HAVET & VANHUFFEL – Association d’avocats
In a judgment of 27 March 2025 (C–515/23), the Court of Justice of the European Union ordered Italy to pay the European Commission a lump sum of €10,000,000 and a penalty payment of €13,687,500 forper half–year of delay in implementing the measures imposed on it by its judgment of 14 April 2014 (C–85/13) on wastewater collection and treatment for four Italian agglomerations.
In a judgment of 10 April 2014, the Court of Justice of the European Union, referred to by the Commission in an action for failure by Italy to fulfil obligations in relation to waste water treatment, found that Italy had not implemented the measures imposed on it by Council Directive 91/271/EEC of 21 May 1991 „on urban waste water treatment„, as amended by Regulation No 1137/2008 of the European Parliament and of the Council of 22 October 2008.
For several agglomerations, the failure to fulfil obligations consisted of discharges of urban waste water into receiving waters considered to be ‚sensitive areas‚ within the meaning of Article 5 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment, as amended by Regulation No 1137/2008 of the European Parliament and of the Council, of 22 October 2008.
For other agglomerations with a population equivalent of more than 10 000, urban waste water entered the collecting systems without having been subjected to secondary or equivalent treatment, in accordance with Article 4 of Directive 91/271, as amended by Regulation No 1137/2008.
In the case of still other agglomerations with a population equivalent of more than 10 000 and wich decharge their waste water into receiving waters regarded as ‚sensitive areas‚ within the meaning of Directive 91/271, as amended by Regulation No 1137/2008, urban waste water entering collecting systems was not subject to, before being rejected, of a treatmantthat is more rigorously than secondary treatment or equivalent treatment, in accordance with Article 5 of that directive.
Finally, for still other agglomerations, urban waste water treatment plants were not designed to meet the requirements of Articles 4 to 7 of Directive 91/271, as amended by Regulation No 1137/2008, in that they were not designed, constructed, operated and maintained in such a way as to have sufficient efficiency under all the normal climatic conditions of the place where they were located and the treatment plants were not designed to meet the requirements of Articles 4 to 7 of Directive 91/271, as amended by Regulation No 1137/2008. to take into account seasonal variations in loading.
The judgment of 14 April 2024 can be consulted via the following link: https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX:62013CJ0085
Following this judgment, the Italian Republic has taken certain measures and solved many problems but has remained, despite the European Commission’s formal notices, failing to resolve the problems for 4 agglomerations.
Again seized of an action for failure to fulfil obligations by the Commission, the Court of Justice of the European Union found, in its judgment of 27 March 2025
After the Italian Republic had been given formal notice, the Commission brought a new action against Italy for failure to fulfil obligations.
The Commission criticised the Italian Republic for not having taken all the measures necessary to comply with the judgment in Case C-85/13 by the expiry of the period laid down in the letter of formal notice, namely 18 July 2018, but also by 30 June 2023, the date of the last update of the status of compliance with that judgment in the five agglomerations referred to in the action, namely Castellammare del Golfo I, Cinisi, Terrasini, Trappeto (Sicily) and Courmayeur (Valle d’Aosta), with a population equivalent of more than 10 000, with the result that the obligations arising from Articles 4, 5 and 10 of Directive 91/271 had not yet been complied with.
It sought payment of a single sum and a periodic penalty payment to be paid by the Italian Republic.
The Court of Justice of the European Union, in its judgment of 27 March 2025, found that, under Article 260(2) TFEU, if the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgment of the Court, it may refer the matter to the Court, after giving that Member State the opportunity to submit its observations, indicating the amount of the lump sum or periodic penalty payment to be paid by that Member State which it considers appropriate in the circumstances.
The Court then finds that, in fact, the Italian Republic has not taken all the measures to comply with the judgment in Case C-85/13, with the result that it has failed to fulfil its obligations under Article 260(1) Founding Treaty of the European Union.
In the Court’s view, considers, as regards the periodic penalty payment, that the purpose of the procedure laid down in Article 260(2) Founding Treaty of the European Union, is to induce a defaulting Member State to comply with a judgment for failure to fulfil obligations and, therefore, to ensure the effective application of EU law, and that the measures provided for in that provision, namely the penalty payment and the lump sum, both have the same objective.
The Court confirms its case-law according to which the application of a penalty payment and a lump sum depends on the ability of each party to fulfil the objective pursued in the circumstances of the case and, in those circumstances, it is not precluded to have recourse to the two types of penalties provided for.
In the Court‚s view, although the imposition of a periodic penalty payment seems particularly appropriate to encourage a Member State to bring to an end, as soon as possible, a failure to fulfil obligations which, in the absence of such a measure, would tend to persist, the imposition of a lump sum is based more on the assessment of the consequences of the failure of the Member State concerned to fulfil its obligations on private and public interests, in particular when the breach has persisted for a long period since the judgment which initially found it.
The Court then points out that it is for it, in each case and in the light of the circumstances of the case before it and the level of persuasion and deterrence which it considers to be required, to adopt the appropriate financial penalties, in particular to prevent the repetition of similar infringements of EU law, with the result that the Commission‚s proposals cannot bind the Court and constitute only a useful reference point. Similarly, guidelines such as those contained in the Commission‚s communications are not binding on the Court, but help to ensure the transparency, predictability and legal certainty of the Commission‚s action.
For those reasons, the Court of Justice of the European Union finds that, by failing to take all the measures necessary to comply with the judgment of 10 April 2014 in Case C-85/13 Commission v Italy, the Italian Republic has failed to fulfil its obligations under Article 260(1) TFEU;
It ordered the Italian Republic to pay the European Commission a lump sum of EUR 10 million.
In the event that the failure to fulfil obligations established in paragraph 1 persists on the day of its judgment, i.e. 27 March 2025, the Court orders the Italian Republic to pay the European Commission a penalty payment of EUR 13 687 500 for each six–month period of delay in implementing the measures necessary to comply with the judgment of 10 April 2014, Commission v Italy (C–85/13), from the date of delivery of the judgment of 27 March 2025 until full compliance with the judgment of 10 April 2014 in Case C–85/13 Commission v Italy, the actual amount of which must be calculated at the end of each six–month period by reducing the total amount relating to each of those periods by a percentage corresponding to the proportion representing the number of population equivalents of agglomerations whose systems of collection and treatment of urban waste water were brought into line with the judgment of 10 April 2014, Commission v Italy (C–85/13), at the end of the period under consideration, in relation to the number of equivalent inhabitants of agglomerations without such systems on the date of delivery of the judgment of 27 March 2025.
The judgment of 27 March 2025 is available via the following link: https://curia.europa.eu/juris/document/document.jsf?text=&docid=297241&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1574997