European Commission v Hellenic Republic (C-378/13)

Contents

Judgment of the Court (Grand Chamber)2 December 2014^note(Failure of a Member State to fulfil obligations — Directive 75/442/EEC — Waste management — Judgment of the Court establishing a failure to fulfil obligations — Non-compliance — Article 260(2) TFEU — Financial penalties — Lump sum payment and penalty payment)In Case C‑378/13,ACTION under Article 260(2) TFEU for failure to fulfil obligations, brought on 2 July 2013,European Commission, represented by M. Patakia, E. Sanfrutos Cano and A. Alcover San Pedro, acting as Agents, with an address for service in Luxembourg,vHellenic Republic, represented by E. Skandalou, acting as Agent, assisted by V. Liogkas, technical expert, with an address for service in Luxembourg,THE COURT (Grand Chamber),composed of V. Skouris, President, K. Lenaerts (Rapporteur), Vice-President, A. Tizzano, R. Silva de Lapuerta, T. von Danwitz, A. Ó Caoimh, C. Vajda and S. Rodin, Presidents of Chambers, A. Borg Barthet, J. Malenovský, E. Levits, E. Jarašiūnas, C.G. Fernlund, J.L. da Cruz Vilaça and F. Biltgen, Judges,Advocate General: J. Kokott,Registrar: L. Hewlett, Principal Administrator,having regard to the written procedure and further to the hearing on 3 June 2014,after hearing the Opinion of the Advocate General at the sitting on 4 September 2014,gives the following

Judgment

1By its application, the European Commission claims that the Court should:— declare that, by failing to adopt the measures necessary to comply with the judgment in Commission v Greece (C‑502/03, EU:C:2005:592), delivered on 6 October 2005, the Hellenic Republic has failed to fulfil its obligations under Article 260(1) TFEU;— order the Hellenic Republic to pay to the Commission a proposed periodic penalty of EUR 71 193.60 for each day of delay in complying with the judgment in Commission v Greece (EU:C:2005:592), from the day on which judgment is delivered in the present case until the day on which the judgment in Commission v Greece (EU:C:2005:592) has been complied with;— order the Hellenic Republic to pay to the Commission a lump sum of EUR 7 786.80 per day from the day on which the judgment in Commission v Greece (EU:C:2005:592) was delivered, either until the day on which judgment is delivered in the present case, or until the day on which the judgment in Commission v Greece (EU:C:2005:592) has been complied with, whichever is the earlier; and— order the Hellenic Republic to pay the costs.

Legal context

2Under Article 4 of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32) (‘Directive 75/442’):‘Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment …...Member States shall also take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste.’

3Article 8 of Directive 75/442 required Member States to take the necessary measures to ensure that any holder of waste had it handled by a private or public undertaking which carried out the operations listed in Annexes IIA or IIB to that directive, or recovered or disposed of it himself in accordance with the directive.

4Article 9(1) of Directive 75/442 provided that, for the purposes of implementing Article 4 and certain other provisions of that directive, any establishment or undertaking which carried out waste-disposal operations had to obtain a permit from the competent authority responsible for the implementation of that directive. Under Article 9(2) of the directive, those permits could be granted for a specified period; they could be renewable; they could be subject to conditions and obligations; or, notably, if the intended method of disposal was unacceptable from the point of view of environmental protection, they could be refused.

5Directive 75/442 was codified by Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste (OJ 2006 L 114, p. 9), which was itself replaced by Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (OJ 2008 L 312, p. 3). Articles 4, 8 and 9 of Directive 75/442 are reproduced, in essence, in Articles 13, 15, 23 and 36(1) of Directive 2008/98.

The judgment in Commissionv Greece

6Following complaints, questions and European Parliament reports on the existence of illegal and uncontrolled landfills in Greece and on failure to comply with Directive 75/442, the Commission initiated the procedure for failure to fulfil obligations under Article 226 EC (now Article 258 TFEU). On 26 November 2003, taking the view that the Hellenic Republic had not complied with its obligations under Articles 4, 8 and 9 of that directive by the deadline set in its reasoned opinion of 19 December 2002, the Commission brought an action for failure to fulfil obligations.

7The Hellenic Republic has not disputed the complaints levelled against it, acknowledging that, in February 2004, 1125 uncontrolled waste disposal sites were still in operation on its territory and that the closure of all illegal and uncontrolled landfills was not scheduled to take place until some time in 2008, in other words, after the deadline set in the reasoned opinion.

8The Court therefore found that the action for failure to fulfil obligations brought before it was well founded. In paragraph 1 of the operative part of its judgment in Commission v Greece (EU:C:2005:592), the Court held as follows:‘… by failing to take all the measures necessary to ensure compliance with Articles 4, 8 and 9 of … Directive 75/442 …, the Hellenic Republic has failed to fulfil its obligations under that directive.’

The pre-litigation procedure and the proceedings before the Court

9Following the delivery of the judgment in Commission v Greece (EU:C:2005:592) on 6 October 2005, the Commission asked the Hellenic Republic by letter of 14 November 2005 to inform it of the measures that it had adopted for the purposes of complying with that judgment.

