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Content type: Encyclopedia entries Product: Max Planck Encyclopedias of International Law [MPIL]
Module: Max Planck Encyclopedia of International Procedural Law [MPEiPro] Article last updated: September 2018
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 08 September 2024
Subject(s): Burden of proof — International courts and tribunals, decisions — Compliance with international decisions — EU Treaty
Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.
1 The general European Union (‘EU’) infringement procedure (Infringement procedure: Court of Justice of the European Union (CJEU)) consists of two distinct procedures stipulated in Articles 258 and 260 Treaty on the Functioning of the European Union (2008) (‘TFEU’), each with its own subject-matter. The procedure established under Article 258 TFEU is designed to obtain a declaration t hat the conduct of a Member State is in breach of EU law and that the conduct will be terminated. The procedure provided for under Article 260 TFEU is designed to enforce compliance with an infringement judgment, ie repetitive infringements. Thus, it has a much narrower ambit than Article 258 TFEU (Sweden v API and Commission, 2010, para 119). Prior to the entry into force of the Maastricht Treaty in 1993, the two procedures were largely identical despite tackling different types of non-compliance. However, the Maastricht Treaty empowered the European Commission (‘Commission’) to request the European Court of Justice (‘ECJ’) to impose pecuniary sanctions in the form of a lump sum or penalty payment on a Member State. A lump sum is a ‘single sum of money that serves as complete payment’ ( American Heritage Dictionary of the English Language, 2004 ). Penalty payments are sums of money to be paid periodically until the Member State breach has ended. The Lisbon Treaty further amended Article 260 TFEU in two respects. It omitted the reasoned opinion in the administrative phase (Art 260 (2) TFEU) and introduced a new provision concerning failure to notify measures transposing a directive (Art 260 (3) TFEU). The Commission may now request that the ECJ awards a pecuniary penalty already during the Article 258 TFEU procedure for failure to notify measures transposing a directive.
2 In addition to sanctions under the general infringement procedure stipulated in Articles 258 and 260 TFEU, mention should also be made of Article 279 TFEU empowering the ECJ to prescribe any necessary interim measures in any cases before it. On 20 November 2017, the ECJ (Grand Chamber) held that it has power under the latter procedure, inter alia, to provide for a periodic penalty payment to be imposed on a Member State, if the Member State fails to comply with the interim measures ordered (Commission v Poland, 2017). The ECJ explicitly rejected the view that only Article 260 TFEU empowers the ECJ to impose pecuniary penalties. Moreover, it ruled, periodic pecuniary penalties provided for under Article 279 TFEU are not to be regarded as punishment. Rather, they are provided for to ensure Member State compliance with interim measures and ultimately serves to guarantee the effective application of EU law (Commission v Poland, 2017, para 102).
3 The first part of this entry focuses on the general procedure in Article 260 (2) and the second part on the special procedure enshrined in Article 260 (3). The purpose is to account for and critically assess the rules and practices governing Member State penalty payments at the ECJ. Although the focus is on procedural questions, the general enforcement mechanism contains clear political elements. This is a result of the Commission’s discretionary powers to initiate proceedings and whether to refer a Member State to the ECJ, ie its powers before and during the administrative phase. However, the ECJ has carefully demarcated the Commission’s powers versus those of the ECJ under the judicial phase, leaving the ECJ with broad discretionary powers. (This entry is in part based on Andersen 2012).
