HAVET & VANHUFFEL – Association d’avocats
In a judgment of 22 January 2026 (Case C‑206/23), the Court of Justice of the European Union (CJEU) orders the Republic of Bulgaria to pay the European Commission a lump sum of €1,500,000 and a daily penalty of €9,000 for failing, within the time limit set for this purpose, namely 30 June 2021, and also at the date of the Court’s examination of the facts, to adopt the necessary measures to transpose into its national law the provisions of Directive 2018/2001 on renewable energy, and, accordingly, to communicate those measures to the European Commission, thereby persisting in its failure.
The European Commission found that, at the expiration of the transposition deadline of 30 June 2021, Bulgaria had not communicated the necessary measures to comply with Directive 2018/2001 on renewable energy. In the absence of any information, the Commission sent Bulgaria a letter of formal notice on 23 July 2021.
In response, Bulgaria indicated in September 2021 that the directive would be transposed through a law amending the national law on energy from renewable sources (ZEVI). It stated that the draft law was under preparation, but that parliamentary review depended on the legislative elections scheduled for November 2021. In the following months, Bulgarian authorities kept the Commission informed of progress, while citing difficulties, in particular regarding EU State aid rules.
Due to the lack of concrete progress and the absence of formal notification of transposition measures, the Commission sent a reasoned opinion to Bulgaria on 2 December 2021 and subsequently decided to bring the case before the Court on 26 January 2023, more than 18 months after the expiration of the transposition deadline. Bulgaria continued to update the Commission on legislative progress, invoking, among other things, the dissolution of the National Assembly and the holding of new elections.
In November 2023, Bulgaria stated that the law amending and supplementing the ZEVI had finally been adopted and entered into force in October 2023, while noting that implementing acts were still ongoing. It requested that the Commission withdraw its case. However, the procedure was suspended and later resumed, notably following a judgment in a comparable case.
In 2024 and 2025, Bulgaria submitted new evidence to demonstrate the full transposition of the directive. The Commission nevertheless found that several essential provisions had not yet been transposed or had been only partially transposed and refused any withdrawal or amicable settlement. Despite the adoption of a new law in second reading in May 2025, the Commission maintained that Directive 2018/2001 had still not been fully transposed into Bulgarian law.
The Court recalls its consistent case law that the existence of a failure must be assessed at the date of expiry of the time limit set in the reasoned opinion addressed to the Member State, without taking into account measures taken after that date. In this case, Article 36 of Directive 2018/2001 required Member States to transpose the necessary provisions by 30 June 2021 and to notify the Commission.
The Court emphasizes that transposition of a directive requires the adoption of a positive measure containing a reference to the directive or accompanied by such a reference upon official publication. In the case of Bulgaria, at the expiration of the two-month period set in the reasoned opinion of 2 December 2021, the Member State had neither adopted nor communicated all the necessary legislative, regulatory, and administrative measures, which Bulgaria does not substantially contest.
Bulgaria invoked “force majeure” arguments, citing, on the one hand, the COVID-19 pandemic and, on the other, a “legislative crisis” due to repeated dissolutions of the National Assembly and successive elections. The Court rejects these arguments: the pandemic only affected Bulgaria from March 2020 and did not prevent submission of a draft law before the expiration of the deadline; as for the “legislative crisis,” it only concerned the last two months of the period and cannot justify the delay.
In conclusion, the Court finds that, by failing to adopt the necessary measures and communicate them to the Commission by the deadline, the Republic of Bulgaria breached its obligations under Article 36 of Directive 2018/2001.
The Court also ruled on a request for a lump sum and a daily penalty under Article 260 of the Treaty on the Functioning of the European Union (TFEU). Article 260(3) TFEU allows the Commission, in a procedure under Article 258 TFEU, to propose to the Court a lump sum or a daily penalty to be imposed on a Member State that has not communicated the transposition measures of a directive adopted through a legislative procedure. The Court may confirm these sanctions, within the limit proposed by the Commission, to incentivize the Member State to comply with its obligations.
The Court finds that, at the expiration of the time limit set in the reasoned opinion, Bulgaria had not communicated to the Commission the legislative, regulatory, and administrative measures necessary to fully transpose Directive 2018/2001. This failure falls within the scope of Article 260(3) TFEU and justifies the sanction procedure.
Article 260(3) TFEU aims to accelerate the end of infringements and prevent their recurrence. It provides for two types of sanctions: a lump sum, to penalize the gravity and consequences of the failure, and a daily penalty, to encourage the swift end of the persistent failure.
Regarding the gravity of the failure, the Court considers that the total lack of communication of transposition measures and Bulgaria’s prolonged delay constitute a serious infringement. Although some provisions were partially transposed, the delay slowed the achievement of the directive’s objectives, notably promoting renewable energy and the EU’s energy security, affecting both public and private interests.
Regarding the duration of the infringement, it is assessed at the date of closure of the procedure. In this case, the failure persisted for more than three years and ten months after the transposition deadline. The COVID-19 pandemic may partially explain this delay but does not fully justify it.
To determine the amount of the sanctions, the Court considers the financial capacity of the Member State, particularly its GDP, to ensure that the penalty is both dissuasive and proportionate. Population size is not a decisive factor in this calculation.
Given the gravity of the failure, its duration, and the importance of the objectives of Directive 2018/2001, the Court considers it appropriate to impose on Bulgaria a lump sum of €1,500,000 to prevent the repetition of similar violations in the future.
The Court also considers that a daily penalty is justified as long as the failure persists, to encourage Bulgaria to adopt the necessary measures promptly. It sets this penalty at €9,000 per day, from the date of delivery of the judgment until full cessation of the infringement.
For these reasons, the Court rules that:
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By failing, at the expiration of the time limit in the Commission’s reasoned opinion of 2 December 2021, to adopt the legislative, regulatory, and administrative measures necessary to comply with Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources, and, accordingly, by failing to communicate those measures to the Commission, the Republic of Bulgaria breached its obligations under Article 36 of that directive.
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By failing, at the date of the Court’s examination of the facts, to adopt the measures necessary to transpose the provisions of Directive 2018/2001 into its national law and to communicate them to the European Commission, the Republic of Bulgaria persisted in its infringement.
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The Republic of Bulgaria is ordered to pay the European Commission a lump sum of €1,500,000.
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If the infringement persists at the date of delivery of this judgment, the Republic of Bulgaria is ordered to pay the European Commission a daily penalty of €9,000 from that date until the infringement has ceased.
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The Republic of Bulgaria must bear, in addition to its own costs, those incurred by the European Commission.
To access the full judgment, follow the link: https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX%3A62023CJ0206&qid=1395932669976.