27 June 2016 (*1)

‛Failure to comply with a judgment of the Court of Justice finding that a State has failed to fulfil its obligations — Penalty payment — Decision quantifying the penalty payment — Repeal of national legislation incompatible with EU law — Date on which the infringement was brought to an end — Annulment of an earlier decision quantifying a penalty payment imposed in compliance with the same judgment of the Court of Justice — Res judicata — Action manifestly lacking any foundation in law’

In Case T‑810/14,

Portuguese Republic, represented by L. Inez Fernandes, J. de Oliveira and S. Nunes de Almeida, acting as Agents,

applicant,

European Commission, represented by G. Braga da Cruz and M. Heller, acting as Agents,

defendant,

APPLICATION based on Article 263 TFEU for the annulment of Commission Decision MARKT/A2/3523710 of 3 October 2014 quantifying the penalty payment to be made by the Portuguese Republic in respect of the period from 10 to 29 January 2008 in compliance with the judgment of 10 January 2008, Commission v Portugal (C‑70/06, EU:C:2008:3),

THE GENERAL COURT (Sixth Chamber),

composed of S. Frimodt Nielsen (Rapporteur), President, F. Dehousse and A.M. Collins, Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

Infringement proceedings against the Portuguese Republic

1.1 In 2003 the Commission of the European Communities brought infringement proceedings against the Portuguese Republic, taking the view inter alia that the conditions giving rise to liability of contracting authorities as laid down at the time by the law of that Member State were incompatible with Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33).

2.2 In the judgment of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:632), the Court of Justice upheld the Commission’s arguments, ruling in paragraph 1 of the operative part of that judgment that ‘by failing to repeal Decree-Law No 48051 of 21 November 1967 making the award of damages to persons injured by a breach of Community law relating to public contracts, or the national laws implementing it, conditional on proof of fault or fraud, the Portuguese Republic [had] failed to fulfil its obligations under [Article] 1(1) and [Article] 2(1)(c) of Council Directive 89/665 …’.

3.3 As it took the view, however, that the Portuguese Republic had not brought the infringement established to an end, the Commission initiated a second set of infringement proceedings, requesting the Court of Justice to impose a penalty payment. The hearing took place before the Court of Justice on 5 July 2007.

4.4 On 31 December 2007, Lei No 67/2007, que aprova o Regime da Responsabilidade Civil Extracontratual do Estado a Demais Entitades Públicas (Law No 67/2007 laying down a system for the non-contractual civil liability of the State and other public bodies) was published (Diário da República, Series 1, No 251, 31 December 2007, ‘Law No 67/2007’). Article 5 of that law repealed inter alia Decree-Law No 48051 of 21 November 1967 (‘Decree-Law No 48051’), as envisaged in the operative part of the judgment of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:632). Under Article 6 thereof, that law was to enter into force 30 days after its publication, on 30 January 2008.

5.5 In the judgment of 10 January 2008, Commission v Portugal (C‑70/06, EU:C:2008:3), the Court of Justice held that, by failing to repeal Decree-Law No 48051, the Portuguese Republic had not brought to an end the infringement established in the judgment of 14 October 2004, Commission v Portugal, (C‑275/03, not published, EU:C:2004:632). It therefore imposed a penalty payment. Paragraphs 1 and 2 of the operative part of the judgment of 10 January 2008, Commission v Portugal, (C‑70/06, EU:C:2008:3) read as follows:

‘1. [By] failing to repeal Decree-Law No 48051 … making the award of damages to persons injured by a breach of Community law relating to public contracts, or the national laws implementing it, conditional on proof of fault or fraud, the Portuguese Republic has failed to adopt the measures necessary to comply with the judgment of 14 October 2004 in Case C‑275/03 Commission v Portugal and has thereby failed to fulfil its obligations under Article 228(1) EC;

First quantification decision and proceedings before the General Court and the Court of Justice

6.6 Since it considered that Law No 67/2007, in particular Article 7 of the system for the non-contractual civil liability of the State and other public bodies laid down in the annex to that law, did not properly transpose Directive 89/665, the Commission initiated a dialogue with the Portuguese Republic which continued over a number of meetings. The Portuguese Republic took the view that, by adopting Law No 67/2007, in so far as that law repealed Decree Law No 48051, it had complied fully with the judgment of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:632).

7.7 On 15 July 2008, the Director-General of the Commission’s Directorate-General (DG) for Internal Market and Services submitted a request for payment to the Portuguese Republic for the penalty payment incurred in respect of the period from 10 January to 31 May 2008.

8.8 Whilst contesting the Commission’s position, but with a view to ending this disagreement, the Portuguese Republic adopted Lei No 31/2008, Procede à primeira alteração à Lei No 67/2007, de 31 de Dezembro, que aprova o Regime da Responsabilidade Civil Extracontratual do Estado a Demais Entitades Públicas (Law No 31/2008 amending Law No 67/2007) of 17 July 2008 (Diário da República, Series 1, No 137, 17 July 2008), which amends, with retroactive effect to 30 January 2008, Article 7 of the system for the non-contractual civil liability of the State and other public bodies as set out in the annex to Law No 67/2007. The Commission thus took the view that the Portuguese Republic had brought to an end the infringement established in the judgment of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:632).