4 According to settled case-law, the process of compliance with infringement rulings must be initiated at once and completed as soon as possible (Commission v Greece, 2000, paras 81 and 82, Commission v Spain, 2003, paras 26 and 27, and Commission v Greece, 2009, para 51). When a Member State fails to take the appropriate actions, the Commission can revert to Article 260 (2) TFEU. The procedure consists of a pre-litigation and a litigation phase. The purpose of the pre-litigation phase is to give the Member State the opportunity to fulfil its obligations under EU law, or to put its case properly against the complaints set out by the Commission as regards its continued failure to fulfil its obligations (Commission v Portugal, 2010, para 55). Prior to the Lisbon Treaty, the pre-litigation phase under Article 260 TFEU required the Commission to issue a letter of formal notice and subsequently a reasoned opinion, like under the general infringement procedure established under Article 258 TFEU. Both the letter of formal notice and the reasoned opinion delimit the subject-matter of the dispute, so that it cannot be extended afterwards. By analogy to case-law concerning the reasoned opinion, the warning letter, and the action provided for in Article 260 (2) TFEU must ‘set out the Commission’s complaints coherently and precisely in order that the Member State and the ECJ may appreciate exactly the extent to which the judgment finding a failure to fulfil obligations has been complied with’ (Commission v Portugal, 2010, para 68). The Convention discussion circle on the ECJ proposed omitting the reasoned opinion from Article 260 (2) TFEU ‘to bring about greater effectiveness and simplicity in the machinery for sanctions for failure to comply with a judgment of the Court’ (EU Convention, Articles on the Court of Justice and the High Court, 16). This amendment was eventually introduced by the Lisbon Treaty, causing the procedure to diverge from that under Article 258 TFEU. However, the subject-matter of proceedings still requires careful delimitation by the pre-litigation procedure (Compare, eg Commission v Portugal, 2010, para 57). Whether the amendment has indeed brought about greater effectiveness is difficult to measure. Significantly, the Commission is at ‘liberty to decide whether or not to bring the matter before the Court’ before as well as after issuance of a reasoned opinion (Commission v Ireland, 1999, para 12) and the infringement statistics therefore do not necessarily reflect degrees of substantive compliance.
5 The reference date for assessing whether there has been a failure to fulfil obligations under Article 260 (1) TFEU is the date of expiry of the period prescribed in the letter of formal notice issued under that provision (Commission v Spain, 2012, para 67, and Commission v Ireland, 2012, para 19). If the Commission submits a supplementary letter of formal notice, the reference date referred to in the preceding paragraph is the deadline set in that letter (Commission v Greece, 2014, para 28). If the proceedings were commenced on the basis of Article 260 (2) TFEU, the reference date for assessing whether there has been a failure to fulfil obligations is the date of expiry of the period prescribed in the reasoned opinion issued before entry into force of the Lisbon Treaty (Commission v Luxembourg, 2013, para 42).
6 In relation to the possible imposition of a penalty payment, it is the date on which the ECJ examines the facts that is relevant (Commission v Italy, 2006, paras 33, 45, and 46, Commission v Germany, 2007, para 40, Commission v France, 2006, para 21, and Commission v France, 2005, para 31). If the State has brought itself into compliance before court proceedings are initiated and the facts have been verified, the Member State, as a rule, no longer risks this type of sanction (Commission v Greece, 2015, para 47, case-law cited). Moreover, the penalty payment must be imposed only if the failure to fulfil obligations persists on the date of delivery of the judgment. A Member State can thus avoid penalty payments after the court proceedings if that Member State remedies its infringement prior to the ruling being handed down (Commission v Portugal, 2016, para 66). The ECJ may however still impose the payment of a lump sum (Commission v France, 2008, para 60).
7 A Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify the failure to observe obligations arising under EU law (Commission v France, para 72, Commission v Greece, 2009, para 45, Commission v Germany, 2007, para 38, and Commission v Portugal, 2008, para 22). In this regard, the procedure resembles Article 27 Vienna Convention on the Law of Treaties (1969) (‘Vienna Convention’; Vienna Convention on the Law of Treaties (1969)), which stipulates that States cannot plead domestic law to escape treaty obligations to which they have consented.
