European Commission v Portuguese Republic.

JurisdictionEuropean Union
Celex Number62022CJ0449
ECLIECLI:EU:C:2024:230
Date14 March 2024
Docket NumberC-449/22
CourtCourt of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Ninth Chamber)

14 March 2024 (*)

(Failure of a Member State to fulfil obligations – Article 258 TFEU – Directive (EU) 2018/1972 – European Electronic Communications Code – Failure to transpose and notify the transposition measures – Article 260(3) TFEU – Application for the imposition of a lump sum and a periodic penalty payment – Criteria for determining the amount of the penalty – Discontinuance in part)

In Case C‑449/22,

ACTION for failure to fulfil obligations under Article 258 and Article 260(3) TFEU, brought on 7 July 2022,

European Commission, represented by P. Caro de Sousa, U. Małecka, L. Malferrari and E. Manhaeve, acting as Agents,

applicant,

v

Portuguese Republic, represented by P. Barros da Costa and A. Pimenta, acting as Agents,

defendant,

THE COURT (Ninth Chamber),

composed of J.-C. Bonichot, acting as President of the Chamber, S. Rodin and L.S. Rossi (Rapporteur), Judges,

Advocate General: T. Ćapeta,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its action, the European Commission claims that the Court should:

– declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ 2018 L 321, p. 36), no later than 21 December 2020 or, in any event, by failing to communicate those provisions to the Commission, the Portuguese Republic has failed to fulfil its obligations under Article 124(1) of that directive;

– order the Portuguese Republic to pay a lump sum of EUR 5 181.30 per day from 22 December 2020 until it has fulfilled its obligation to notify or the date of delivery of the judgment in the present case for an amount of at least EUR 1 286 000;

– order the Portuguese Republic to make a daily penalty payment of EUR 23 307.30 from the date of delivery of that judgment until the date that Member State complies with that obligation, and

– order the Portuguese Republic to pay the costs.

Legal context

2 Recitals 2 and 3 of Directive 2018/1972 state:

‘(2) The functioning of the five Directives which are part of the existing regulatory framework for electronic communications networks and services … is subject to periodic review by the Commission, with a view, in particular, to determining the need for modification in light of technological and market developments.

(3) In its communication of 6 May 2015 setting out a Digital Single Market Strategy for Europe, the Commission stated that its review of the telecommunications framework would focus on measures that aim to provide incentives for investment in high-speed broadband networks, bring a more consistent internal market approach to radio spectrum policy and management, deliver conditions for a true internal market by tackling regulatory fragmentation, ensure effective protection of consumers, a level playing field for all market players and consistent application of the rules, as well as provide a more effective regulatory institutional framework.’

3 Article 1 of that directive, entitled ‘Subject matter, scope and aims’, provides:

‘1. This Directive establishes a harmonised framework for the regulation of electronic communications networks, electronic communications services, associated facilities and associated services, and certain aspects of terminal equipment. It lays down tasks of national regulatory authorities and, where applicable, of other competent authorities, and establishes a set of procedures to ensure the harmonised application of the regulatory framework throughout the [European] Union.

2. The aims of this Directive are to:

(a) implement an internal market in electronic communications networks and services that results in the deployment and take-up of very high capacity networks, sustainable competition, interoperability of electronic communications services, accessibility, security of networks and services and end-user benefits; and

(b) ensure the provision throughout the Union of good quality, affordable, publicly available services through effective competition and choice, to deal with circumstances in which the needs of end-users, including those with disabilities in order to access the services on an equal basis with others, are not satisfactorily met by the market and to lay down the necessary end-user rights.

…’

4 Article 124 of that directive, entitled ‘Transposition’, provides, in paragraph 1:

‘Member States shall adopt and publish, by 21 December 2020, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately communicate the text of those measures to the Commission.

Member States shall apply those measures from 21 December 2020.

When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the Directives repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.’

Pre-litigation procedure and proceedings before the Court

5 Taking the view that the Portuguese Republic had not adopted the laws, regulations and administrative provisions necessary to comply with Directive 2018/1972 in accordance with Article 124 of that directive, the Commission sent that Member State a letter of formal notice on 3 February 2021 and invited it to submit its observations.

6 On 12 April 2021, the Portuguese authorities replied to that letter, explaining the various stages of the procedure which had been initiated in order to transpose Directive 2018/1972 into Portuguese law. They stated, in particular, that a draft law had been approved by the Council of Ministers for referral to Parliament on 1 April 2021 and that the draft law would be adopted in the second quarter of 2021.

7 In the absence of any further information on the transposition of Directive 2018/1972, the Commission sent a reasoned opinion to the Portuguese Republic on 23 September 2021, requesting that it comply with that opinion before 23 November 2021.

8 On 25 November 2021, the Portuguese authorities replied to that reasoned opinion by providing the Commission with information on the state of transposition of Directive 2018/1972, which had been delayed because of changes in Portugal, but without providing any indication of possible dates for transposition of that directive.

9 Taking the view that the Portuguese Republic had not adopted the provisions necessary to comply with that directive, the Commission decided, on 6 April 2022, to bring the present action before the Court.

10 On 22 April 2022, the Portuguese authorities sent a letter to the Commission informing it that the Council of Ministers had adopted a draft law intended to transpose Directive 2018/1972 and undertook to inform the Commission of the ongoing legislative process.

11 On 31 May 2022, the Portuguese authorities sent to the Commission a further letter informing it that the entire draft law had been submitted to the Parliament for examination.

12 By letters of 29 and 30 June 2022, the Portuguese authorities kept the Commission informed of the various stages of the process and of the legislative timetable concerning the transposition of Directive 2018/1972.

13 On 7 July 2022, the Commission initiated the present proceedings.

14 The Portuguese Republic contends, primarily, that the Court should dismiss that action and order the Commission to pay the costs, in the alternative, that it should not impose any penalty and, in the further alternative, that it should not apply any periodic penalty payment and reduce the amount of the lump sum proposed by the Commission.

15 On 25 July 2022, the Portuguese Republic sent to the Commission information on compliance with the timetable which that Member State had sent to it and on the approval of the draft law referred to in paragraph 10 above, and the parliamentary vote of 21 July 2022. That communication was accompanied, inter alia, by the text of that draft law as approved.

16 On 16 August 2022, the Portuguese Republic informed the Commission of the publication in the Diário da República of Law No 16 of 16 August 2022 (‘Law No 16/2022’), which, according to that Member State, fully transposed Directive 2018/1972 into the Portuguese legal order.

17 On 8 September 2022, the Portuguese Republic sent to the Commission a correlation table between the provisions of Directive 2018/1972 and those of Law No 16/2022 (‘the correlation table’).

18 On 18 and 24 October 2022, that Member State notified to the Commission six additional national measures transposing Directive 2018/1972.

19 On 25 October 2022, that Member State notified to the Commission an updated version of the correlation table.

20 On 19 December 2022, the written procedure in the present case was closed.

21 By document of 22 March 2023, the Commission informed the Court that the transposition of Directive 2018/1972 by the Portuguese Republic could be regarded as having been completed on 25 October 2022 and discontinued its action in part, while clarifying its claim that that Member State should be ordered to pay a lump sum in the amount of EUR 3 481 833.60.

22 On 17 April 2023, the Portuguese Republic submitted its observations on the Commission’s discontinuance in part.

The action

Failure to fulfil obligations under Article 258 TFEU

Arguments of the parties

23 The Commission recalls that, under the third paragraph of Article 288 TFEU, Member States are required to adopt the provisions...

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