Case C‑533/11

European Commission

v

Kingdom of Belgium

(Failure of a Member State to fulfil obligations — Directive 91/271/EEC — Urban waste-water treatment — Judgment of the Court establishing a failure to fulfil obligations — Non-compliance — Article 260 TFEU — Financial penalties — Imposition of a lump sum and a penalty payment)

Summary — Judgment of the Court (Fifth Chamber), 17 October 2013

1.        Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Period for implementation — Reference date for assessing whether there has been a failure to fulfil obligations

(Art. 228(2) EC; Art. 260(1) TFEU)

2.        Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Imposition of a lump sum payment — Commission proposals and guidelines — Effect — Discretion of the Court — Criteria for assessment

(Art. 260(2) TFEU)

3.        Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Imposition of a penalty payment — Condition — Persistence of the failure to fulfil obligations until the delivery of the judgment

(Art. 260(2) TFEU)

4.        Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Calculation of the amount — Criteria

(Art. 260(2) TFEU)

5.        Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Calculation of the amount — Gradually decreasing penalty

(Art. 260(2) TFEU; Council Directive 91/271)

1.        The reference date which must be used for assessing whether there has been a failure to fulfil obligations under Article 260(1) TFEU is that of the expiry of the period prescribed in the letter of formal notice issued under that provision. Where, however, the proceedings for failure to fulfil obligations were commenced on the basis of Article 228(2) EC, the reference date for assessing whether there has been a failure to fulfil obligations is the date of expiry of the period prescribed in the reasoned opinion issued before entry into force of the Lisbon Treaty, that is, December 2009.

(see para. 32)

2.        See the text of the decision.

(see paras 51-61)

3.        The imposition of a penalty payment on a Member State which has failed to fulfil its obligations under Article 260(1) TFEU is, in principle, justified only in so far as the failure to comply with an earlier judgment of the Court continues up to the time of the Court’s examination of the facts. If, at the date of the hearing, the measures necessary to comply with the previous judgment have not yet been adopted in full, the imposition of a penalty payment on that Member State constitutes an appropriate financial means to ensure full compliance with that judgment.

However, in view of the continuing progress towards full compliance with the earlier judgment, it is not impossible that the earlier judgment will have been fully complied with by the date of delivery of this judgment. Accordingly, the penalty payment will be imposed only if the infringement is continuing on the date of delivery of this judgment.

(see paras 64-67)

4.        See the text of the decision.

(see paras 68, 69)

5.        Given that the provision of evidence of the compliance with Directive 91/271 concerning urban waste-water treatment may require a certain amount of time and in order to take account of any progress made by the defendant Member State which has failed to fulfil its obligations under Articles 3 and 5 thereof, the penalty payment must be calculated on the basis of six-month periods, reducing the total relating to such periods by a percentage corresponding to the proportion representing the number of population equivalents which have been brought into compliance with the judgment establishing a failure to fulfil obligations by that Member State until the end of such a period compared to the number of population equivalents which were not compliant with this judgment on the day of its delivery.

(see paras 73, 74, operative part 3)