9.9 On 25 November 2008, the Commission adopted Decision C(2008) 7419 final (‘the first quantification decision’), fixing at a total amount of EUR 3665088 the penalty payment incurred by the Portuguese Republic in compliance with the judgment of 10 January 2008, Commission v Portugal (C‑70/06, EU:C:2008:3), for the period from 10 January to 17 July 2008.

10.10 The Portuguese Republic brought an action for annulment against the first quantification decision, which was granted by the General Court in the judgment of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127). In that judgment the General Court ruled that the Commission was competent in principle to quantify penalty payments determined by the Court of Justice, but that that competence was limited strictly to drawing conclusions from the findings made by the Court of Justice. As the infringement identified by the Court of Justice consisted in the failure to repeal Decree-Law No 48051, the General Court held that the Commission had acted ultra vires by verifying itself whether the new Portuguese legislation properly transposed Directive 89/665. The General Court held that the Court of Justice alone had jurisdiction to make such an appraisal.

11.11 In its action the Portuguese Republic claimed, principally, that the Court should annul the first quantification decision and, in the alternative, annul that decision partially in so far as its effects extended beyond 29 January 2008. The General Court annulled the first quantification decision in its entirety. It did not rule on the Portuguese Republic’s argument, made in the alternative, that account should be taken of the date on which the infringement established had ceased, that is, 30 January 2008, the date on which Law No 67/2007 and the retroactive amendment made by Law No 31/2008 had entered into force.

12.12 The appeal brought by the Commission against the judgment of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127), was dismissed. In the judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3), the Court of Justice ruled, inter alia, as follows:

37‘37 Under Article 260(1) TFEU, if the Court of Justice finds that a Member State has failed to fulfil an obligation under the Treaties, that State is required to take the necessary measures to comply with the judgment of the Court of Justice.

38Under Article 260(2) TFEU, if the Commission considers that the Member State concerned has not taken the necessary measures to comply with such a judgment, it may bring a case before the Court of Justice requesting it to order that Member State to pay a lump sum and/or a penalty payment.

39Unlike the procedure established under Article 258 TFEU, which is designed to obtain a declaration that the conduct of a Member State is in breach of EU law and to terminate that conduct (see Joined Cases 15/76 and 16/76 France v Commission [1979] ECR 321, paragraph 27, and Case C‑456/05 Commission v Germany [2007] ECR I‑10517, paragraph 25), the procedure provided for under Article 260 TFEU has a much narrower ambit, since it is designed only to induce a defaulting Member State to comply with a judgment establishing a breach of obligations (Case C‑304/02 Commission v France [2005] ECR I‑6263, paragraph 80, and Joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P Sweden v API and Commission [2010] ECR I‑8533, paragraph 119).

40Consequently, that latter procedure must be regarded as a special judicial procedure for the enforcement of judgments and, in other words, as a method of enforcement (Case C‑304/02 Commission v France, paragraph 92). Therefore, only a failure of a Member State to fulfil its obligations under the FEU Treaty which the Court has held, on the basis of Article 258 TFEU, to be well founded may be dealt with under that procedure (Case C‑457/07 Commission v Portugal [2009] ECR I‑8091, paragraph 47).

41A fortiori, where the Court of Justice orders the Member State concerned to pay a penalty payment, the Commission’s review of the measures adopted by the Member State for the purpose of complying with such a judgment and the recovery of sums owed pursuant to the penalties imposed must be carried out having regard to the scope of the failure to fulfil obligations, as defined by the Court of Justice in its judgments delivered pursuant to Articles 258 TFEU and 260 TFEU.

42In the present case, it is clear both from the operative part of the [judgment of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:632)] and from that of the [judgment of 10 January 2008, Commission v Portugal (C‑70/06, EU:C:2008:3)] that the failure to fulfil obligations established by the Court of Justice relates to the failure to repeal Decree-Law No 48051, which made the award of financial compensation to persons injured by a breach of [EU] law in the area of public contracts conditional on proof of fault or fraud.

43For the purpose of complying with the [judgment of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:632)], the Portuguese Republic adopted Law No 67/2007. That law, which came into force a few days after the delivery of the [judgment of 10 January 2008, Commission v Portugal (C‑70/06, EU:C:2008:3)]

EU:C:2008:3

After examining that law, however, the Commission formed the view that it did not conform to [EU] law and therefore did not ensure proper compliance with the [judgment of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:632)].

This gave rise to a difference between the Commission and the Portuguese Republic as to the legal scope and the interpretation of Law No 67/2007, resulting in the adoption of the contested decision, in which the Commission, relying specifically on its own interpretation of the effects of that law, calculated the amount of the penalty payment imposed by the Court of Justice.