8 Article 260 (2) TFEU reads that the Commission shall ‘specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which … [it] considers appropriate in the circumstances’ (emphasis added). The Commission initially took the view that periodic penalty payments were more appropriate than lump sum payments as a means of achieving the essential objective of infringement proceedings, namely compliance at the earliest possible opportunity (Commission 13 th Annual Report on Monitoring the Application of Community Law, 1. See also Information from the Commission—Memorandum on Applying Article 171 of the EC Treaty). However, an illegal French ban on British beef made the Commission consider the option of a lump sum fine. See Commission 20 th Annual Report on Monitoring the Application of Community Law, 9). The Commission considered penalty payments to be a forward-looking remedy and lump sum payments to be of a more penal nature. The Commission’s position should be seen against the background that the Commission seemingly understood the two types of sanction to be mutually exclusive, as a strict literal interpretation of Article 260 TFEU would arguably also suggest, given the ‘or’. Applying a broad and teleological interpretation, Advocate General Geelhoed first recommended that a Member State should be ordered to pay both a lump sum and a penalty payment. The opinion prompted the ECJ to re-open the oral procedure. This allowed the parties and other Member States to express their views and France to prepare a new defence. The Commission had initially requested the Court to order France to pay a pecuniary penalty. The question now arose whether the ECJ could deviate from the penalty type considered most appropriate by the Commission. Several governments argued that such an interpretation would be incompatible with the principles of legal certainty, predictability, transparency and equal treatment. Moreover, Germany argued that the ECJ (as opposed to the Commission) lacked the ‘political legitimacy necessary to exercise such a power in a field where assessments of political expediency play a considerable role’. In addition, given the extensive nature of the power it would be against the ‘general principl e of civil procedure common to all the Member States that courts cannot go beyond the parties’ claims’. The ECJ, however, maintained that the judicial procedure under Article 260 (2) TFEU is sui generis and cannot be compared to civil procedure principles. Furthermore, the ECJ ruled that it has power to impose a penalty payment and a lump sum payment cumulatively (Commission v Greece, 2015, para 72). When establishing this, the ECJ also made a definite distinction between the administrative and judicial phases of Article 260 TFEU, as mentioned in the introduction. Questions concerning fines and their appropriateness and suitability are entirely within the ECJ’s judicial function once a case has been referred to it (Commission v France, 2005, para 103).
9 Penalty payments and lump sum payments constitute means of coercion and deterrence respectively (For a different analysis and conclusion, see Borzsák, 2011, 182–87). The two types of penalty thus have distinct functions yet serve the identical objective of inducing compliance with a judgment (Commission v France, para 80 in conjunction with para 84). The purpose of penalty payments is to induce a Member State to put an end as soon as possible to a breach which, in the absence of such measure, would tend to persist (Commission v France, 2005, para 81).
10 Lump sums are ‘based more on assessment of the effects on public and private interests of the failure … to comply’ (Commission v France, 2005, para 81, and Commission v France, 2008). When assessing such effect, the ECJ takes into account, in particular, the duration of the breach after the judgment initially establishing it was delivered and also the seriousness of the infringement (Commission v France, 2008, para 58, and Commission v Greece, 2016, para 102). If a Member State repeatedly infringes sector specific EU law a lump sum payment may be warranted (Commission v France, 2008, para 69).
11 In the Communication on the Application of Article 228 of the EC Treaty (2005) (‘Communication Article 228 EC Treaty’), the Commission talks about lump sums ‘penalising the continuation of the infringement between the first judgment on noncompliance and the judgment delivered under Article 228’. Consequently, they should be employed according to their particular capacity to meet those purposes and consistent with the circumstances of a given case (Commission v France, 2008, para 81). That being said, the ECJ has taken into account as a mitigating circumstance that a Member State has never failed to comply with any judgment previously given by the ECJ under Article 258 TFEU (Commission v Sweden, 2013, para 55).
12 When penalty payments are applied in isolation, the Member State in question may avoid sanctions altogether, given that Member States are liable only from the date of delivery of the second judgment. Consequently, the time between initiation of the infringement procedure for failure to comply with a judgment of the ECJ to the consecutive judgment is cost-free, so to speak. In making the lump sum fine operational, by clarifying that lump sum and penalty payments are not mutually exclusive, the ECJ has remedied this systemic deficiency. In addition, in the Communication Article 228 EC Treaty, the Commission explains that it will ‘from now include’ both types of sanctions in its applications to the ECJ (see Communication Article 228 EC Treaty, point 10.3). There may be situations where the Commission will exclusively ask for a lump sum to be imposed(see Communication Article 228 EC Treaty, point 10.5. Consequently, the Commission has changed its practice and no longer withdraws its action automatically when Member States comply before the judgment (Financial Penalties for Member States who fail to comply with judgments of the European Court of Justice: European Commission Clarifies rules, 5).
13 The Commission enjoys wide discretion under Article 260 TFEU generally and in relation to sanctions specifically (Commission v France, 2008, para 63). However, it has issued several communications concerning its approach to calculating fines. Thus, the Commission’s actions according to the third subparagraph of Article 260 (2) TFEU are relatively transparent, foreseeable and consistent with legal certainty (Commission v Greece, 2007, para 112; see also Smith, 2010, 547–70).
