Judgment of the Court of Justice Third Chamber, 16 February 2023, Commission v Bulgaria Twofold failure to fulfil obligations – PM10 Pollution, C-174/21

• Date: 16 February 2023
• Year: 2023

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I. PROCEEDINGS OF THE EUROPEAN UNION: ACTIONS FOR FAILURE TO

FULFIL OBLIGATIONS

Judgment of the Court of Justice (Third Chamber), 16 February 2023, Commission v

Bulgaria (Twofold failure to fulfil obligations – PM10 Pollution), C-174/21

Link to the full text of the judgment

Failure of a Member State to fulfil obligations – Directive 2008/50/EC – Ambient air quality – Judgment of

the Court establishing a failure to fulfil obligations – Article 260(2) TFEU – Obligation to take the necessary

measures to comply with such a judgment – Failure to fulfil that obligation alleged by the European

Commission – Lack of clarity of the letter of formal notice as to whether the judgment still had to be

complied with on the reference date – Principle of legal certainty – Inadmissibility

The Ambient Air Quality Directive

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requires Member States to comply with concentration limit values

for certain atmospheric pollutants in ambient air and requires Member States, in the event of

exceedance, to adopt air quality plans so that the exceedance period is kept as short as possible.

In the judgment in Commission v Bulgaria,

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delivered on 5 April 2017, the Court of Justice held that

Bulgaria had failed to fulfil the abovementioned obligations.

Following the delivery of the judgment in Commission v Bulgaria on 5 April 2017, the European

Commission, on 9 November 2018, sent Bulgaria a letter of formal notice, in accordance with the

procedure laid down in Article 260(1) and (2) TFEU.

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In that letter, the Commission found that Bulgaria

had still not taken the necessary measures to put an end to the infringements established by the

Court in its 2017 judgment. It then invited that Member State to submit its observations by the end of

the period prescribed in the letter (‘the reference date’), namely 9 February 2019, and to inform it of

any progress made in the meantime.

Since it was not satisfied with Bulgaria’s replies, the Commission brought an action for failure to fulfil

obligations before the Court under Article 260(2) TFEU (‘an action for twofold failure to fulfil

obligations’) seeking a declaration that that Member State has failed to comply with that judgment

and an order requiring it to pay a lump sum and a daily penalty payment until the judgment of the

Court has been complied with in full.

Findings of the Court

By its judgment, the Court considers that in order for a letter of formal notice to be issued in a pre-

litigation procedure pursuant to Article 260(2) TFEU, if the requirements of legal certainty are not to

be infringed, a failure to fulfil the obligation to take the necessary measures to comply with the

judgment of the Court must be capable of being legitimately alleged by the Commission. Given the

fact that the action for twofold failure to fulfil obligations is aimed at inducing a defaulting Member

State to comply with a judgment establishing a failure to fulfil obligations, the Court states that the

Commission is required not only to ascertain, throughout the pre-litigation procedure and before

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Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ

2008 L 152, p. 1).

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Judgment of 5 April 2017, Commission v Bulgaria (C-488/15, EU:C:2017:267).

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Under Article 260(1) and (2) TFEU, a Member State in respect of which the Court has found that it has failed to fulfil an obligation under the

Treaties is required to take the necessary measures to comply with the judgment of the Court, and the Commission may bring the matter

before the Court if it considers, after giving the Member State concerned the opportunity to submit its observations, that such measures

have not been taken.