In this type o procedure Member States ha e little excuse

The Court o justice o the European Communities issued on No ember 25, 2003 a judgment condemning the Spain to a penalty or ailure to comply with the law community (1). It is the second time only (2), since the creation o this sanction in 1993 (3), that the Court in use. The implementation o this procedure, which requires two judgments o the Court, is complex: the Court must ind a irst stop a breach o the State (transpose o a directi e, maintenance o legislation not in con ormity with Community law...). I the State did not run this irst judgment, the Court may, on re erral rom the Commission, imposing a penalty by a second decision (4) the State. There ore, count at least i e years to a Member State be sentenced to a penalty or breach o its obligations under Community law.

In the case against the Spain, the Court had ound in 1998 that that State had not correctly transposed the directi e on the quality o bathing water (5). The Spain did not change its legislation ollowing this judgment, the Court sentenced him to pay a penalty payment o 624.150 euros per year and 1 o non-compliant areas o swimming by its judgment o 25 No ember 2003.

In this type o procedure, Member States ha e little excuse. The breach as the breach are objecti e and only concepts "absolute impossibility" to implement Community law allows to escape a inding o breach or breach. or example, the Spain claimed that the Commission had not le t him enough time to comply with the irst case, but the Court rejected this argument in recalling that the Treaty does not speci ying the time within which en orcement o a judgment must inter ene, the Community interest requires that this execution is started immediately and succeed in as quickly as possible.

The di iculty o running the irst stop in a short period o time thus does not escape the characterization o breach. Howe er, it is a circumstance that the Court may take into account to determine the amount o the penalty (6). It must be said that the Court has a large margin o discretion in the e aluation o the amount o the sanction. O course, the Commission issued guidelines on the method o calculation o the penalty (7), but the Court noted that it was not bound by this method. The Court recognises, as the Commission, that the imposition o periodic penalty payments is o ten more e icient than the taxation o lump sums and considers, more generally, that the Commission guidelines are a use ul re erence. Thus, in the case o the Greece, the Court imposed the penalty state that the Commission requested, taking into account the duration o the in ringement, its degree o seriousness and the ability to pay o the Greece. Howe er, in the case against the Spain, the Court reduced the amount o the penalty payment by estimating that an annual basis, and not daily as wished the Commission, as well as the ariable nature o the amount o the penalty payment in time, taking into account the progress made by the State, were better adapted to the circumstances.

A ter the Greece and the Spain, the rance could be the next Member State ordered to pay a penalty. Indeed, the Commission announced its intention to bring an action be ore the Court and to request the issuance o a penalty, due to breach by the rance o the judgment, noting its incorrect transposition o the directi e on the liability or de ecti e products (8).

Despite the potentially high amounts o the penalties incurred, the deterrent e ect o this procedure is reduced by its length, due to the need or twice to the Court o justice. I this two-stage procedure still could be justi ied in the de elopment o the Maastricht Treaty, it too hea y to be e ecti e. This is why it would be desirable, as has been proposed by the con ention, to amend the Treaty so that, at least in the case most requently breach such as the directi es, the Member States transpose can be sentenced to penalties in the irst judgment o the Court. In return, it may be possible to relax slightly the notion o absolute impossibility that allows not to characterize a situation o breach o Community law.