14 In the Communication Article 228 EC Treaty, the Commission established the basis on which the Commission calculates the amount of the financial sanctions that it requests the ECJ to apply when bringing a case before the ECJ under Article 260 TFEU. In 2010, the Commission updated the data used for this calculation. The macroeconomic data are subject to revision every year, to take into consideration inflation and gross domestic product (GDP) movements (Commission Communication 923/3). This Communication was updated in 2011 (Commission Communication 1024 final), in 2012 (Commission Communication 6106 final), in 2013 (Commission Communication 8101 final), in 2014 (Commission Communication 6767 final), in 2015 (Commission Communication 5511 final), and in 2016 (Commission Communication 5091 final), for the yearly adaptation of economic data. The amended communications also take account of the case law;_see, in this regard, Information from the Commission—Memorandum on Applying Article 171 of the EC Treaty (1996) and Information from the Commission—Method of Calculating the Penalty Payments Provided for Pursuant to Article 171 of the EC Treaty (1997), which were replaced in 2005 by Communication from the Commission—Application of Article 228 of the EC Treaty. The latter communication was amended by European Commission Communication SEC/2010/923. Commission Communication SEC/2011/1024 updates the data used to calculate lump sum and penalty payments in infringement proceedings.
15 The method of calculating penalty payments proposed by the Commission allows for variation consistent with the seriousness of the infringement, the duration of the infringement and the need to ensure that the penalty functions as a deterrent to further infringements. The Member States can thus argue against the relative significance of these parameters.
16 A flat-rate amount of 680 euros (Commission Communication, 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) per day is index-linked to a GDP deflator, rounded off and multiplied by a coefficient scaling from 1 to 20 reflecting the seriousness of the breach and with a coefficient between 1 and 3, depending on the duration of the infringement. The date of reference is the time the ECJ assesses the facts (eg, Commission v Italy, 2011, para 58). The ECJ takes account of recent trends in a Member State’s GDP and examples from case law demonstrates the need for that. Notably, Portugal’s GDP decreased by 7.4% between 2009 and 2013 (Commission v Portugal, 2016, para 78). Where appropriate, the ECJ acknowledges that immediate Member State compliance may be difficult to achieve. This is accommodated for in the coefficient that reflects the duration. (The Commission has likewise acknowledged that it takes more time and energy to bring some infringements to an end than others). According to case-law the duration is assessed by reference to the time when the ECJ assesses the facts (Commission v France, 2005, para 71, and Commission v Portugal, 2008, para 45). To ensure the effectiveness of the penalty, the final amount is multiplied by a coefficient supposed to match the Member State’s ability to pay. It is based on the Member States’ GDP and votes in the Council. The Council votes are politically determined and hence do not necessarily reflect genuine ability to pay. The ‘n’ factor was revised in 2016: Commission Communication, 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. This geometric mean, the ‘n’ factor, is, for instance, 0.64 for Estonia and 20.79 for Germany (Commission Communication, Application of Article 228 of the EC Treaty, point 18.1; and Commission Communication, 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). The Court has taken the Commission’s basic measures on board (Commission v Greece, 2009, para 115). However, the Commission’s propositions are merely considered to be ‘useful point[s] of reference’ (Commission v Greece, 2000, para 92, and Commission v Spain, 2003, para 52). Thus, the ECJ is by no means bound by them (Commission v Greece, 2000, para 89, and Commission v Spain, 2003, para 41). Finally, the ECJ ensures that the penalty payment is appropriate to the circumstances and proportionate to the infringement and the Member State’s ability to pay (Commission v Greece, 2009, para 114).
17 When the Commission proposes a lump sum fine, it proposes a minimum fixed lump sum payment based on the same ‘n’ factor. In addition, the Commission operates with a method of calculation that resembles the approach it takes to penalty payments. The Commission only applies this method if it exceeds the established minimum lump sum. The Commission multiplies a flat-rate amount (the standard flat rate for the lump sum payment is currently fixed at 220 euros per day, see Commission Communication, Application of Article 228 of the EC Treaty, 9; and Commissio n Communication, 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) by a coefficient reflecting the seriousness of the infringement on a scale of 1 to 20, a nd by factor n, which reflects the capacity of each Member State to pay. It then proposes a lump sum by ‘multiplying a daily amount by the number of days the infringement persists between the date of delivery of the judgment under Article 226 [Art 258 TFEU] and the date the infringement comes to an end, or, failing compliance, the date of delivery of the judgment under Article 228 [Art 260 TFEU]’ (Commission Communication—Application of Article 228 of the EC Treaty, 21).