In so doing, the Commission took a view on the issue of the conformity of Law No 67/2007 with Directive 89/665, even though, as the General Court correctly held in paragraphs 83 to 85 of the [judgment of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127)], that law introduced a system of liability, which the Court of Justice could not have examined beforehand, and which was distinct from that established by Decree-Law No 48051.

It is true that, as the General Court essentially held in paragraph 81 of the [judgment of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127)], when enforcing a judgment of the Court of Justice imposing a penalty payment on a Member State, the Commission must be able to assess whether the measures adopted by that Member State enable it to comply with the judgment establishing an infringement.

However, as the General Court correctly held in paragraph 82 of the [judgment of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127)], that power of appraisal cannot be exercised in a manner which is prejudicial to the exclusive jurisdiction of the Court of Justice to rule on the compliance of national legislation with [EU] law.

…

By Decision MARKT/A2/3523710 of 3 October 2014 (‘the contested decision’), notified on 6 October 2014, the Director-General of the Commission’s DG Internal Market and Services requested the Portuguese Republic to pay the sum of EUR 387840, the amount of the quantified penalty payment, for the period from 10 to 29 January 2008 in compliance with the judgment of 10 January 2008, Commission v Portugal (C‑70/06, EU:C:2008:3).

The contested decision included the following statement of reasons:

‘As the grounds on which the Court based its 2014 judgment related solely to the part of the Commission decision by which the Commission demanded that Portugal make the penalty payment corresponding to the period from 30 January to 17 July 2008, the Portuguese Republic is still required to comply with the 2008 judgment in respect of the period from 10 January 2008 (the date on which of the judgment was delivered) to 29 January 2008 inclusive (the repealing law entered into force on 30 January 2008).’

By application lodged at the Court Registry on 12 December 2014, the Portuguese Republic brought the present action.

The Portuguese Republic claims, in essence, that the Court should:

—annul the contested decision;

—order the Commission to pay the costs.

The Commission contends that the Court should:

—dismiss the action;

—order the Portuguese Republic to pay the costs.

The Court considers it appropriate in this case to apply the provisions of Article 126 of its Rules of Procedure, under which, where it is clear that it has no jurisdiction to hear and determine an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, it may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

In the reply, the Portuguese Republic claims that the General Court does not have jurisdiction to rule on a question relating to compliance with the Member States’ obligations under the Treaties, as such jurisdiction is reserved for the Court of Justice. Consequently, since the question whether the Portuguese Republic brought to an end the infringement established in the judgment of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:632), by publishing Law No 67/2007 or whether only the entry into force of that law could bring to an end that infringement has not been decided by the Court of Justice, it should be assessed by the Court of Justice and not by the General Court.

In response to a measure of organisation of procedure adopted by the General Court, the Portuguese Republic clarified its position, stating that, by this argument, it did not intend to raise against its own action a plea alleging the lack of competence of the General Court to hear and determine the action, but it claimed that, as the questions at issue fall within the exclusive jurisdiction of the Court of Justice, the contested decision had to be annulled because its author lacked competence.

Formal note should be taken that the Portuguese Republic has made these clarifications, while the question whether the Commission was competent to adopt the contested decision must be assessed in the context of the examination of the merits of the action.

In any event, it is sufficient to note that in paragraph 53 of the judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3), the Court of Justice ruled that an action for annulment could be brought before the General Court against decisions in which the Commission quantified penalty payments imposed by the Court of Justice, the judgment of which could be the subject of an appeal to the Court of Justice.

The arguments put forward by the Portuguese Republic in support of its action can be grouped into six pleas in law. The first concerns the Commission’s lack of competence to adopt the contested decision, as the EU Courts alone have the power to quantify penalty payments imposed under Article 260(2) TFEU. The second plea in law alleges that the contested decision does not properly comply with the judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3). The third plea in law concerns breach of res judicata and the fourth breach of the principles of legal certainty, ‘stability of legal relations’ and protection of legitimate expectations. By the fifth plea in law, the Portuguese Republic alleges infringement of the principle ne bis in idem. The sixth plea in law, lastly, alleges infringement of the division of powers between the Union and the Member States in that the contested decision restricts the right of Member States to defer the entry into force of rules adopted by them.

It is necessary to assess, as a preliminary point, the Commission’s arguments regarding the validity of the penalty payment quantified in the contested decision. The merits of the present action are largely dependent on the merits of these arguments, to which the Portuguese Republic responded in the reply.

The Commission asserts that, where a Member State is found to have failed to repeal legislation which is incompatible with EU law, the date on which that Member State is to be considered to have brought to an end the infringement alleged against it is the date of entry into force of the rule by which the incompatible legislation is repealed, that is say, the date on which that repeal takes effect, and not the date of publication of that rule, where that second date is earlier than the first. Failing this, it would be easy for a Member State which has been found to have failed to fulfil its obligations to circumvent the obligation to bring to an end the infringement by publishing the rules required by the Court’s judgments while deferring their entry into force.

Thus, both in the procedures laid down in Article 260(2) TFEU and in the procedures laid down in Article 258 TFEU, it is the date of entry into force of the national legislation and not the date of its adoption that is used by the Court of Justice to assess whether a Member State has brought to an end the infringement alleged against it.

