Case C-270/11

European Commission

v

Kingdom of Sweden

‛Failure of a Member State to fulfil obligations — Directive 2006/24/EC — Retention of data generated or processed in connection with the provision of electronic communications services — Judgment of the Court establishing a failure to fulfil obligations — Non-compliance — Article 260 TFEU — Pecuniary penalties — Imposition of a lump sum payment’

Summary — Judgment of the Court (Fourth Chamber), 30 May 2013

1. Action for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Deadline for compliance — Reference date for assessing whether there has been a failure to fulfil obligations

   (Art. 260(1) TFEU)

2. Action for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Imposition of a lump sum payment — Suggestions and guidelines of the Commission — Effect — Discretion of the Court — Criteria for assessment

   (Art. 260(2) TFEU)

3. Action for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Lump sum payment — Calculation of the amount — Criteria

   (Art. 260(2) TFEU)

4. Member States — Obligations — Failure to fulfil obligations — National system pleaded as justification — Not permissible

   (Art. 260 TFEU)

1.  See the text of the decision.

   (see paras 16, 56)

2.  In the context of the procedure provided for in Article 260(2) TFEU, the imposition of a lump sum payment must, in each individual case, depend on all the relevant factors pertaining both to the particular nature of the infringement established and to the conduct of the Member State involved. In that respect, that provision confers a wide discretion on the Court in deciding whether or not to impose such a penalty. Accordingly, the Commission’s suggestions cannot bind the Court and merely constitute a useful point of reference. Similarly, guidelines such as those in the communications of the Commission are not binding on the Court but contribute to ensuring that the action brought by the Commission is transparent, foreseeable and consistent with legal certainty.

   Pursuant to Article 260 TFEU, the principle of imposing a lump sum is essentially based 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 paras 40-42)

3.  In the context of the procedure provided for in Article 260(2) TFEU, it is for the Court to determine the amount of the lump sum payment in a manner that is appropriate to the circumstances and proportionate both to the breach that has been established and the ability to pay of the Member State concerned. Relevant considerations in this respect include factors such as the seriousness of the infringement, and the length of time for which the breach of obligations complained of has persisted since the judgment establishing it was delivered.

   (see paras 45, 46)

4.  See the text of the decision.

   (see para. 54)

Case C-270/11

European Commission

v

Kingdom of Sweden

‛Failure of a Member State to fulfil obligations — Directive 2006/24/EC — Retention of data generated or processed in connection with the provision of electronic communications services — Judgment of the Court establishing a failure to fulfil obligations — Non-compliance — Article 260 TFEU — Pecuniary penalties — Imposition of a lump sum payment’

Summary — Judgment of the Court (Fourth Chamber), 30 May 2013

1. Action for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Deadline for compliance — Reference date for assessing whether there has been a failure to fulfil obligations

   (Art. 260(1) TFEU)

2. Action for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Imposition of a lump sum payment — Suggestions and guidelines of the Commission — Effect — Discretion of the Court — Criteria for assessment

   (Art. 260(2) TFEU)

3. Action for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Lump sum payment — Calculation of the amount — Criteria

   (Art. 260(2) TFEU)

4. Member States — Obligations — Failure to fulfil obligations — National system pleaded as justification — Not permissible

   (Art. 260 TFEU)

1.  See the text of the decision.

   (see paras 16, 56)

2.  In the context of the procedure provided for in Article 260(2) TFEU, the imposition of a lump sum payment must, in each individual case, depend on all the relevant factors pertaining both to the particular nature of the infringement established and to the conduct of the Member State involved. In that respect, that provision confers a wide discretion on the Court in deciding whether or not to impose such a penalty. Accordingly, the Commission’s suggestions cannot bind the Court and merely constitute a useful point of reference. Similarly, guidelines such as those in the communications of the Commission are not binding on the Court but contribute to ensuring that the action brought by the Commission is transparent, foreseeable and consistent with legal certainty.

   Pursuant to Article 260 TFEU, the principle of imposing a lump sum is essentially based 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 paras 40-42)

3.  In the context of the procedure provided for in Article 260(2) TFEU, it is for the Court to determine the amount of the lump sum payment in a manner that is appropriate to the circumstances and proportionate both to the breach that has been established and the ability to pay of the Member State concerned. Relevant considerations in this respect include factors such as the seriousness of the infringement, and the length of time for which the breach of obligations complained of has persisted since the judgment establishing it was delivered.

   (see paras 45, 46)

4.  See the text of the decision.

   (see para. 54)