10By letter of 20 February 2006, the Hellenic Republic informed the Commission that the national waste management plan had been amended in the light of the closure and restoration of uncontrolled waste disposal sites (‘illegal landfills’) and their replacement with appropriate waste management facilities. Similarly, the regional waste management plans were being amended or updated. Also, according to that reply from the Greek authorities, following the identification of illegal landfills and the classification of those sites according to their degree of hazardousness, the Ministry of the Environment, Town and Country Planning and Public Works had adopted guidelines on the preparation of restoration (or ‘cleaning up’) plans.

11At the ‘package meeting’ of 6 April 2006, the Greek authorities provided information about the steps already taken to implement the programme for the closure and cleaning up of illegal landfills and they undertook to inform the Commission regularly of the progress made in the implementation of the measures needed to comply with the judgment in Commission v Greece (EU:C:2005:592).

12In their letters of 29 May 2006, 25 October 2006, 2 February 2007, 21 May 2007, 25 September 2007, 5 May 2008 and 13 October 2008, the Greek authorities informed the Commission of the progress made in implementing measures to comply with that judgment.

13By letter of 30 July 2007, the Commission asked the Greek authorities for detailed and up-to-date information on the closure and cleaning up of illegal landfills. In response to a request made by the Commission during the ‘package meeting’ on 8 April 2008, those authorities also sent it, under cover of letters of 5 May and 13 October 2008, the regional waste management plans for 12 regions.

14Lastly, by letter of 23 February 2009 from the Deputy Minister for the Interior and the Chairman of the Interministerial Commission responsible for waste management plans, two reports were sent to the Commission on the progress of waste management plans and, specifically, on the restoration of illegal landfill sites and their replacement with appropriate waste management facilities.

15On the view that the Hellenic Republic had not fully complied with the judgment in Commission v Greece (EU:C:2005:592), the Commission — acting in accordance with the procedure laid down in Article 228(2) CE (now in Article 260(2) TFEU) — sent that Member State a letter of formal notice on 15 April 2009, giving it the opportunity to submit observations within two months.

16The Greek authorities replied to that letter of formal notice of 15 April 2009 by letters of 2 June 2009, 17 July 2009 and 18 May 2010.

17On 29 October 2010, on the view that the Hellenic Republic had failed to ensure that all illegal landfills on Greek territory were closed down and cleaned up, the Commission sent that Member State a supplementary letter of formal notice under Article 260(2) TFEU, by which it again gave the Hellenic Republic an opportunity to submit its observations within two months. According to the Commission, at that time there were 750 illegal landfills to be cleaned up, 316 of which had yet to be closed down.

18On 27 July 2011, 12 April 2012, 8 November 2012 and 5 April 2013, the Greek authorities sent the Commission successive reports on the progress made in implementing waste management plans and, more specifically, in the cleaning up of illegal landfills and their replacement with appropriate waste management facilities.

19On the view that a structural problem continued to exist, in terms of both the number of uncontrolled landfills and the lack of sufficient sites suitable for waste disposal, and that the Republic Hellenic had accordingly failed to comply with the judgment in Commission v Greece (EU:C:2005:592), the Commission decided on 21 February 2013 to bring the present action.

20On 18 June 2013, the Greek authorities provided the Commission with an eighth report on the progress of waste management projects, which revealed that 73 illegal landfills were still operational and that 292 illegal landfills, although no longer in operation, had not been cleaned up.

21In response to a question from the Court, the Hellenic Republic and the Commission informed it, on 13 and 15 May 2014 respectively, that, out of a total of 293 illegal landfills, 70 remained operational and 223, although closed down, had not yet been cleaned up.

The failure to fulfil obligations

Arguments of the parties

22The Commission submits that, during the proceedings in Case C‑502/03, in which the Hellenic Republic had not disputed the alleged infringement as such, it had acknowledged the existence of 2180 illegal landfills at the stage of the letter of formal notice and 1 458 illegal landfills at the stage of the reasoned opinion. The Commission states that since the judgment in Commission v Greece (EU:C:2005:592) was delivered — and, more specifically, since 2009 — the Greek authorities have produced successive reports on the progress made in implementing waste management plans, from which it can be seen that the number of illegal landfills has decreased, but that significant number of those landfills either remained operational (73), or had not been cleaned up (292), by the date on which the last of those reports had been sent to the Commission, before the present action was brought.

23The Hellenic Republic does not deny that it has actually failed to comply in full with the judgment in Commission v Greece (EU:C:2005:592) and the figures which it cites itself precisely match those quoted by the Commission. However, according to that Member State, those figures do not reflect the true dimensions of the problem as, approximately, no more than 5% of its population are affected by the illegal landfills in operation, since the vast majority of illegal landfills have already been closed down and cleaned up.