According to the Commission, it is clear from the procedure leading to the adoption of the first quantification decision that, as is noted, moreover, in the judgments of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127), and of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3), the Portuguese Republic considered at the time that it had fully complied with the judgment of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:632), by adopting Law No 67/2007 and that it claimed then that the date to be used in that regard was the entry into force of that law on 30 January 2008.

The Portuguese Republic asserts that it brought to an end the infringement established in the judgment of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:632), by the adoption of Law No 67/2007. It was only because that adoption was not notified to the Court of Justice until a few days before the delivery of the judgment of 10 January 2008, Commission v Portugal (C‑70/06, EU:C:2008:3), that the Court, which was not therefore able to take it into account, decided to impose a penalty payment. Since, in its view, it brought to an end the infringement established in the judgment of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:632), before the delivery of the judgment of 10 January 2008, Commission v Portugal (C‑70/06, EU:C:2008:3), no penalty payment could be imposed on it. The date to be used in assessing the end of the infringement established in the judgment of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:632), is the date of publication of Law No 67/2007 on 31 December 2007.

In addition, the Portuguese Republic maintains that it has always disputed that a penalty payment can be imposed on it and that it was only in the alternative that during the procedure challenging the first quantification decision it accepted that if the date when the infringement ended to be used was the date of entry into force of Law No 67/2007, then in any event no penalty payment could be imposed on it extending beyond 29 January 2008.

It should be noted from the outset that the contested decision is based on the premiss that, where the end of an infringement attributable to a Member State depends on the repeal of national legislation which is incompatible with EU law, the date to be used in assessing the date on which the infringement ended is the date on which the repeal of the incompatible legislation enters into force where, as in this case, entry into force is after the publication of the repealing act (see paragraph 14 above). Thus, in the present case, the parties disagree on whether, as the Commission held in the contested decision, the infringement established in the judgment of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:632), should be considered to have ended when Law No 67/2007 entered into force on 30 January 2008 or whether, as the Portuguese Republic claims, the infringement ended with the publication of Law No 67/2007 on 31 December 2007. In the latter case, in so far as the Portuguese Republic brought to an end the infringement before the delivery of the judgment of 10 January 2008, Commission v Portugal (C‑70/06, EU:C:2008:3), it would be justified in claiming that no penalty payment could be imposed on it.

Such a question can nevertheless be resolved in the light of case-law. First, hearing an action for failure to fulfil obligations based on Article 258 TFEU, the Court of Justice has ruled that the possible incompatibility of national legislation with EU law could not be established because the national rule at issue had not yet entered into force on the date laid down by the Commission in the reasoned opinion (judgment of 18 July 2013, Commission v Poland (C‑313/11, EU:C:2013:481, paragraphs 43 to 48). In that judgment, the Court thus attached crucial importance to the state of the law in force on the date which must be used by the Court for the purpose of determining whether a Member State has failed to fulfil obligations.

Second, in a reference for a preliminary ruling, the Court of Justice has held, in a case where the entry into force of the law transposing a directive was deferred pending the adoption of an internal implementing measure, that the incompatibility of the national legislation with EU law could be established if, at the end of the transposition period prescribed by the directive, the implementing measure in question had not been adopted. The Court thus attached paramount importance to the effectiveness of the transposing law, that is to say, its entry into force, considering its mere adoption by the competent authorities of the Member State insufficient in the light of the direct effect of the directive (judgment of 18 December 2014, SETAR, C‑551/13, EU:C:2014:2467, paragraph 40).

Lastly, in infringement proceedings seeking an order for a penalty payment and a lump sum under Article 260(2) TFEU, the Court of Justice has ruled that the entry into force of a law after the date prescribed by the Commission in a reasoned opinion but before the delivery of the Court’s judgment precluded the imposition of a penalty payment because the infringement in question had ended before the Court’s judgment (judgment of 9 December 2008, Commission v France, C‑121/07, EU:C:2008:695, paragraphs 20 and 26). Nevertheless, since consideration had to be given to the date of entry into force of the law in question and that date was after the date prescribed in the reasoned opinion, the Court ordered the Member State to pay a lump sum.

Thus, according to case-law, where the end of an infringement depends on the adoption of a national measure, such as a repealing measure, it is the date of entry into force of that measure that must be taken into consideration in determining the date when infringement ended. In the present case, the infringement established in the judgment of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:632), which consisted in the existence of legislation that was incompatible with EU law (Decree-Law No 48051), thus ended with the entry into force of Law No 67/2007, which repealed that incompatible legislation, namely on 30 January 2008. The Commission was therefore justified in taking the view, as it did in the contested decision, that in accordance with the judgment of 10 January 2008, Commission v Portugal (C‑70/06, EU:C:2008:3), a penalty payment had to be imposed on the Portuguese Republic from the date when the judgment was delivered, namely 10 January 2008, in respect of the period during which Decree-Law No 48051 remained in force, that is to say, until 29 January 2008 inclusive.