18 The special ‘n’ factor and the minimum lump sum (in euros) for the 28 EU Member States are set out in the Commission’s 2016 update (Commission Communication—Application of Article 228 of the EC Treaty and Commission Communication—Updating of data used to calculate lump sum and penalty payments to be proposed by the Commission to the European Court of Justice in infringement proceedings). The ‘n’ factor and the minimum lump sum vary between 0.35 for the ‘n’ factor and €197,000 for the minimum lump sum payment concerning Malta and an ‘n’ factor of 20.79 and a minimum lump sum payment of €11,721,000 concerning Germany.
19 Initially the Commission maintained that periodic payments should be imposed on a daily basis (Information from the Commission — Method of Calculating the Penalty Payments Provided for Pursuant to Article 171 of the EC Treaty, para 1). The ECJ however rejects the assumption that periodic payments should necessarily be imposed with respect to each day’s delay. In view of the circumstances in the case Commission v Spain, the ECJ imposed pecuniary penalties on an annual basis (Commission v Spain, 2003, para 46). Penalty payments can also, for instance, be imposed every six months of delay in complying with a judgment and, if relevant, decrease (Commission v Greece, 2014, para 65). Finally, the ECJ may decide to defer the point at which the penalty payment takes effect. The Member State thus gains time to demonstrate that it has brought the infringement to an end. In Commission v Greece for instance, the penalty payment was deferred until one month after delivery of the judgment (Commission v Greece, C-369/07, 2009, para 125).
20 The importance of immediate and uniform application of EU law means that the process of compliance with the ECJ’s judgment under Article 258 TFEU must be initiated at once and completed as soon as possible (Commission v Greece, 2000, para 82). Sometimes though, infringements are only gradually remedied. Advocate General Colomer first raised the question of how to deal with these situations (Commission v Greece, 2000). This is an issue of importance in view of the general EU principle of proportionality, which requires that fines should be proportional to a given breach and appropriate in view of a case’s circumstances (Commission v Spain, 2003, para 52). The question was addressed in Commission v Spain, where the ECJ acknowledged that awarding a static fine would potentially be inappropriate to the circumstances and non-proportionate to the breach (Commission v Spain, 2003, para 52). It has now been clarified that the amount can decrease and thus, take account of gradual progress (Commission v Greece, 2014, para 60 and case law cited). The ECJ thus established a more nuanced conception of compliance in relation to the penalty payment instead of the absolute distinction between compliance and non-compliance advocated by the Commission (on this distinction, see furthermore opinion of Advocate General Mischo in Commission v Spain, 2003, point 77).
21 The burden of proof rests with the Commission and continues to do so after the amendment of Article 260 TFEU. Thus, the Commission shall provide the ECJ with the information necessary to determine whether a Member State has complied with a judgment (Commission v Greece, 2000, para 73). However, if the Commission provides sufficient evidence to suggest that the alleged breach persists, the Member State shall challenge, in a detailed manner, the substantive content of that evidence and prove that the breach has ceased (Commission v France, 2005, para 56, and Commission v Italy, 1999, paras 84–87).
22 The Commission had reservations about the effectiveness of sanctions prior to the Maastricht Treaty, but eventually proclaimed it a useful enforcement tool. Later, the Commission submitted a proposal to the Convention discussion circle on the ECJ concerning enforcement of transposition of directives. It suggested a mechanism whereby the Commission could initiate before the ECJ—both in the same procedure—proceedings for failure to fulfil an obligation and an application to impose a sanction in cases of failure to communicate a national transposition measure (European Convention, Final report of the discussion circle on the Court of Justice, and European Convention, Articles on the Court of Justice and the High Court, 16). The Lisbon Treaty introduced such a special, fast-track enforcement procedure aimed at failure to notify measures transp osing a directive adopted under a legislative procedure. According to Article 260 (3) TFEU, the Commission may request that the ECJ impose a lump sum or penalty payment already when bringing a case before the ECJ pursuant to Article 258 TFEU. The adopted procedure thus breaks with the traditional method of enforcement whereby pecuniary sanctions were reserved for repetitive infringements.
