EUROPEAN Law Reporter

Juni 2014
n° 6
IM FOKUS
Between Certainty, Severity and Proportionality:
Some Reflections on the Nature and Functioning
of Article 260(3) TFEU
170
Juni 2014 n° 6
European
Law Reporter
Inhaltsverzeichnis
Board of Editors
PROF. DR. DR.
CARL BAUDENBACHER
LUXEMBURG/
ST. GALLEN (PRÄSIDENT)
PROF. DR. DR.
GENERALDIREKTOR A.D.
WALTER BARFUß
WIEN
FÜRSTLICHER RAT
ALT REGIERUNGSCHEF
HANS BRUNHART
VADUZ
PROF. DOTT.
ALDO FRIGNANI
AVVOCATO
TORINO
PROF. DR.
CHRISTIAN KOHLER
SAARBRÜCKEN
RECHTSANWALT DR.
FRANK MONTAG
BRÜSSEL
DR. SVEN NORBERG
BRÜSSEL
EUROPEAN
L AW
REPORTER
E L R
6 / 2 0 1 4
no 6
E u ro p e a n L a w R e p o r t e r
Nils Wahl* and Luca Prete**, Luxemburg
Between Certainty, Severity and Proportionality:
Some Reflections on the Nature and Functioning
of Article 260(3) TFEU
Article 260(3) TFEU: When the Commission brings
a case before the Court pursuant to Article 258 on
the grounds that the Member State concerned
has failed to fulfil its obligation to notify measures
transposing a directive adopted under a legislative
procedure, it may, when it deems appropriate,
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.
If the Court finds that there is an infringement it
may impose a lump sum or penalty payment on
the Member State concerned not exceeding the
amount specified by the Commission. The payment obligation shall take effect on the date set
by the Court in its judgment.
(1) Introduction
Im Fokus
In his seminal work, «Of Crimes and Punishments», dated 1764, Cesare Beccaria wrote that
«crimes are more effectually prevented by the certainty than the severity of punishment», and that
«there ought to be a fixed proportion between
crimes and punishments».1
170
In today’s society, too, it is commonly accepted
that most systems of law enforcement cannot do
without providing some form of punishment for
offenders. In modern legal thinking, one of the
main functions attributed to punishment is to
deploy «general preventive effects»: the
threat of punishment is thought to have a deterrent effect and it is supposed that most individuals
refrain from breaking the law because they are
aware of the risk of being caught and, consequently, punished.
For that threat to be effective, the punishment
prescribed must be sufficiently severe and
sufficiently certain.
It cannot be disputed that, in order to be taken seriously, punishment must have a certain degree of
severity. Punishment with mere symbolic value,
or which could be perceived as not particularly to
be feared, might not discourage many individuals
from breaking the law. On the other hand, however, punishment which is out of all proportion to
the negative effects of the misconduct can by no
means be acceptable.2 In that regard, for example,
Article 49(3) of the Charter of Fundamental Rights
of the European Union states: «[t]he severity of
penalties must not be disproportionate to the
criminal offence».3 This provision reflects a principle which is deeply rooted in,4 but by no means
restricted to,5 European legal culture. That principle can also be regarded as a manifestation, in
the sphere of enforcement laws, of the more
general principle of proportionality, which
is known to be a key notion within the EU legal
order,6 and which has been accepted as such also
within the EEA legal order.7
Few would disagree, instead, that the higher the
risk of detection, the more effective the system of
law enforcement. It could be said that the deterrent effect of punishment is a function of the
certainty – and, ideally, the rapidity – with
which such punishment may be imposed upon the
offender.
Thus, without any attempt to specify the optimal
level of punishment needed to deter potential
offenders,8 it can safely be said that, in today’s
society, too, Beccaria’s theses remain by and large
valid: the certainty of punishment is often more
important, or at least more effective, than its
severity; and a rational relationship between the
offence committed and the punishment inflicted
is seen as a fundamental requirement of any
system of law enforcement.
Clearly, it should not be lightly assumed that all
these principles are necessarily applicable when it
comes to legal action against entities, such as
States, for infringement of treaty obligations. One
such enforcement mechanism under the EU
Treaties is the infringement action brought by
the European Commission («the Commission»)
against the Member States. A new aspect of that
procedure is now to be found in Article 260(3)
TFEU. With that provision, the Treaty of Lisbon
introduced for the first time the possibility for the
Commission to ask for a sanction to be imposed
on a defaulting Member State, when an action
for failure to notify the measures transposing a directive is first lodged with the Court of Justice of
the European Union («the Court of Justice»).
However, it appears that, at least in the context of
that action, the above-mentioned principles of en-
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E u ro p e a n L a w R e p o r t e r
forcement law are, mutatis mutandis, also valid.
Indeed, it would seem that the cost of the financial penalties translates, more importantly,
into a «political cost» which the governments
of the defaulting Member States risk paying either
at the negotiating table in Brussels or in the
arena of national politics.