It must now be examined whether the arguments put forward by the Portuguese Republic are nevertheless capable of establishing the unlawfulness of the contested decision.

The first plea in law, alleging the Commission’s lack of competence to adopt the contested decision

The Portuguese Republic claims that the Commission lacked the competence to adopt the contested decision, as competence to adopt such decisions is reserved for the EU Courts. Thus, because it was adopted by an authority lacking competence, the contested decision affects the balance of the legal remedies under the Treaties and the rights of defence available to the Member States in infringement proceedings, as, in its submission, the Court of Justice ruled in paragraph 55 of the judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3).

The Commission asserts that it was competent to adopt the contested decision.

It should be recalled that the question of the Commission’s competence to adopt decisions quantifying penalty payments imposed by the Court of Justice was expressly decided by the General Court in the judgment of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127). In paragraph 41 of the judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3), the Court of Justice confirmed that approach.

In the judgment of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127), the General Court relied on the following preliminary considerations:

‘57 It should be noted that, under the terms of Article 226 EC, where the Commission considers that a Member State has failed to fulfil obligations under the EC Treaty, it is to deliver a reasoned opinion after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice.

58 It is settled case-law that the Commission is not empowered to determine conclusively, by opinions formulated pursuant to Article 226 EC or by other statements of its attitude under that procedure, the rights and duties of a Member State, or to give it guarantees concerning the compatibility of a given line of conduct with the Treaty and that, according to Articles 226 EC to 228 EC, the rights and duties of Member States may be determined and their conduct appraised only by a judgment of the Court of Justice (Joined Cases 142/80 and 143/80 Essevi and Salengo [1981] ECR 1413, paragraph 16, and Case C‑393/98 Gomes Valente [2001] ECR I‑1327, paragraph 18).

59 Furthermore, under Article 28(2) EC, the Court of Justice may, when an action is brought before it by the Commission after the latter has issued a reasoned opinion that the Member State concerned has not complied with, impose a lump sum or penalty payment on it if it finds that the Member State has not complied with its judgment.

60 The procedure laid down in Article 228(2) EC must be regarded as a special judicial procedure for the enforcement of judgments, in other words as a method of enforcement (Case C‑304/02 Commission v France [2005] ECR I-6263, paragraph 92).

61 It should be noted, however, that the EC Treaty does not lay down the detailed rules for the enforcement of the judgment that the Court delivers at the conclusion of that new procedure, in particular where a penalty payment is decided on.

62 Nevertheless, where a judgment of the Court of Justice, delivered pursuant to Article 228(2) EC, orders a Member State to pay a penalty payment to the Commission, into the account “European Community own resources”, and since, under Article 274 EC, the Commission implements the budget, the latter is responsible for recovering the amounts that would be due to the budget of the European Union pursuant to the judgment, in accordance with the provisions of the regulations made under Article 279 EC.

63 The EC Treaty does not make any specific provision, however, regarding the settlement of disputes that would arise between a Member State and the Commission on that occasion.

It follows that the remedies established by the EC Treaty apply and that the decision, by which the Commission determines the amount due from the Member State in terms of the penalty payment which it has been ordered to make, can be the subject of an action for annulment pursuant to Article 230 EC.

Therefore, the General Court has jurisdiction to hear and determine such an action, in accordance with the provisions of the first subparagraph of Article 225(1) EC.

However, in exercising such jurisdiction, the General Court cannot impinge on the exclusive jurisdiction reserved to the Court of Justice under Articles 226 EC and 228 EC.

The General Court may not rule, therefore, in the context of an action for annulment based on Article 230 EC and brought against a decision of the Commission relating to the enforcement of a Court of Justice judgment delivered on the basis of Article 228(2) EC, on a question relating to the infringement by the Member State of its obligations under the EC Treaty that has not been previously decided by the Court of Justice.’

It follows from this reasoning that, as the authorising and accounting entity for the EU budget, the Commission is competent in principle to recover sums owed by Member States where the Court of Justice imposes a penalty payment on them under Article 260(2) TFEU. This competence means that the Commission is able to assess whether the conditions laid down by the Court in the judgment imposing a penalty payment are met in determining the date on which the infringement in question ended. However, that competence does not permit the Commission to assess the conformity with EU law of a rule or conduct of a Member State on which the Court has not previously ruled.

Thus, in the case of the first quantification decision, according to the General Court, whose approach was confirmed by the Court of Justice, in so far as the infringement established in the judgments of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:63), and of 10 January 2008, Commission v Portugal (C‑70/06, EU:C:2008:3), consisted in the failure to repeal Decree-Law No 48051, the Commission was not able to go beyond verifying that the Decree-Law had actually been repealed. It could not therefore, as it did, hold that the repeal pursuant to Law No 67/2007 was insufficient and conclude that only new legislation adopted in July 2008 put an end to the incompatibility of the Portuguese legislation with Directive 89/665, as, in doing so, the Commission had assessed the conformity of the new system of liability in the annex to Law No 67/2007 and the conformity of the system established by the Law of 17 July 2008 with Directive 89/665. However, the Court of Justice had not had the opportunity to rule on the matter.

