Article 228 EC, failure to comply with a judgment but no penalty : Case C-119/04

The Court of Justice handed down an interesting judgment in Case C-119/04 Commission v. Italy in which it found that Italy had not complied with a previous judgment of the Court but did not impose any financial penalty under Article 228 EC.

The Court had declared that Italy was in breach of EC law in its judgment in Case C-212/99 Commission v. Italy. Italy had breached Article 39 EC by not guaranteeing recognition of the rights acquired by former foreign-language assistants who have become associates and mother-tongue linguistic experts, even though such recognition was guaranteed to all national workers.

The Commission considered that Italy had not taken the requisite steps to comply with the judgment and so commenced Article 228 EC proceedings. But Italy was able to demonstrate that it had taken measures to comply although they were taken after the Commission had issued its reasoned opinion.

The Court recalled its previous caselaw according to which the reference date for assessing whether there has been a failure to fulfil obligations under Article 228 EC is the date of expiry of the period prescribed in the reasoned opinion issued under that provision (see Case C‑304/02 Commission v. France at paragraph 30, and Case C-177/04 Commission v. France at paragraph 20). It then went on that it is for the Commission to provide the Court, in the course of the proceedings, with the information necessary to determine the extent to which a member State has complied with a judgment declaring it to be in breach of its obligations (Case C‑387/97 Commission v. Greece at paragraph 73). Where the Commission has adduced sufficient evidence to show that the breach of obligations has persisted, it is for the defendant member State to challenge in substance and in detail the information produced and its consequences (Case C‑304/02 Commission v. France, paragraph 56).

In this case, the Court found that Italy had shown that it had done what was necessary to comply with the judgment in Case C-212/99 but after the date on which the Commission had issued its reasoned opinion in the Article 228 EC proceeding. So, the Court found that it did not have enough evidence before it that the breach persisted beyond that date. Hence the finding that Italy was in breach of its obligations but no financial penalty was imposed.

More generally, look at the Commission's Communication of December 2005 (SEC (2005) 1658) on how it will handle Article 228 EC cases and caculate the financial penalties. There's also a press release about it here.