For this reason, almost five years after the entry
into force of the Treaty of Lisbon, and more than
three years after the Commission published its ad
hoc Communication on the implementation of
Article 260(3) TFEU,9 no case brought on the basis
of that provision has yet led to a judgment of the
Court of Justice, let alone to the imposition of any
sanctions.10 In fact, despite the relatively high
number of cases introduced on the basis of that
provision, every single one of them11 has – so far –
been withdrawn by the Commission on the
grounds that the Member State in question had
succeeded in transposing the directive in question
into national law while the proceedings were
pending.12
That alone attests to the value of the new
pro vision, which appears to be highly effective.
It would seem that the threat of sanctions under
Article 260(3) TFEU provides a powerful incentive
for Member States to complete the transposition
process within a relatively short time-frame, even
though the same Member States had been unable
or reluctant to do so within the (potentially much
longer) period allowed under the relevant directives.
Yet, this also means that, to date, the Court of
Justice has not had the opportunity to provide any
clarification as to the real nature and the precise functioning of the new sanction mechanism.
This aspect is not to be neglected, given that the
wording of the new Treaty provision seems to raise
several interpretative issues.
The aim of the present article, therefore, is to explore the possible nature and functioning of the
mechanism laid down in Article 260(3) TFEU, with
a view to contributing to a debate which has already been sparked among legal scholars and
which, at some point in time, will inevitably reach
the Court.
States that fail to meet their obligations under EU
law.
As its wording makes clear («[w]hen the Commission brings a case before the Court pursuant to
Article 258»), Article 260(3) TFEU does not,
however, create a new and self-standing Court
procedure. It only introduces a sanction mech anism which allows the Commission to seek,
in the context of standard infringement proceedings, an additional form of order, for the imposition of sanctions (a lump sum and/or penalty
payment) upon the defaulting Member State.
Recourse to Article 260(3) TFEU is dependent
upon the fulfilment of two conditions: first, the
Member State in question must have failed
to «notify measures transposing a di rective» (first condition); second, the directive in
question must have been «adopted under a
legislative procedure» (second condition).
Before turning to analyze the meaning of these
two conditions, it may be useful to make some
general reflections on the nature and purpose of
this new mechanism.
A first issue which should be explored is whether
the new mechanism is meant to penalize directly
the failure to notify transposition measures or,
conversely, the non-implementation of judgments
handed down by the Court of Justice declaring
Member States to be in breach of their obligation
to notify transposition measures.
In its 2011 Communication, the Commission
suggests that the former interpretation is the
correct one. If that is so, failure to notify transposition measures within the period laid down in
the directive itself could, ipso facto, give rise to the
imposition of financial sanctions. The financial
sanctions could either apply immediately, as from
the date of delivery of the judgment, or not until
the end of a period of grace that the Court of Justice may grant to the Member State in question.13
(2) The Nature and Purpose of Article 260(3)
TFEU
That is, of course, a possible reading of the new
provision – and it has also been proposed by some
authors in their writings.14 On the other hand,
there are a number of other elements which seem
rather to suggest that the latter interpretation of
the new Treaty provision is to be preferred.15 Five
elements, in particular, will be discussed in this
article.
Article 260(3) TFEU is a provision which boosts
the arsenal of court procedures available to the
Commission in order to act, in fulfilment of its
role as guardian of the Treaties, against Member
In the first place, the genesis of Article 260(3)
TFEU – which, according to settled case-law, may
provide information relevant to its interpretation16
– indicates that the underlying intention was to
171
ELR 6/2014
n° 6
European Law Reporter
GESCHÄFTSLEITUNG
Dr. rer. pol. Doris Baudenbacher-Tandler, Luxemburg
REDAKTION
Dr. Philipp Speitler (Chefredaktion)
Michael-James Clifton, LL.B.(EU), LL.M.(Adv), Barrister (Stellv. Chefredakteur)
Ref. iur. Moritz Am Ende (Staatliche Beihilfen)
Prof. Dr. Jochen Glöckner, LL.M. (Immaterialgüterrecht)
RA Ferdinand Ochs / Univ.-Prof. Mag. Dr. Tina Ehrke-Rabel (Steuerrecht)
RA Stefan Lars-Thoren Heun-Rehn, Mag. jur., LL.M. (Bank- und Kapitalmarktrecht)
Dr. Henning Kahlert, LL.M. (IT- und Datenschutzrecht)
Dr. Vincent Kronenberger (Wettbewerbsrecht)
Ref. iur. Romen Link (Markenrecht)
Mag. Dr. Klaus Mayr, LL.M. (Arbeits- und Sozialrecht)
RA Markus Rübenstahl, Mag. iur. (Justiz und Inneres)
Dr. Magnus Schmauch, LL.M. (Staatliche Beihilfen)
PD. Dr. Myriam Senn, LL.M. (Finanzdienstleistungsrecht)
Dr. Gabriel N. Toggenburg, LL.M. (Institutionen und Grundfreiheiten)
RA Dr. Alexander Wittwer, LL.M. (Europäisches Zivilprozess- und Kollisionsrecht)
Dr. Christine Würfel
AUTOREN (INNEN) DIESER AUSGABE
Generalanwalt Nils Wahl, Luxemburg
Avv. Luca Prete, LL.M, Référendaire, Luxemburg
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