On the other hand, in the contested decision the Commission quantified the penalty payment without conducting a separate examination of the conformity of the Portuguese legislation with Directive 89/665. The Commission simply stated the date of entry into force of the national rule repealing Decree Law No 48051, a repeal which the Court of Justice had considered sufficient to bring to an end the infringement established in the judgment of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:632). It therefore remained within the limits of the competence which it generally holds in relation to implementation of the EU budget.

The first plea in law must therefore be rejected as manifestly lacking any foundation in law.

The second plea in law, alleging that the judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3), was not properly complied with

The Portuguese Republic claims that the contested decision is based on an ‘artificial fragmentation’ of the effects of the judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3). It asserts that the judgment does not contain anything that allows the Commission to make distinctions between a number of periods. The General Court, in the judgment of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127), and the Court of Justice, in the judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3), upheld a single plea of illegality. Neither the operative part nor the grounds of the judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3), permit such distinctions. Consequently, the effects of the judgment cannot be applied differently in time to the period from 10 to 29 January 2008, on the one hand, and the period from 30 January to 17 July 2008, on the other.

Furthermore, the first quantification decision was annulled in its entirety by the judgment of 29 March 2011 in Portugal v Commission (T‑33/09, EU:T:2011:127), which was fully confirmed on appeal by the judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3). In the latter judgment, the Court of Justice made a final determination on the rights of the parties. The contested decision calls into question legal certainty and the authority of the EU judicature, artificially creating a temporal distinction between two periods and claiming to return to a procedural and substantive situation on which a final determination was made in those two judgments.

In addition, the quantification of a penalty payment in respect of the period from 10 to 29 January 2008 has no regard for the objective pursued by Article 260(2) TFEU, which is to encourage Member States to bring to an end previously established infringements and not to punish them. In this case, the Portuguese Republic brought to an end the infringement on 31 December 2007 by publishing Law No 67/2007, with the result that it should not incur any penalty payment.

The Commission disputes those arguments.

The Portuguese Republic’s argument stems from the theory that, since the Court of Justice relied on a single ground in confirming, in the judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3), the annulment of the first quantification decision by the General Court in the judgment of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127), namely the Commission’s lack of competence to set at 18 July 2008 the end of the infringement established in the judgment of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:632), the entire penalty payment in respect of the period from 10 January to 18 July 2008 therefore has no legal basis. It is thus unlawful to distinguish, within the period for which the penalty payment was annulled, a period — from 10 to 29 January 2008 — in respect of which a new penalty payment could be imposed again.

Such an interpretation of the judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3), could be accepted only if the Court of Justice had ruled in that judgment that no penalty payment could be imposed on the Portuguese Republic. However, that is certainly not the case. In the judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3), the Court of Justice confirmed the view put forward by the General Court in the judgment of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127), that the Commission was not able to base its decision calculating the penalty payment on an interpretation, not previously brought before the Court of Justice in infringement proceedings, of the conformity of the Portuguese legislation with Directive 89/665. The Court of Justice, confirming the view taken by the General Court, also held that the infringement established in the judgment of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:632), consisted in the failure to repeal Decree-Law No 48051. However, neither the judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3), nor the judgment of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127), prevents the Commission from being able to take the view that the effective date of the end of the infringement established in the judgment of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:632), is the date of entry into force of that repeal, namely 30 January 2008. Consequently, for the reasons mentioned in paragraphs 30 to 34 above, the Commission was entitled to calculate the penalty payment due in respect of the period from 10 to 29 January 2008.

By doing so, contrary to the apparent claims made by the Portuguese Republic in connection with the second plea in law, the Commission did not ‘resuscitate’ the penalty payment which was rendered devoid of a legal basis by the judgments of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127), and of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3). The penalty payment calculated in the contested decision is based on a different ground — the non-entry into force of Law No 67/2007 — from the ground which formed the basis for the penalty payment imposed in respect of the same period in the first quantification decision — the non-adoption of legislation compatible with Directive 89/665.

Consequently, the second plea in law must be rejected as manifestly lacking any foundation in law.

The third plea in law, alleging breach of res judicata

The Portuguese Republic asserts that the contested decision breached res judicata. This principle forms the basis for the prohibition on adopting another act with the same content as an annulled act. The contested decision has in part the same content, even though it relates to a shorter period than the first quantification decision.

According to the Portuguese Republic, the judgments of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127), and of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3), ruled on compliance with the judgment of 14 October 2004, Commission v Portugal (C‑275/03, not published, EU:C:2004:632). The subject matter of the rulings in the judgments of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127), and of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3), on the one hand, and the matter to be decided in this case, on the other, is therefore the same. According to the Portuguese Republic, the subject matter of the cases resulting in the judgments of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127), and of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3), was to determine whether or not the Portuguese Republic was required to make the penalty payment imposed in the judgment of 10 January 2008, Commission v Portugal (C‑70/06, EU:C:2008:3).

