PRESS RELEASE No 34/04
29 April 2004
Opinion of the Advocate General in Case C-304/02
Commission of the European Communities v French Republic
ADVOCATE GENERAL GEELHOED PROPOSES THAT, FOR THE FIRST TIME, THE COURT IMPOSE A
LUMP SUM FINE ON A MEMBER STATE FOR A PERSISTENT AND STRUCTURAL INFRINGEMENT
OF COMMUNITY LAW
The Advocate General suggests a lump sum fine of EUR 115.5m be imposed
on France for failing to comply with fishery enforcement obligations over a number
of years and that France be required to pay nearly EUR 58m for
every further six months that it fails to comply.
For the following eleven years the Commission entered into a protracted dialogue with
France as to the efforts being made to enforce the Community rules. However,
following numerous inspections carried out by Community inspectors in various French ports during
this time, the Commission remained unconvinced that France had fully complied with its
obligations. The Commission therefore has asked the Court to declare that France has
failed to comply with the Court judgment of 1991 and to order France
to pay EUR 316,500 per day of delay in implementing that judgment from
the date of delivery of the present judgment.
The Advocate General distinguishes between two points in time for determining whether France
has complied with the 1991 judgment. Firstly, between 1991 and 2000, when the
time-limit for compliance with the Commissions reasoned opinion expired, and secondly, the current
situation so as to determine whether France is liable to pay a daily
penalty until it complies.
In relation to the first period of time, between 1991 and 2000, the
Advocate General notes that France has taken various measures aimed at improving the
monitoring of compliance with the Community rules. However, such measures can only be
regarded as effective if they result in a practical situation which corresponds to
that envisaged by those rules). The reports produced by the Community inspectors contain
numerous and repeated indications of Frances failure to monitor compliance in an efficient
and effective manner and show that the enforcement efforts made by France to
prosecute offenders were not effective. These reports, in his opinion, testify to a
structural situation which has lasted for many years and still existed at the
end of the time limit laid down in the reasoned opinion. As such,
the Advocate General proposes that the Court rule that France had not complied
with the 1991 judgment by this time.
In relation to the current situation, the Advocate General notes that in response
to questions put by the Court, the Commission has stated that it is
unable to determine as yet whether the new controls have had a real
effect. Consequently, in his view, it cannot be conclusively determined whether France is
currently complying with the Community rules.
In assessing the consequences of the infringement by France, the Advocate General also
makes a distinction between the two periods of time.
In his opinion, in relation to the past conduct of France, between 1991
and 2000, the Court should apply the rules allowing it to fine Member
States in such a way so as to not only bring about compliance
as soon as possible, but also to have a preventative effect. A daily
fine which only commences after the second judgment of the Court would not
induce a Member State to end an infringement as soon as it is
established by the Court. On the contrary, a Member State could continue to
infringe Community law right up to the point where the fine is imposed,
thereby undermining Community law. Therefore, given the persistent, serious, and structural nature of
the infringement, the Advocate General proposes that, for the first time, the Court
impose a lump sum fine of EUR 115,522,500. To arrive at this figure
the Advocate General has taken the daily fine proposed by the Commission and
multiplied it by 365 to give the amount payable over a year.
As regards possible continued infringement, the Advocate General recognises that the Commission needs
further information in order to determine this fact. As monitoring and enforcement practices
cannot be changed instantaneously, he considers a daily penalty to be inappropriate. He
therefore proposes that the penalty be imposed every six months, this period being
sufficient time to establish whether an infringement persists. The Advocate General suggests that
the daily fine proposed by the Commission be multiplied by 182.5, to give
a six monthly fine of EUR 57,761,250.
Reminder: The opinion of the Advocate General does not bind the Court of
Justice. The task of the Advocate General is to propose to the Court,
in complete independence, a legal solution to the case in question. The Court
will now begin its deliberations in this case and the judgment will be
delivered at a later date.
Available languages: All. The full text of the judgment can be found on the internet (www.curia.eu.int ). In principle it will be available from midday CET on the day of delivery. For additional information please contact Christopher Fretwell. Tel: (00352) 4303 3355 Fax: (00352) 4303 2731 |
Case C-64/88 Commission v French Republic (1991] ECR I-2727.