23 The amended system consequently distinguishes between types of infringements that concern interpretation of EU law and failure to notify the Commission of measures transposing a directive. The two situations raise questions of substantive compliance and procedural compliance, respectively. Article 260 (3) TFEU concerns the latter situation only. In this way, the Commission still pursues wrongful implementation according to the procedure established in Article 260 (2) TFEU. Wennerås points out that the scope of the obligation to notify ‘measures transposing a directive’ and the scope of the notion ‘notify’ is not always straightforward (2012, at 145–76 and at 166–67). Timely transposition does not necessarily guarantee substantive compliance. However delayed transposition is per se disruptive for the EU legal order, in that it creates uncertainty for citizens and legal individuals alike and it prevents the Commission from monitoring correct application. (The general practice of correlation tables constitutes an important means for individuals to obtain information on the national implementation of directives; see Commission communication—A Europe of Results—Applying Community Law). Moreover, transposition is an indispensable condition for compliance with exception of those situations where there is a perfect fit between EU law and already existing domestic legislation. (The obligation to implement directives persists irrespective of whether provisions of a directive have direct effect; see eg Commission v France, 1997, paras 14 and 15.)
24 The Member States enjoy various degrees of autonomy in implementing and enforcing EU law. Interpretation of EU law and appraisal of Member State behaviour can be a complex exercise. The duty to fulfil an obligation to notify measures transposing a directive adopted under a domestic legislative procedure is more straight-forward. Consequently, there is good reason to single out non-transposition and maintain the normal framework for other infringements generally.
25 According to Article 260 (3) TFEU the Commission ‘may, when it deems appropriate’, request pecuniary sanctions. Thus, the wording sustains the wide discretion enjoyed by the Commission according to Article 260 TFEU. The Commission has issued a communication explaining how it intends to make use of the procedure (Commission Communication, Implementation of Article 260(3) of the Treaty). After asserting its wide discretion according to the procedure, the Commission notes that the ‘instrument should be used as a matter of principle in all cases of failure to fulfil an obligation covered by this provision …. The importance of ensuring transposition by Member States within the deadlines laid down applies equally to all legislative directives, there being in principle no reason to distinguish between them’. (Commission Communication—Implementation of Article 260(3) of the Treaty). Whether this is motivated by a wish to ensure some degree of equality or for enforcement reasons is unclear. Since the late 1970s the Commission has attempted to ensure some degree of equality of treatment of Member States (Timmermans, 1994, 396). In any case, as Timmermans points out, there are no objective grounds to treat differently when it comes to failures to notify.
26 Article 260 (3) TFEU undoubtedly implies a strengthening of the Commission’s enforcement powers. The same applies to the ECJ, although its powers are curtailed in comparison with the powers it enjoys according to Article 260 (2) TFEU. Thus, Article 260 (3) TFEU specifically stipulates that the ECJ may impose a lump sum or penalty payment ‘not exceeding the amount specified by the Commission’. It follows from Article 260 (3) TFEU that the payment obligation shall take effect on the date set by the ECJ in its judgment.
27 This entry appraised penalty payments under the general EU enforcement procedure against repetitive infringements and the special fast-track enforcement procedure concerning non-transposition of directives.
28 After more than two decades of case-law the contours of a mature procedural framework begin to materialise. Notably, the ECJ has established a strict separation between the administrative and judicial phases of Article 260 (2) TFEU. Whereas the Commission enjoys broad and semi-political discretion throughout the administrative phase, the ECJ has wide discretion after a case has been referred to it for a judgment. This is both with regard to the initial awarding of sanctions, the type of sanction, the amount and the frequency with which periodic penalties are imposed. Moreover, the ECJ has taken a noticeably strict stance on repetitive infringements under the procedure. This includes imposing both lump sum and penalty payments on its own motion and awarding sanctions in situations where the Commission no longer requests it do so.
29 A very important element of Article 260 (2) TFEU is the capacity of the procedure to bolster interactive processes of discourse and problem solving between the Commission and a given Member State in the period prior to actual judgment. However, when such an approach fails, the supervisor can fall back on sanctions. For sanctions to work there also needs to be not just initial, but continual consensus for maintaining them up until the point of compliance. Under many multilateral sanctioning schemes this comes down to the sum of political willingness of the sanctioning states. EU sanctions, however, do not depend upon any such consensus. Where a sanction takes the form of a periodic penalty payment it will be imposed until the infringement has been terminated. Significantly, this is a legal rather than political assessment and it keeps Member States under sustained pressure to comply.