In addition, when they respectively adopted the judgments of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127), and of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3), the General Court and the Court of Justice were aware that Law No 67/2007 had entered into force on 30 January 2008, after the judgment of 10 January 2008, Commission v Portugal (C‑70/06, EU:C:2008:3), had been delivered. Therefore, if the Commission’s view were valid, they should have held that the first quantification decision had to be annulled partially in so far as it related to the period from 30 January 2008 and confirmed the first quantification decision in so far as it related to the period between 10 and 29 January 2008. However, in its judgment, confirmed by the Court of Justice, the General Court annulled the first quantification decision in its entirety. The judgments of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127), and of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3), thus necessarily ruled on the validity of the penalty payment in respect of the period from 10 to 29 January 2008 and the contested decision breached the force of res judicata attached to those judgments.

The Commission disputes those arguments.

The examination of the second plea in law (see paragraphs 49 and 50 above) shows that the judgments of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127), and of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3)

EU:C:2014:3

did not censure the Commission, in principle, for imposing a penalty payment in the first quantification decision. The decision was annulled only because it was based on an incorrect ground. There is therefore nothing to prevent the Commission adopting a new decision based on grounds other than those which resulted in the annulment of the first quantification decision. The subject matter and legal basis of the present dispute must therefore be considered to be different from those in the disputes decided by the judgments of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127), and of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3).

It should be added in this regard that the Portuguese Republic cannot rely on the fact that the General Court did not partially annul the first quantification decision, as, because there was a ground such as to entail the complete annulment of that decision in accordance with the principal claims made by the Portuguese Republic in that case, it was not possible for the General Court to annul the first quantification decision only partially without substituting a lawful ground for the incorrect ground on which the Commission had based its first decision. In the absence of legislation making provision to that effect, the General Court does not have the power to amend decisions which are brought before it in an action for annulment based on Article 263 TFEU.

Accordingly, the third plea in law must be rejected as manifestly lacking any foundation in law.

The fourth plea in law, alleging breach of the principles of legal certainty, ‘stability of legal relations’ and protection of legitimate expectations

The Portuguese Republic claims that the contested decision breaches the principles of legal certainty, ‘stability of legal relations’ and protection of legitimate expectations. The principles of legal certainty and protection of legitimate expectations prevent the Commission extending the procedure further. Although it concedes that there is no procedural limitation period in EU law, it considers that in this case it was entitled to assume, in view of the lengthy time which passed between the first steps taken by the Commission before the institution of infringement proceedings and the annulment, which became final, of the first quantification decision, that the Commission’s claims that it should make a penalty payment had been definitively extinguished by the judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3). The General Court, then the Court of Justice, prohibited the Commission from imposing a penalty payment on it.

Furthermore, by repaying in full the penalty payment, including interest, imposed on it by the first quantification decision, the Commission created a legitimate expectation in so far as no penalty payment was due in respect of the period from 10 to 29 January 2008. The Portuguese Republic notes that, if the Commission had considered a penalty payment to be due in respect of that period, it should have offset that claim with the repayment following the annulment of the first quantification decision rather than making a full repayment. It also claims that, by repaying the penalty payment in full, the Commission acted lawfully in accordance with the judgments of 29 March 2011, Portugal v Commission (T‑33/09, EU:T:2011:127), and of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3). If the contention relied on by the Commission in the contested decision were true, the General Court should have annulled the first quantification decision partially only in so far as it related to the period after 29 January 2008.

The Commission disputes those arguments.

First, it is settled case-law that, even in the absence of legislation, the right to rely on the principle of the protection of legitimate expectations extends to any individual where, by giving him precise assurances, an institution has led him to entertain reasonable expectations (see judgments of 11 March 1987, Van den Bergh en Jurgens and Van Dijk Food Products (Lopik) v EEC, C‑265/85, EU:C:1987:121, paragraph 44 and the case-law cited, and of 30 November 2009, France and France Télécom v Commission, T‑427/04 and T‑17/05, EU:T:2009:474, paragraph 259 and the case-law cited).

In whatever form they are given, precise, unconditional and consistent information from authorised and reliable sources constitute such assurances. However, a person may not plead breach of the principle unless the administration has given him precise assurances (see judgment of 14 February 2006, TEA-CEGOS and Others v Commission, T‑376/05 and T‑383/05, EU:T:2006:47, paragraph 88 and the case-law cited; judgment of 30 November 2009, France and France Télécom v Commission, T‑427/04 and T‑17/05, EU:T:2009:474, paragraph 260 and the case-law cited).

It must be stated that the Portuguese Republic does not claim that it was given precise and unconditional assurances by the Commission that no penalty payment could be imposed on it in compliance with the judgment of 10 January 2008, Commission v Portugal (C‑70/06, EU:C:2008:3). In addition, even if such assurances had been given, which is not apparent from the documents before the General Court, they would have been manifestly unlawful because the quantification of a penalty payment imposed by the Court of Justice does not allow the Commission any discretion as to what is appropriate. Where the Court of Justice orders a Member State to make a penalty payment, the Commission must examine whether the Member State which is found to have infringed its obligations meets the conditions laid down by the Court’s judgment and quantify the penalty payment for the period during which it did not comply fully.