24Moreover, the Hellenic Republic argues that, in practice, and notwithstanding the fact that it launched the necessary administrative procedures as soon as possible, following the delivery of the judgment in Commission v Greece (EU:C:2005:592), the development of a programme to close down all illegal landfills and the implementation of such a programme are complex operations which are physically impossible to implement immediately, especially as the provisions of EU public procurement law must be observed. That Member State maintains in essence that it has deployed all available resources, given the situation that it faced and particularly in view of the financial crisis, which has significantly reduced its capacity to have works carried out. In a number of districts, according to the Hellenic Republic, it has put interim solutions in place, such as the transport of waste to a landfill site located in another area pending the construction of a legal landfill facility in the districts concerned.

Findings of the Court

25In order to determine whether the Hellenic Republic has adopted all the measures necessary to comply with the judgment in Commission v Greece (EU:C:2005:592), it must be determined whether it has fully ensured compliance with Articles 4, 8, and 9 of Directive 75/442, more specifically, by closing down and cleaning up all the illegal landfills at the centre of the dispute between the parties in the present case. Indeed, it can be seen from paragraphs 8 and 9 of the judgment in Commission v Greece (EU:C:2005:592) that the Court inferred the existence of an infringement of those provisions from its finding that 1125 uncontrolled waste disposal sites were still in operation on Greek territory in February 2004. Moreover, it is common ground in the present case, given the parties’ arguments in the present proceedings, that the failure to fulfil obligations established in the judgment in Commission v Greece (EU:C:2005:592) will continue as long as some of the landfills identified in their respective answers of 13 and 15 May 2014 to a question put by the Court have not been closed down and cleaned up.

26The first point to be noted is that, according to the settled case-law of the Court concerning Article 228(2) EC, the reference date for assessing whether there has been a failure to fulfil obligations under Article 228(2) EC is the deadline set in the reasoned opinion issued under that provision (see judgments in Commission v France, C‑304/02, EU:C:2005:444, paragraph 30, and in Commission v Spain, C‑610/10 EU:C:2012:781, paragraph 66).

27Since the FEU Treaty abolished the reasoned opinion stage in infringement proceedings under Article 260(2) TFEU, the reference date for assessing whether there has been such an infringement is the deadline set in the letter of formal notice issued under that provision (judgment in Commission v Spain, EU:C:2012:781, paragraph 67).

28In the present case, as the Commission sent the Hellenic Republic a supplementary letter of formal notice, in accordance with the procedure laid down in Article 260(2) TFEU, the reference date referred to in the preceding paragraph is the deadline set in that letter, namely, 29 December 2010. However, it is undisputed that, on that date, not all the landfills at issue had been closed down and cleaned up.

29As regards the Hellenic Republic’s argument concerning the difficulties it had been facing in connection with the closure and cleaning up of all the illegal landfills at issue, it should be recalled that, according to settled case-law, a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under EU law (see judgment in Commission v Italy, C‑496/09, EU:C:2011:740, paragraph 87 and case-law cited; see also, to that effect, judgment in Commission v Spain, C‑278/01, EU:C:2003:635, paragraph 31). In the light of that case-law, the Hellenic Republic’s argument cannot succeed.

30In those circumstances, it must be stated that, by failing to take all the measures necessary to comply with the judgment in Commission v Greece (EU:C:2005:592), the Hellenic Republic has failed to fulfil its obligations under Article 260(1) TFEU.

Financial penalties

Preliminary observations

31In accordance with Article 260(2) and the Commission Communication of 13 December 2005, entitled ‘Application of Article [260 TFEU]’ (SEC(2005) 1658), as updated by the Commission Communication of 31 August 2012, entitled ‘Updating of data used to calculate lump sum and penalty payments to be proposed by the Commission to the Court of Justice in infringement proceedings’ (C(2012) 6106 final) (‘the Commission Communication’), the Commission proposes that the Court penalise the failure to comply, at issue in the present case, by imposing payment of a lump sum and a penalty payment, in accordance with paragraph 10 of the Commission Communication.

32The Hellenic Republic contends that, before bringing an action on the basis of Article 260 TFEU, the Commission should have waited for the end of the landfill closure and cleaning up programme which the Hellenic Republic had sent it and which will continue as planned. That being so, the Hellenic Republic contends that the Court should dismiss the action in its entirety as the imposition of financial penalties is premature, it argues, in the circumstances of the case.

33It should be noted at the outset that, having recognised that the Hellenic Republic has not complied with its judgment in Commission v Greece (EU:C:2005:592), the Court may, pursuant to the second subparagraph of Article 260(2) TFEU, impose a lump sum and/or penalty payment on that Member State.

34Accordingly, the finding made in paragraph 30 above that the Hellenic Republic had not adopted all the measures necessary for compliance with the judgment in Commission v Greece (EU:C:2005:592) by the reference date of 29 December 2010 — that is to say, more than five years after the date of delivery of that judgment — is sufficient, in principle, to justify the imposition of financial penalties in the present case, notwithstanding the existence of a programme, not yet been fully implemented, to close down and clean up the illegal landfills at issue.

35For the remainder, given that the two penalties proposed by the Commission are different in nature, separate consideration must be given to the appropriateness of ordering the Member State concerned to make a penalty payment and the appropriateness of ordering it to pay a lump sum; and, as the case may be, to the amount of those penalties.

