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.
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