Second, the principle of legal certainty requires that every act of the administration which produces legal effects should be clear and precise so that the person concerned is able to know without ambiguity what his rights and obligations are and to take steps accordingly (judgments of 1 October 1998, Langnese-Iglo v Commission, C‑279/95 P, EU:C:1998:447, paragraph 78, and of 30 November 2009, France and France Télécom v Commission, T‑427/04 and T‑17/05, EU:T:2009:474, paragraph 300).

It must be stated that, although it pleads breach of this principle, the Portuguese Republic does not give any indication of how it might have been infringed in this case, as the clarity of the scope of the contested decision is not called into question in the action. Even acknowledging that, under the guise of relying on this principle, the Portuguese Republic is actually trying to claim that, following the annulment of the first quantification decision and the repayment of the penalty payment by the Commission, it had a right to the inviolability of its legal situation, neither the principle of legal certainty nor any other general principle of EU law can in any event justify such a right.

Consequently, the fourth plea in law must be rejected as manifestly lacking any foundation in law.

The fifth plea in law, alleging breach of the principle ne bis in idem

The Portuguese Republic submits that the Commission attempted, through the adoption of a new individual act, to obtain what it had not been able to obtain by reason of the annulment of the first quantification decision by the EU Court. Accordingly, the adoption of the contested decision is contrary not only to the principle of legal certainty but also to the principle ne bis in idem. Because the contested decision imposes a penalty payment, even though Law No 67/2007 was adopted prior to the delivery of the judgment of 10 January 2008, Commission v Portugal (C‑70/06, EU:C:2008:3), it has a punitive nature which distorts the scope of Article 260(2) TFEU.

The Commission disputes that argument.

It is settled case-law that the principle ne bis in idem, also enshrined in Article 4 of Protocol No 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, is a fundamental principle of EU law the observance of which is guaranteed by the judicature (see judgment of 29 June 2006, Showa Denko v Commission, C‑289/04 P, EU:C:2006:431, paragraph 50 and the case-law cited). In addition, under Article 50 of the Charter of Fundamental Rights of the European Union, no one may be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.

The Portuguese Republic claims, in the fifth plea in law, that the adoption of the contested decision following the annulment of the first quantification decision breaches the principle ne bis in idem.

It must be stated in this regard that it is inherent in the mechanism under Article 260(2) TFEU that the quantification made by the Commission is merely an act implementing the order for the Member State in question to make a penalty payment in accordance with the judgment delivered by the Court of Justice. Thus, in the present case there is just one order, namely the penalty payment imposed in the judgment of 10 January 2008, Commission v Portugal (C‑70/06, EU:C:2008:3), for which the first quantification decision and the contested decision are at most two means of enforcement. Consequently, if it quantified the penalty payment for the first time in a decision which the EU judicature has found to be unlawful, the Commission is entitled, and even required (see paragraph 64 above), to make a new quantification by means of a new decision, without, however, breaching the principle ne bis in idem.

Accordingly, the fifth plea in law must be rejected as manifestly unfounded in law.

The sixth plea in law, alleging infringement of the division of powers between the Union and the Member States

The Portuguese Republic maintains that the contested decision limits the possibility for Member States to provide for vacatio legis periods. The Commission thus infringed the division of powers between the Union and the Member States.

The Portuguese Republic asserts that in this case a 30-day vacatio legis period was necessary — and thus consistent with the principle of proportionality — in order to allow individuals and public administrations to prepare for, first, the disappearance of an administrative system of liability which had been in force for 40 years and, second, its replacement by the new system of liability established by Law No 67/2007. The determination of the appropriate date of entry into force of a new law falls within the margin of discretion enjoyed by Member States. Conversely, the contested decision stems from the Commission’s wish to restrict the Member States’ powers, in breach of the rules governing the division of powers between the Union and the Member States.

The Commission disputes those arguments.

Contrary to its claims, in this case the Portuguese Republic clearly remained free to defer the entry into force of Law No 67/2007 for a period whose length it determined itself. It thus adopted that law, which was necessary to bring to an end the infringement established by the Court of Justice, on a date such that, given the length of the period which it had freely chosen, its entry into force was subsequent to the delivery of the judgment of 10 January 2008, Commission v Portugal (C‑70/06, EU:C:2008:3). For this reason, as is stated in paragraph 34 above, the Commission rightly considered that the Portuguese Republic incurred the penalty payment quantified in the contested decision.

The sixth plea in law must therefore also be rejected as manifestly lacking any foundation in law. In the light of all the above considerations, the action must be dismissed as manifestly lacking any foundation in law.

Costs

79

Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Portuguese Republic has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

hereby orders:

The action is dismissed as manifestly lacking any foundation in law.

The Portuguese Republic shall pay the costs.

Luxembourg, 27 June 2016.

Registrar

President

*1 Language of the case: Portuguese.