New Commission Communication on Penalty Payments in Infringement Procedures: Article 260 §3

The Commission recently adopted a new Communication on the "Implementation of Article 260(3) TFEU" (SEC(2010) 1371 final) to take account of the changes to what is now Article 260 TFEU (ex Article 228 EC) made by the Lisbon Treaty.

Article 260 TFEU is the provision that allows the Commission to take a member State to the Court of Justice for failure to respect a Court judgment.

The Lisbon Treaty made two changes to the provision. First, as regards the procedure, the Lisbon Treaty removes the pre-litigation stage of issuing a reasoned opinion. Consequently, since the entry into force of the Lisbon Treaty, if the Commission considers that a member State has not complied with a Court judgment, it has to accomplish only one pre-litigation procedural step, namely the sending of a letter of formal notice requesting the member State to submit its observations. After that, the Commission can refer the matter directly to the Court by virtue of Article 260 §2. That should speed up the procedure, automatically reducing the average duration of the procedure to between eight and 18 months.

The second change is more substantial: the Commission can propose to the Court, even at the stage of the infringement proceedings pursuant to Article 258 (ex Article 226 TEC), that it impose a lump sum or penalty payment in the same judgment which finds that a Member State has failed to fulfill its obligation to notify measures transposing a directive adopted under a legislative procedure. Before that change, the Commission had to obtain a declaratory judgment from the Court first and then apply to the Court a second time to request the imposition of a lump sum and penalty payment.

The purpose of the new Communication is to set out how the Commission will behave in taking those cases to the Court. It makes clear that it it will, principally, ask for the imposition of a periodic penalty payment as it considers that such a penalty is the more appropriate to secure rapid implementation of directives. The Commission states that it will also, depending on the circumstances, seek the imposition of a lump sum. It states that it may revise its practice in the light of member States' behavior and seek the imposition of a lump sum in all cases.

Interestingly, the Commission clarifies that in cases before the Court where it has proposed only a penalty, the Commission will withdraw its action if the member State notifies the transposition measures required to put an end to the infringement. In contrast, in cases pending in which it has also proposed a lump sum, it will not withdraw its action simply because the required notification has been made and will pursue the action until a judgment is obtained.

The Commission's earlier Communication, SEC(2005)1658, sets out how it would apply Article 228 EC but no longer seems available online.

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