the same content as those that were the subject of the judgment of the Court of Justice. However, the exercise of that power of appraisal can prejudice neither the rights – and in particular the procedural rights – of the Member States, as they result from the procedure set out in Article 226 EC, nor the exclusive jurisdiction of the Court of Justice to rule on the compliance of national legislation with Community law. The rights and duties of Member States may be determined and their conduct appraised only by a judgment of the Court of Justice under Articles 226 EC to 228 EC. Consequently, the Commission is not entitled to decide, in such a context, that the measures taken by a Member State to comply with a judgment do not comply with Community law, to draw conclusions from this for the calculation of the penalty payment determined by the Court of Justice. If it considers that the new system of rules introduced by a Member State does not yet constitute a correct transposition of a directive, the Commission must initiate the procedure provided for in Article 226 EC.

(see paras 81-82, 88-89)