The penalty payment

Arguments of the parties

36The Commission states that the infringement established in the judgment in Commission v Greece (EU:C:2005:592) consists in the infringement of Articles 4, 8 and 9 of Directive 75/442 and that the Hellenic Republic is therefore required to bring to an end that failure to fulfil its obligations in its entirety. Compliance with the requirements arising under those provisions presupposes: (i) closure of illegal landfills; (ii) their actual cleaning up, not merely the planning of their cleaning up; and (iii) creation of the facilities necessary to ensure permanent compliance with Directive 75/442 and prevention of the creation of new illegal landfills. That being so, the Hellenic Republic’s argument that the mere adoption of the administrative measures necessary for the cleaning up of illegal landfills should be sufficient, in the circumstances, to avoid a periodic penalty being imposed on it, cannot succeed.

37The Commission asks the Court to take account of the seriousness of the infringement established, its duration and the need to ensure that the penalty has as deterrent effect. As regards the seriousness of the infringement established, the Commission maintains that account should be taken of the importance of the rules infringed and the harmful consequences, for the environment and for human health, of that infringement. It notes that the progress made in terms of reducing the number of illegal landfills constitutes a mitigating factor, but that the remaining uncertainty as regards full compliance with the judgment in Commission v Greece (EU:C:2005:592) constitutes an aggravating factor. According to the Commission, the application of a coefficient for seriousness of 9, on a scale of 1 to 20, is therefore appropriate in the circumstances. Referring to the judgment in Commission v Belgium (C‑2/90, EU:C:1992:310, paragraph 30), the Commission recalls in that regard that the Court has held that waste is matter of a special kind and that accumulation of waste, even before it becomes a health hazard, constitutes a danger to the environment, regard being had in particular to the limited capacity of each region or locality for waste reception.

38The Commission submits, as regards the duration of the infringement, that the decision to bring the present proceedings was taken on 21 February 2013, in other words, 88 months after the delivery of the judgment in Commission v Greece (EU:C:2005:592) on 6 October 2005, which justifies application of the maximum coefficient of 3. As regards the coefficient for capacity to pay, called the ‘n’ factor, it points out that the Commission’s Communication set that capacity at 4.12 for the Hellenic Republic.

39The Commission notes that, according to the formula mentioned in that Communication, the daily periodic penalty is to be equal to the initial flat-rate amount of EUR 640 multiplied by the coefficient for seriousness, the coefficient for duration and the ‘n’ factor. Accordingly, the Commission proposes the imposition in the present case of a daily penalty payment of EUR 71 193.60 (640 x 9 x 3 x 4.12).

40According to the Commission, however, it would be appropriate gradually to reduce the penalty payment in step with the progress made in complying with the judgment in Commission v Greece (EU:C:2005:592). It therefore proposes that the daily penalty payment of EUR 71 193.60 be divided by the number of uncontrolled waste disposal sites which were not in conformity with that judgment on the date of the decision to bring the present action, that is to say, by 365 (73 illegal landfills in operation and 292 which had not been cleaned up), which results in an amount of EUR 195.05 per site (71193,60 ÷ 365) and, if one of those illegal landfills has been brought into conformity with the judgment in Commission v Greece (EU:C:2005:592), to deduct that amount from the daily penalty payment. Nevertheless, according to the Commission, that reduction can be applied only if the Hellenic Republic provides the Commission with evidence establishing, beyond a shadow of a doubt, that the illegal landfill concerned has been brought into conformity with the judgment and only if it tells the Commission where the waste for disposal will now be taken.

41The Commission adds that, in order to avoid a situation in which a Member State brings illegal landfills into conformity whilst at the same time creating new uncontrolled waste disposal sites, the Commission must be able to establish that progress has been made and, to do so, it must base its findings not merely on the fact that landfills on the lists sent to the Commission by the Hellenic Republic have been brought into conformity, but on the number of illegal landfills actually in existence on Greek territory, as will be established by checks carried out at regular intervals.

42The Commission proposes that the amount due by way of penalty payment should be fixed every six months. Consequently, in the Commission’s view, the total amount of the penalty payment due in respect of the preceding six months should be calculated by deducting from the initial daily penalty payment an amount corresponding to illegal landfills which are shown to have been brought into conformity during that six-month period, the result being multiplied by the number of days in that period. The Commission also seeks to reserve the right to update the calculation, in the course of the procedure, in accordance with the figures provided by the Hellenic Republic after the date on which the decision was made to bring the present action.

43The Hellenic Republic contends that the Commission’s application for the imposition of a penalty payment will have been rendered nugatory by the date on which the judgment in the present case is delivered, since the judgment in Commission v Greece (EU:C:2005:592) will have been complied with before that date and since, in any event, the daily amount of EUR 71 193.60 is disproportionate to the seriousness of the alleged infringement. In any event, the Hellenic Republic argues that, given that its purpose is ‘coercion’, there will no longer be just cause to impose the penalty payment, as the competent authorities will have demonstrated that they have taken appropriate measures for the cleaning up of illegal landfills, even though their actual restoration is not complete. The Hellenic Republic notes, in that regard, that the Commission ceased to demand the penalty payment ordered by the Court in its judgment in Commission v Greece (C‑387/97, EU:C:2000:356) as soon as the illegal landfill at issue in the case giving rise to that judgment had been closed down and replaced with a complex for the compacting and baling of waste, as an interim solution.

