Punishing member states or influencing their behaviour or iudex (non) calculat?

Journal of Environmental Law

Volumn 13, Issue 2, 2001, Pages 235-261

  Borzsák, Levente ^a  

^a European University Institute   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL LEGISLATION;

EID: 0034859284     PISSN: 09528873     EISSN: None     Source Type: Journal    
DOI: 10.1093/jel/13.2.235     Document Type: Article

References (51)

1. Where reference is made to an article of a Treaty as it stands after 1 May 1999 (the entry into force of the Amsterdam Treaty), the number of the article is followed by the letters 'EC'. Where reference is made to an Article of a Treaty as it stood before 1 May 1999, the article is followed by the words 'of the EC Treaty'.
2. Suggestions of the ECJ on European Union in Reports on EU, Bulletin of the EC, Supplement 9/75, p 17.
3. In Article 7 EU (formerly known as Article F. 1 of the Treaty on European Union) such a mechanism can now be found. If the Council finds that a Member State is in breach of the principles on which the Union is founded (liberty, democracy, respect for human rights and fundamental freedoms and the rule of law), it may decide to suspend certain rights of that Member State deriving from the application of the Treaty.
4. Res. concerning the substance of the preliminary draft EU Treaty, OJ C-277/95, 17.10.83, paras 26-7, 136.
5. Intergovernmental Conferences: Contributions by the Commission, Bulletin of the EC, Supplement 2/91.
6. European Council, Reference Document of the Luxembourg Presidency: 'Draft Treaty on the Union' in Agence Europe Supplement, Europe Docs, 1722/1723, 5 July 1991, p 17.
7. Apart from the general method foreseen in Article 226, there are the following public enforcement procedures: Articles 227 EC, 88(2) EC, 95(9) EC, 237 EC and 298 EC.
8. It 'must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question failed to fulfil one of its obligations under the Treaty'. Case C-158/94, Commission v Italy [1997] ECR I-5789, para 57.
9. Case C-191/95, Commission v Germany [1998] ECR 5449, para 44.
10. Joined Cases 142 and 143/80, Essevi [1981] ECR 1413, para 15.
11. Nevertheless, compliance after the deadline of implementation does not necessarily cease the action. See Case 31/69, Commission v Italy [1970] ECR 25.
12. C-224/98, Commission v France.
13. European Commission, XIth REPORT on the monitoring [ . . . ] of Community law in IP/95/677, 1994.
14. Speech by Mr Santer to the European Parliament, Strasbourg, DN Speech/95/1 (17 January 1995).
15. Reflection Group Report for the 1996 IGC, at the RAPID web page DN Doc/95/8, 1995, paras 129-30.
16. Case C-473/93, Commission v Luxembourg [1996] ECR I-3207, para 52.
17. OJC 242, 21.8.96, p 6.
18. COM(1997) 299.
19. European Parliament: Resolution on the XIVth Annual Report, OJ C 56, 23.2.98.
20. Method of calculating the penalty payments provided for pursuant to Article 171 of the EC Treaty, OJ C 63, 28.2.97, pp 2-4.
21. Case 240/83 Procureur de la République v A.D.B.H.U. [1985] ECR 531.
22. Report for the Hearing in Case C-387/97, para 63.
23. Opinion of Advocate General Colomer in Case C-387/97 of 28.2.99 and Opinion of Advocate General Fennelly in Case C-197/98 of 9.12.99. Both cases were initiated by the Commission against the Greek Republic, but the second case was withdrawn from the register of the ECJ on 6 October 2000.
24. Oxford English Dictionary 2 (CD-ROM) v 1.10 (Oxford University Press, 1994). See also J.R. Nolan and J.M. Nolan-Haley, Black's Law Dictionary (St Paul West, 1990) p 1020.
25. Paras 84-5 of the opinion.
26. See paras 4, 11, 19 of the opinion in C-197/98.
27. Para 33 of the opinion of AG Colomer.
28. Para 41 of the opinion of AG Colomer.
29. Para 41 of the judgment.
30. Para 30 of the Opinion of AG Colomer.
31. Para 38 of the Opinion of AG Fennelly.
32. As noted before the pollution of the river Kouroupitos began in the sixties.
33. OJ C-242, 21.8.96, p 6, para 6.3.
34. No punishment without a law. The principle that a person can only be punished for a crime if the punishment is prescribed by law. Case 14/81 Alpha Steel v Commission [1982] ECR, p 749, para 28.
35. Paras 9 and 11 of the judgment in Case C-45/91 Commission v Greece [1992] ECR I-2509. See further Cases C-473/93 Commission v Luxembourg [1996] ECR I-3207 paras 5-6 of the judgment (three years elapsed between a letter and a letter of formal notice), C-101/91 Commission v Italy [1993] ECR I-191 paras 6-7 (seven months between the two documents), C-291/93 Commission v Italy [1994] ECR I-859) para 4 (a year elapsed after the sending of the formal letter).
36. The Commission clearly indicated in this letter of formal notice that Greece was in breach of the obligations arising from Article 228(1) EC. It also drew the attention of the Greek government to the possibility of a penalty payment under Article 228(2) EC. In the letter sent in 1993, these facts were not mentioned.
37. Ibid, Method, OJ C63, 28.2.97, pp 2-4.
38. Opinion of Advocate General Fennelly in C-334/94 Commission v France [1996] ECR I-1307 para 18.
39. Paras 57-8 of the Opinion of AG Colomer.
40. Para 34 of the Opinion of AG Fennelly.
41. Para 46 of the Opinion of AG Colomer.
42. He concludes that the Court's role is similar to that which it plays in exercising judicial review of a decision adopted by a Community institution. A judge cannot substitute the appreciation of the facts with his own. He can only examine whether the authority's decision has a manifest error, or whether it is an ultra vires decision. This entails that, in the present case, the ECJ can examine whether the sum required by the Commission is not excessive as regards the aim of the procedure - and can correct it respectively. Paras 94-6 of his Opinion.
43. Para 20 of the Opinion of AG Fennelly.
44. Case 197/98, para 48 of the Opinion of AG Fennelly. As noted, however, the ECJ did not have to decide this case.
45. The Commission proposed a seriousness coefficient of 6/20 and a duration coefficient of 2/3. The function looked like: 500*6*2*4.1 = 24.000.
46. See column 5 of the Table.
47. Introducing a square root into the calculation always condenses the values and diminishes the progressive feature of a function. Thus, richer Member States gain more with the square root than the poorer ones. See cols 9-10.
48. This quantity is hundreds of thousands of times bigger that the quantity of dioxins which caused the food scandal in Belgium. Belgium was at the centre of a scare over contamination with poisonous dioxins in 1999 after traces had been found in food. See (www.earthsystems.org/list/recycle/0076.html) on 21 July 2000.
49. (ens.lycos.com/ens/jul2000/2000L-07-06-10.html) on 6 July 2000.
50. (www.time.com/time/europe/magazine/2000/0707/greece.htm) on 7 July 2000.
51. According to this principle there should not be a second judgment on the same matter.