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Language of document : ECLI:EU:T:2011:605

Case T-139/06

French Republic

European Commission

(Failure to comply with a judgment of the Court of Justice finding that there has been failure of a Member State to fulfil obligations – Penalty payment – Adoption, by the Member State, of certain measures – Claim for payment – Competence of the Commission – Jurisdiction of the General Court)

Summary of the Judgment

1. Actions for failure to fulfil obligations – Judgment of the Court of Justice establishing a failure to fulfil the obligation to comply with a judgment and imposing a penalty payment – Commission’s competence to recover a penalty payment fixed by the Court of Justice

(Arts 226 EC to 228 EC, 274 EC and 279 EC)

2. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Period for implementation

(Arts 226 EC and 228 EC)

3. Actions for failure to fulfil obligations – Judgment of the Court of Justice establishing a failure to fulfil the obligation to comply with a judgment and imposing a penalty payment – Commission’s assessment of the measures adopted by the Member State to comply with the judgment of the Court of Justice – Limits

(Arts 226 EC and 228 EC)

4. Actions for failure to fulfil obligations – Judgment of the Court of Justice establishing a failure to fulfil the obligation to comply with a judgment and imposing a penalty payment – ‘Set penalty payment’ and ‘gradually decreasing penalty payment’ – Whether the Commission has competence to reduce a penalty payment fixed by the Court of Justice – No competence

(Arts 226 EC and 228 EC)

5. Procedure – Division of competences between the Court of Justice and the General Court – Action for annulment brought by a Member State against a Commission decision fixing the amount of the penalty payment due in compliance with a judgment of the Court of Justice – Whether the General Court has unlimited jurisdiction to reduce the amount of the penalty payment – No jurisdiction – Exclusive jurisdiction of the Court of Justice

(Arts 226 EC, 228 EC and 229 EC)

1. The EC Treaty does not lay down the detailed rules for the enforcement of the judgment that the Court of Justice delivers at the conclusion of the procedure under Article 228 EC, in particular where a penalty payment is decided on. Although the procedures provided for under Articles 226 EC and 228 EC have the same purpose, that is to say, to ensure the effective application of EU law, the fact remains that they constitute two distinct procedures, each with its own subject-matter. The procedure established under Article 226 EC is designed to obtain a declaration that the conduct of a Member State is in breach of EU law and to terminate that conduct, while the procedure provided for under Article 228 EC has a much narrower ambit, being designed only to induce a defaulting Member State to comply with a judgment establishing a breach of obligations.

It follows that, once the Court of Justice has held, by a judgment delivered on the basis of Article 226 EC, that a Member State has failed to fulfil its obligations, the continuation of negotiations between that Member State and the Commission is no longer designed to establish the existence of the infringement – which is precisely what the Court of Justice has found – but to determine whether the necessary conditions for the bringing of an action under Article 228 EC are met.

According to Articles 226 EC to 228 EC, the rights and duties of Member States may be determined and their conduct appraised only by a judgment of the Court of Justice. Since the Court of Justice clearly determined the obligations of a Member State in a judgment given pursuant to Article 228 EC, it would be contrary to the spirit of the Treaty and the purpose of the process provided for under Article 228 EC to oblige the Commission to bring a new action for failure to fulfil obligations on the basis of Article 226 EC.

Moreover, where a judgment of the Court of Justice, delivered pursuant to Article 228(2) EC, orders a Member State to pay a penalty payment to the Commission, into the account ‘European Community own resources’, and since, under Article 274 EC, the Commission implements the budget, the latter is responsible for recovering the amounts that would be due to the budget of the EU pursuant to the judgment, in accordance with the provisions of the regulations made under Article 279 EC.

It follows that the Commission has, in principle, competence to require payment of a penalty payment set by the Court of Justice.

(see paras 25-28, 32, 37-38)

2. Although Article 228 EC does not specify the period for compliance with a judgment of the Court of Justice establishing that a Member State has failed to fulfil its obligations, it follows from settled case-law that the importance of immediate and uniform application of EU law means that the process of compliance must be initiated at once and completed as soon as possible. It is apparent from the spirit of the Treaty and the relationship between Articles 226 EC and 228 EC that a judgment of the Court of Justice finding a failure to fulfil obligations and a judgment subsequently finding lack of full compliance with the first judgment must be regarded as a legal framework enabling the Member State to determine precisely the requisite measures to be implemented in order to comply with EU law.

(see paras 42-43)

3. In the context of compliance with a judgment of the Court of Justice imposing a penalty payment on a Member State, if the Commission has a serious and reasonable doubt with regard to the checks carried out by the national authorities, the Member State cannot rebut the Commission’s findings by mere assertions which are not substantiated by evidence of a reliable and operational supervisory system. It is for that State to adduce the most detailed and comprehensive evidence that its checks are accurate and, if appropriate, that the Commission’s assertions are incorrect. That is particularly true in the context of a procedure for the enforcement of a judgment of the Court of Justice for failure to fulfil obligations since it is for the Member State to show that it has put an end to that failure. Indeed, in that context, 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.

Consequently, before recovering a fine, the Commission is required to verify if the complaints upheld by the Court of Justice in the context of a judgment based on Article 228 EC still remain on the date set by the Court of Justice.

(see paras 52-55)

4. If, in the course of enforcing a judgment of failure to fulfil obligations, the Court of Justice decides to apply a set penalty payment which is payable after each six-month period from the announcement of the judgment for failure to fulfil obligations had not been fully complied with, it must be inferred that partial compliance with that judgment does not give the right to a reduction of the amount of the penalty payment. Indeed, if the Court of Justice expressly applies a ‘set penalty payment’ and not a ‘gradually decreasing penalty payment’, the Commission, being bound by the judgment of the Court, has no jurisdiction to reduce the amount of that penalty payment.

(see paras 78-79)

5. As regards the General Court’s potential unlimited jurisdiction to reduce the amount of the penalty payment, the setting of a penalty payment and its amount as regards failure to implement a judgment for failure to fulfil obligations falls within the exclusive jurisdiction of the Court of Justice. It would therefore be contrary to the coherence of the Treaty if the General Court reduced it in the context of an action for annulment. Finally, Article 229 EC requires that that jurisdiction be explicit. That cannot be inferred either from the wording of Article 226 EC or from that of Article 228 EC.

(see para. 81)