44In the alternative, the Hellenic Republic disputes the coefficient for seriousness of 9 proposed by the Commission. It notes that, according to paragraph 16.4 of the Commission Communication, one of the factors that the latter takes into account as regards the consequences of the infringement is any ‘serious or irreparable damage to human health or the environment’. According to the Hellenic Republic, no such damage to human health has been established in the present case, whereas the potential damage to the environment is eliminated through the restoration of the sites concerned. In its view, it is wrong to conclude that the infringement alleged implies the existence of a structural problem at the national level since every region of Greece now has at least one legal landfill site. In any event, the coefficient of 9, as compared with the coefficient of 4 proposed by the Commission and applied by the Court in Commission v Spain (EU:C:2003:635), or the coefficient of 6 proposed and applied in the judgment in Commission v Greece (EU:C:2000:356) — in relation also to infringements affecting human health and the environment and of comparable seriousness to that in the present case — is, according to the Hellenic Republic, disproportionate. The Commission should also take account, in the present case — as the Court did in its judgment in Commission v Spain (EU:C:2003:635, paragraphs 49 and 50) — of the progress already made towards compliance with the judgment in Commission v Greece (EU:C:2005:592).

45As regards the duration of the infringement, the Hellenic Republic contends that the coefficient of 3 proposed by the Commission is disproportionate, in particular as compared with the coefficient (also 3) applied in the judgment in Commission v France (EU:C:2005:444), for an infringement that lasted 11 years. It asks the Court to order the application, if the need arises, of a coefficient lower than that proposed, as it did in the judgment in Commission v Spain (EU:C:2003:635). As for the ‘n’ factor reflecting ability to pay, the Hellenic Republic states that the value of 4.12 indicated in the Commission’s Communication, as amended in 2012, takes into account the Hellenic Republic’s gross domestic product (‘GDP’) for the year 2010, which was EUR 222.1 billion, whereas the GDP has declined since then, amounting to only EUR 193.7 billion for 2012 and an estimated EUR 182.8 billion for 2013. The Hellenic Republic asks the Court to apply a lower ‘n’ factor, if the need arises, to reflect that fact, as well as all the economic problems affecting that Member State because of the financial crisis.

46In the event that a penalty payment is imposed, the Hellenic Republic contends that the Commission’s proposal that the amount be fixed every six months should be accepted so that it can provide the Commission with evidence of the continuing advancement of the illegal landfill closure and cleaning up programme and, accordingly, so that the Commission can take account of the progress made.

Findings of the Court

47According to settled case-law, the imposition of a penalty payment 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 (judgment in Commission v Belgium, C‑533/11, EU:C:2013:659, paragraph 64 and case-law cited).

48In the present case, it can be seen from the information provided by the Hellenic Republic and by the Commission on 13 and 15 May 2014 respectively, that, out of a total of 293 illegal landfills, 70 remained in operation and 223, although closed down, had not yet been cleaned up. Consequently, it must be held that, at the time of the examination of the facts by the Court, the measures necessary for compliance with the judgment in Commission v Greece (EU:C:2005:592) had not yet been fully adopted or implemented.

49In that regard, the Hellenic Republic’s argument that its competent authorities have taken appropriate measures for the cleaning up of illegal landfills, even though their actual restoration is not yet complete, cannot succeed. The fact, if it were established, that the competent authorities have adopted, at the administrative level, all the measures necessary to eliminate the infringement established is not sufficient to preclude the imposition of a penalty in the present case, given that some of the illegal landfills at issue remain in operation and/or have not been cleaned up.

50In those circumstances, the Court finds that the imposition of a penalty payment on the Hellenic Republic constitutes an appropriate financial means of ensuring full compliance with the judgment in Commission v Greece (EU:C:2005:592) (see, to that effect, judgment in Commission v Ireland, C‑374/11, EU:C:2012:827, paragraph 35 and case-law cited).

51However, given the progress towards full compliance with the judgment in Commission v Greece (EU:C:2005:592) and the observations submitted by the Hellenic Republic to the Court, it cannot be ruled out that, on the date of delivery of the present judgment, full compliance with the judgment in Commission v Greece (EU:C:2005:592) will have taken place. Accordingly, the periodic penalty must be imposed only if the failure to fulfil obligations persists on the date of delivery of the present judgment.

