Alexander Kornezov[1]


Defining the level of the fine which can be imposed on a Member State for violation of EU law under Article 260 TFEU has turned out to be a tough conundrum for the European Court of Justice. On the one hand, the treaties bestow on the latter full jurisdiction to impose sanctions on Member States and to define the level and the kind of these sanctions. On the other hand however, the treaties have been silent not only as to the scale of these fines but also as to how they should be calculated, mentioning only implicitly that they should be “appropriate in the circumstances”.

The European Commission has taken the initiative to fill in the gap by issuing a Communication on the application of Article 228 of the EC Treaty in which it sets out in detail how it is going to calculate the level of the fines which it would then propose to the ECJ. The communication thus proposes two formulae based on fixed coefficients backed up by a number of criteria which can be used to define the exact level of each coefficient.

The reaction of the ECJ has been all but consistent. On the one hand, it has said that the aforementioned communication is not binding law and it could therefore deviate from it. Nonetheless, the communication in question is, in the view of the ECJ, a “useful point of reference”. A further look into the case law shows that the ECJ has, as a matter of fact, approved both the criteria and the coefficients and formulae set out in the communication. By doing so however, the ECJ has not shied away from showing that it is prepared to review and rectify, as the case may be, both the level and the scale of the coefficients applied by the Commission, thus modifying the final amount of the fine. This approach of the ECJ, which is most visible in the case of periodic penalty payments, uses as a step stone the methodology of the Commission which it then reviews and rectifies, if need be. The said approach has the clear advantage of predictability, transparency and provides a solid basis for ensuring equal treatment of Member States.

On the other hand, the case law also harbours a number of examples where the ECJ did not spell out the methodology by which it had arrived at a given level of the fine. This holds true particularly as far as lump sums are concerned, although there are a couple of examples where the Court determined likewise the level of the periodic penalty payment. This approach is probably based on a non specified margin of appreciation that the ECJ regards itself to have in the field of Article 260 proceedings. When it decides to go down that road, the ECJ states that it is “appropriate” to fix the fine at a certain level without however explaining the coefficients or the formula used to arrive at that amount. It can be argued that this approach corresponds better to the idea of full jurisdiction bestowed on the ECJ in the context of Article 260 TFEU.

These two approaches to defining the level of the fine do not apparently sit comfortably together, the risk of inconsistency of the case law being only one of the possible drawbacks. A historical analysis of the case law would show that the two approaches have developed in parallel, none of them being therefore more recent that the other. Quantity wise, none of them can be said to be predominant either: there are five examples in the case law where the ECJ defined the amount of the fine in line with the aforementioned methodology and eight, where the amount was fixed according to its free appreciation. A possible explanation could be eventually sought in the sort of fine to be imposed. Indeed, whereas the ECJ applied the former of these approaches in relation to periodic penalty payments, the latter was used in relation to lump sums – although such examples may also be found in relation to periodic penalty payments. It is however not clear whether the ECJ has sought to draw a distinction between these two approaches according to the sort of fine to be imposed.

This paper takes the view that a more consistent approach to defining the amount of the fines is needed. The coexistence of the aforementioned two approaches is therefore harmful to the coherence and lucidity of the case law in a quasi constitutional area of EU law. The ECJ is therefore facing a dilemma as to which of these two roads to take: setting up a methodology known in advance or defining at will the level of the fine. It is argued that, when determining the amount of a fine, the ECJ should be guided by the principles of predictability and transparency, as well as the objective of ensuring equal treatment of Member States.






[1] LL.M. in European Legal Studies (College of Europe, Bruges), Ph.D. Legal Secretary at the Court of Justice of the European Union and lecturer in EU law. The views expressed in this paper are personal.