| | 31989L0665: ru1-2.1.1.c.p2Payment of sum    
| 31992L0013 - Remedies Utilities (1st generation) | Article 2.1.1.c.p2 | | ..... in particular, making an order for the payment of a particular sum, in cases where the infringement has not been corrected or prevented. |
| Case | Pte | Ref | Text | C-225/97
France | 20-28 | RU1-2.1.1.c.p2
RU1-2.5 | 20 The first point to note is that it is common ground that the Commission does not dispute the French Republic's decision to avail itself of the option provided for in Article 2(1)(c) of the Directive.
21 As regards that choice, however, the Commission maintains, first, that the transposition into national law of Article 2(5) of the Directive - under which the sum to be paid in accordance with Article 2(1)(c) must be set at a level high enough to dissuade the contracting entity from committing or persisting in an infringement - requires a provision relating specifically to the level of penalty payments, either stating that they must be such as to have the dissuasive effect required or limiting the discretion enjoyed by the courts in determining that level. According to the Commission, if no such provision is made, the competent court will be prey to uncertainty.
22 The French Government contends that the Directive is silent as to any obligation on Member States to determine the amount of the payment and, given the diversity of the circumstances which may arise, it is important to allow the courts to set the amount in keeping with their assessment of the facts in each case, since it must be sufficiently high to ensure that the Directive's objectives are attained.
23 Article 2(5) of the Directive expressly provides that the sum to be paid in accordance with Article 2(1)(c) must be set at a level high enough to dissuade the contracting entity from committing or persisting in an infringement, but does not indicate whether the amount is to be fixed by the legislature or by the competent court.
24 As the Advocate General pointed out in point 13 of his Opinion, a penalty payment, being a coercive measure primarily intended to ensure that the court's decisions are complied with, is a deterrent in itself. Consequently, a provision laying down that the sum to be paid in accordance with Article 2(1) of the Directive must be set at a level high enough to be dissuasive does not as such affect or reinforce the latter provision.
25 Furthermore, the French Government contends - and the Commission offers no effective rebuttal - that in French law the penalty payment is by nature a coercive measure and an effective means of preventing non-compliance with court orders.
26 The Commission's next ground of complaint concerns the fact that Articles 1 and 4 of Law No 93-1416 provide, not only that the fixed penalty payment can be ordered only once the periodic penalty payment order has been cancelled, but also that, in setting the level of the fixed payment, account must be taken of the conduct of the party against whom the order was made and the difficulties it may have encountered in complying therewith. According to the Commission, the discretion thus left to the courts is limited by considerations which have been so vaguely defined that the system will be unable to operate properly.
27 On that point, it should be noted first that Article 2(1)(c) of the Directive merely requires the Member States which have chosen that option to take measures so that, in cases where the infringement has not been corrected or prevented, an order may be made under appropriate procedures for payment of a specific sum. Article 2(5) provides that this must be set at a level sufficiently high to dissuade the contracting entity from committing or persisting in an infringement, but does not specify whether the penalty payment must be fixed or periodic. Contrary to the Commission's assertion, Article 2(5) does not provide that the courts may order only fixed penalty payments in order to prevent or correct an infringement.
28 Secondly, as regards the Commission's argument that Articles 1 and 4 of Law No 93-1416 create - wrongly, in its view - a link between the penalty payment and the conduct of the party ordered to pay, it follows by definition from the right to a fair trial that, in procedures of the type laid down in Article 2(1)(c) of the Directive, the courts cannot disregard the conduct of that party or the difficulties which it has encountered in order to comply. |
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