52As regards the amount of that penalty payment and the form it should take, it is for the Court, in the exercise of its discretion, in accordance with settled case-law, to set the penalty payment in such a way that it is both appropriate to the circumstances and proportionate to the infringement established and the ability of the Member State concerned to pay (see, to that effect, judgment in Commission v Luxembourg, C‑576/11, EU:C:2013:773, paragraph 46 and case-law cited). The Commission’s proposals concerning the penalty payment cannot bind the Court and constitute merely a useful point of reference. Similarly, guidelines such as those set out in the communications of the Commission are not binding on the Court but contribute to ensuring that the Commission’s own actions are transparent, foreseeable and consistent with legal certainty when that institution makes proposals to the Court (see, to that effect, judgment in Commission v Spain, EU:C:2012:781, paragraph 116 and case-law cited). In proceedings under Article 260(2) TFEU relating to a failure to fulfil obligations on the part of a Member State that has persisted notwithstanding the fact that that same failure to fulfil obligations has already been established in a first judgment delivered under Article 226 EC or Article 258 TFEU, the Court must remain free to set the penalty payment to be imposed in an amount and in a form that the Court considers appropriate for the purposes of inducing that Member State to bring to an end its failure to comply with the obligations arising under that first judgment of the Court.

53For the purposes of determining the amount of penalty payments, the basic criteria which must be taken into consideration in order to ensure that penalty payments have coercive effect and that EU law is applied uniformly and effectively are, in principle, the seriousness of the infringement, its duration and the capacity of the Member State concerned to pay. In applying those criteria, regard must be had, in particular, to the effects on public and private interests of the failure to comply and to the urgent need for the Member State concerned to be induced to fulfil its obligations (see Commission v Luxembourg, C‑576/11, EU:C:2013:773, paragraph 47 and case-law cited).

54As regards, in the first place, the seriousness of the infringement, it should be borne in mind, as the Court has held, that the obligation to dispose of waste without endangering human health and without harming the environment is inherent in the key objectives of EU environmental policy as set out in Article 191 TFEU. The failure to comply with the obligation under Article 4 of Directive 75/442 could, by the very nature of that obligation, endanger human health directly and harm the environment and must be regarded as particularly serious (judgment in Commission v Greece, EU:C:2000:356, paragraph 94).

55It should be noted that, in the present case, the number of illegal landfills covered by the failure to fulfil obligations on the date that the Court examined the facts (293, 70 of which have not yet been closed down) is considerable. However, that number is significantly lower than the number of illegal landfills which, according to figures provided by the Hellenic Republic itself, were in operation in February 2004 when the first infringement proceedings were brought before the Court, that is to say, 1125 illegal landfills (judgment in Commission v Greece, EU:C:2005:592, paragraph 8).

56It is clear that, in the present case, the extent of the damage which, on the date of delivery of the present judgment, continues to be inflicted on human health and the environment because of the infringement depends in large part on the number of individual sites affected by that infringement and especially on the number of illegal landfills still in operation. Accordingly, that damage is less extensive than the damage to human health and the environment caused by the initial failure to fulfil obligations established in the judgment in Commission v Greece (EU:C:2005:592).

57As regards, in the second place, the duration of the infringement, It should be recalled that this must be assessed by reference to the time when the Court assesses the facts, not the time when the case is brought before it by the Commission (judgment in Commission v Portugal, C‑70/06, EU:C:2008:3, paragraph 45 and case-law cited). In the present case, the duration of the infringement — more than nine years from the date of delivery of the judgment in Commission v Greece (EU:C:2005:592) — is considerable.

58In the third place, as regards the capacity of the Member State concerned to pay, it is appropriate to take account of the Hellenic Republic’s argument that its GDP has declined since 2010. The Court has held that it is necessary to take account of recent trends in the GDP of a Member State at the time of the Court’s examination of the facts (judgment in Commission v Ireland, C‑279/11, EU:C:2012:834, paragraph 78).

59In addition, the Commission has proposed that the Court gradually reduce the penalty payment in accordance with the progress made in complying with the judgment in Commission v Greece (EU:C:2005:592).

60It should be noted in this connection that, even if — in order to ensure full compliance with the Court’s judgment — the penalty payment should be payable in its entirety until such time as the Member State has taken all the measures necessary to bring to an end the failure to fulfil obligations established, nevertheless, in certain specific cases, a penalty which takes account of the progress that the Member State may have made in complying with its obligations may be envisaged (see, to that effect, judgments in Commission v Spain, EU:C:2003:635, paragraphs 43 to 51; in Commission v Italy, EU:C:2011:740, paragraphs 47 to 55; and in Commission v Belgium, EU:C:2013:659, paragraphs 73 and 74).

61In the circumstances of the present case and having regard, in particular, to the information provided to the Court by the Hellenic Republic and by the Commission on 13 and 15 May 2014 respectively, the Court considers it appropriate to order a decreasing penalty payment. It is therefore necessary to decide upon the method for calculating that penalty payment and the schedule for payment.

62As regards the latter point, it is appropriate that the decreasing penalty payment be established on a six-monthly basis, in accordance with the Commission’s proposal, in order to enable the Commission to assess the state of progress of the measures for compliance with the judgment in Commission v Greece (EU:C:2005:592), by reference to the situation prevailing at the end of the period in question (see, to that effect, judgment in Commission v Italy, EU:C:2011:740, paragraph 54).

63In addition, it should be noted that the damage which continues to be caused to human health and the environment is, as a rule, more extensive in the case of the 70 landfills which are still in operation than in the case of the 223 other landfills which are no longer in operation, but have yet to be cleaned up. That being so, it is important to induce the Member State concerned not only to clean up all the landfills in question as soon as possible, but also, before their cleaning up, to close down landfills which are still in operation as soon as possible.

64To that end, it is appropriate, for the purposes of determining the amount of the periodic penalty, to regard each landfill which is still active as in fact involving two separate infringements. Accordingly, the overall infringement should not be broken down into 293 separate instances of infringement, that is to say, one infringement for each landfill, but into 363 instances of infringement, that is to say, one infringement for each of the 223 landfills which have yet to be cleaned up and two infringements for each of the 70 landfills which have not yet been closed down and which must then also be cleaned up.

65In view of those circumstances and taking account of the need to induce the Member State concerned to bring to an end the failure to fulfil obligations, the Court considers it appropriate, in the exercise of its discretion, to order, on the basis of the 363 instances of infringement identified in the present judgment, a six-monthly penalty payment of EUR 14 520 000, from which the sum of EUR 40 000 is to be deducted for each instance of infringement that has ceased by the end of each six-month period concerned.

66If it is to obtain such a reduction in the penalty payment, it is for the Hellenic Republic to prove, before the end of each six-month period after the date of delivery of the present judgment, that the specific landfills covered by the failure to fulfil obligations are no longer in operation and/or that they have been cleaned up. In order to avoid the risk, referred to by the Commission, that the Member State concerned might close down illegal landfills but at the same time create new uncontrolled waste disposal sites, it is necessary that illegal landfills previously in operation should not be regarded as having been closed down unless the Hellenic Republic proves not only that the site has been closed down in a formal sense, but also that the waste which used to be dumped there is now lawfully dumped in a specifically identified landfill site.

67In the light of all the foregoing considerations, it is appropriate to order the Hellenic Republic to pay to the Commission, into the ‘European Union own resources’ account, from the day on which judgment is delivered in the present case until the judgment in Commission v Greece (EU:C:2005:592) has been complied with, in the event that the failure to fulfil obligations established in paragraph 30 above persists until that day, a six-monthly penalty payment to be calculated, as regards the first six-month period following delivery of the present judgment, at the end of that period, on the basis of an initial amount set at EUR 14 520 000, from which the sum of EUR 40 000 is to be deducted in respect of each uncontrolled waste disposal site, covered by the infringement established, that has by then been closed down or cleaned up since 13 May 2014, and the sum of EUR 80 000 is to be deducted in respect of each such site that has by then been both closed down and cleaned up. The penalty payment due in respect of every six-month period thereafter is to be calculated, at the end of each such period, on the basis of the amount of the penalty payment set for the preceding six-month period, from which the same deductions are to be made in respect of the closing down and/or cleaning up of sites, covered by the finding of a failure to fulfil obligations, effected during the six-month period in question.

The lump sum payment

Arguments of the parties

68According to the Commission Communication, that institution proposes that the Court should order payment of a fixed lump sum, taking into account the period between the day on which the judgment was delivered under Article 258 TFEU and the day on which the Member State concerned has complied with that judgment or the day on which the judgment under Article 260 TFEU will be delivered. For the calculation of that lump sum, the Commission uses the same criteria as those used for the penalty payment, that is to say, the criteria relating to the seriousness of the infringement, the duration of the infringement — which is taken into account by multiplying a daily lump sum by the number of days of non-compliance — and the need to ensure the deterrent effect of the financial penalty. According to the Commission Communication, the proposal is that the lump sum should be set at EUR 210. Given the coefficient for seriousness of 9 and the ‘n’ factor of 4.12, the daily lump sum would therefore amount to EUR 7 786.80 (210 x 9 x 4.12). Since the judgment in Commission v Greece (EU:C:2005:592) was delivered on 6 October 2005 and the Commission adopted the decision to bring the present action under Article 260 TFEU on 21 February 2013, 2696 days elapsed between the delivery of that judgment and that decision.

69On 21 February 2013, the total lump sum (EUR 7 786.80 x 2696 days), which would therefore amount to EUR 20 993 212.80, exceeds the minimum lump sum fixed, for the Hellenic Republic, at EUR 2 181 000. Accordingly, the Commission considers it appropriate that the daily lump sum should be set at EUR 7 786.80 per day, to be paid from 6 October 2005 until the day on which the judgment closing the present proceedings is delivered or until the day on which the judgment in Commission v Greece (EU:C:2005:592) has been fully complied with, whichever is the earlier. The Commission adds that, contrary to the Hellenic Republic’s arguments, the risk that that infringement will endure cannot be discounted, especially in view of the fact that that Member State should have complied with the relevant provisions several decades ago and, a fortiori, since the judgment in Commission v Greece (EU:C:2005:592).

70The Hellenic Republic contends that, in view of the deterrent purpose of the order to pay a lump sum and given that the Hellenic Republic shows, in the present proceedings, that it has already taken all the measures necessary for full compliance with the judgment in Commission v Greece (EU:C:2005:592), by cooperating in a systematic and sincere manner with the Commission’s departments, there is no need to order it to pay a lump sum. The Hellenic Republic states that, in the circumstances, there is no risk of recurrence, since 95% of its territory now accommodates legal disposal facilities for household waste. In any event, if the Court were to decide to order it to pay such a sum, the Hellenic Republic suggests that the Court should set that sum at the minimum amount laid down for that Member State in the Commission Communication, namely, EUR 2 181 000.

Findings of the Court

71The first point to note is that, in exercising the discretion conferred on it in such matters, the Court is empowered to impose a penalty payment and a lump sum payment cumulatively (judgment in Commission v Greece, C‑369/07, EU:C:2009:428, paragraph 143).

72An order to pay a lump sum is based essentially on the assessment of the effects on public and private interests of the failure of the Member State concerned to comply with its obligations, in particular where the breach has persisted for a long period after the judgment initially establishing it was delivered (see judgment in Commission v Spain, C‑184/11, EU:C:2014:316, paragraph 59 and case-law cited).

73The imposition of a lump sum payment must depend in each individual case on all the relevant factors relating both to the characteristics of the failure to fulfil obligations established and to the conduct of the Member State involved in the procedure initiated under Article 260 TFEU. In that connection, that provision confers a wide discretion on the Court in deciding whether to impose such a penalty (judgment in Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 141).

74In the present dispute, all the legal and factual circumstances which led to the infringement established and, in particular, the very high number of illegal landfills involved in that infringement, under the terms of the judgment in Commission v Greece (EU:C:2005:592), delivered in October 2005 — that is to say, 1125 landfills, 293 of which had not, in May 2014, yet been closed down and/or cleaned up — indicate that effective prevention of future repetition of similar infringements of EU law may require the adoption of a dissuasive measure, such as the imposition of a lump sum payment.

75Accordingly, it is for the Court, in the exercise of its discretion, to fix the lump sum in an amount appropriate to the circumstances and proportionate to the infringement (judgment in Commission v Greece, EU:C:2009:428, paragraph 146).

76Relevant considerations in this respect include factors such as the seriousness of the infringement and the length of time for which the infringement has persisted since the delivery of the judgment establishing it (see Commission v Italy, EU:C:2011:740, paragraph 94).

77The circumstances which must be taken into account are clear, inter alia, from the considerations set out in paragraphs 54, 57 and 58 above, relating to the seriousness and duration of the infringement, and the capacity of the Member State concerned to pay.

78As regards the seriousness of the infringement, however, it is appropriate to note that the number of illegal landfills involved in the infringement during the period between the delivery of the judgment in Commission v Greece (EU:C:2005:592) in October 2005 and the delivery of the present judgment was significantly higher, on average, than the number identified in paragraph 55 above for the purposes of calculating the penalty payment, that is to say, 293 landfills of which 70 have not yet been closed down. The number of illegal landfills has decreased during that period, falling from 1125, the number identified by the Court in October 2005, to 293, 70 of which are still in operation, according to figures provided to the Court by the parties in May 2014. Accordingly, consistently with the finding made in paragraph 56 above regarding the fact that the damage to human health and the environment caused by the infringement established in this case depends in large part on the number of individual sites affected by that infringement, it is appropriate to regard that infringement as more serious for the purposes of calculating the lump sum than for the purposes of fixing the penalty payment.

79On the basis of all of those factors, the Court considers that proper account of the circumstances of the present case will be taken by setting the amount of the lump sum which the Hellenic Republic will have to pay at EUR 10 million.

80The Hellenic Republic must therefore be ordered to pay to the Commission, into the ‘European Union own resources’ account, a lump sum of EUR 10 million.

Costs

81Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the Hellenic Republic’s failure to fulfil its obligations has been established, the Hellenic Republic must be ordered to pay the costs.

Operative part

On those grounds, the Court (Grand Chamber) hereby:

1.Declares that, by failing to adopt all the measures necessary to comply with the judgment in Commission v Greece (C‑502/03, EU:C:2005:592), the Hellenic Republic has failed to fulfil its obligations under Article 260(1) TFEU;

2.Orders the Hellenic Republic to pay to the Commission, into the ‘European Union own resources’ account, from the day on which judgment is delivered in the present case until the judgment in Commission v Greece (EU:C:2005:592) has been complied with, in the event that the failure to fulfil obligations established in paragraph 1 of the operative part of the present judgment persists until that day, a six-monthly penalty payment to be calculated, as regards the first six-month period following delivery of the present judgment, at the end of that period, on the basis of an initial amount set at EUR 14 520 000, from which the sum of EUR 40 000 is to be deducted in respect of each uncontrolled waste disposal site, covered by the infringement established, that has by then been closed down or cleaned up since 13 May 2014, and the sum of EUR 80 000 is to be deducted in respect of each such site that has by then been both closed down and cleaned up. The penalty payment due in respect of every six-month period thereafter is to be calculated, at the end of each such period, on the basis of the amount of the penalty payment set for the preceding six-month period, from which the same deductions are to be made in respect of the closing down and/or cleaning up of sites, covered by the failure to fulfil obligations established, effected during the six-month period in question;

3.Orders the Hellenic Republic to pay to the Commission, into the ‘European Union own resources’ account, the lump sum of EUR 10 million;

4.Orders the Hellenic Republic to pay the costs.