Spain fined in European Court of Justice judgement, November 2003

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Series Details 15.12.03
Publication Date 15/12/2003
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For only the second time in its history, the European Court of Justice (ECJ) imposed a fine on a Member State on 25 November 2003 (CJE/03/105) for failure to comply with one of its judgements. The case (C-278/01) concerned the failure of Spain to observe the EU's rules on water quality in the country's lakes, swimming pools and other inland bathing spots and it means Spain must now pay an annual fine for each year it has failed to comply with the 1998 Court ruling.

The ruling is clearly a success for the European Commission's DG Environment, although offcials stated that they would have much preferred that Spain had complied with the Bathing Water Directive rather than forcing the European Commission to ask for a penalty fine. Perhaps more importantly, the ruling demonstrates that the European Court of Justice is quite prepared to act when necessary to ensure that its judgements are respected.


The European Court of Justice rules on the interpretation and application of Community law. It was set up in 1952 when the European Coal and Steel Community was established to provide a means of ensuring that Community law is observed by the Member States.

There are two main types of cases that may be brought before the European Court of Justice: preliminary rulings and direct actions. Preliminary rulings are used to ensure that Community law is interpreted in a standard way throughout the Member States. A 'preliminary ruling reference' is made by a national court or tribunal which needs a decision on a question of Community law before it itself can give a judgement. The ECJ's decision is then applied to the national case. Direct actions may be brought by Community institutions, Member States, individuals or companies. Cases may concern failure to fulfil Treaty obligations, failure to act, annulment of Community Acts, or claims for damages.

The decisions of the ECJ are binding and final. There can be no appeal against them but the European Court of Justice still faces the challenge of ensuring that its decisions are respected by the relevant Member State. During the Intergovernmental Conference, which prepared the Maastricht Treaty, the UK government pressed for new powers to be granted to the ECJ that would allow judges the right to levy fines when their rulings are ignored. The UK suggestions were incoporated into the Treaty on European Union (TEU) and now under Article 228 of the Treaty, the European Commission may apply to the ECJ to impose a lump sum or a penalty payment on a Member State if it fails to comply with a judgement of the Court. This is of course assessed on the basis of all developments taking place after the initial judgment was made.

Although the ECJ was granted with these new powers when the Maastricht Treaty entered into force on 1 November 2003, the procedures by which the European Commission would apply to the Court to impose a penalty took much longer to be agreed. Indeed, it was only in June 1996, after much criticism, that the European Commission reached agreement on the crtieria to be used when applying to the ECJ to impose a penalty. This hesitancy coupled with the European Commission's reticency in submitting individual cases and recommendations for specific fines to the ECJ was said to reflect a fear of challenging the Union's larger Member States.

The official procedure that must now be followed when the European Commission wishes to apply to the ECJ to impose a penalty on a Member State is as follows:

  • First the European Commission must apply to the Court of Justice under Article 226 of the European Court of Justice if a Member State has failed to fulfil an obligation under the Treaty
  • If the ECJ rules in favour of the European Commission then the Member State must comply with the Court's ruling and therefore its specific obligations under the Treaty
  • If the Member State fails to respond to the ECJ's judgement then it may apply to the ECJ to impose a lump sum or a penalty payment on the Member State under Article 228 but the European Commission must first have given the Member State in question the opportunity to submit observations (so called letter of Formal Notice) and then delivered a Reasoned Opinion on the matter.

Unsurprisingly, the whole procedure takes a long time - the first case began in 1988 but it was not until 2000 that the ECJ imposed a penalty. In addition, the actual imposition of a penalty is very rare. There have been several cases where the European Commission has considered taking a Member State to court particularly in the field of environmental and internal market legislation. There was also the well publicised case, which concerned the French ban on british beef in the light of the BSE scare. Even after the European Commission passed a Directive accpting British beef, France conitnued to impose the ban and it would have been forced to pay a daily penalty by the ECJ had it not at the last minute lifted the ban on 2 October 2002.

However, there have only been two instances where the Member States were forced to pay a fine: Greece was fined in July 2000 for failing to clean up a toxic waste dump and Spain has now been fined for failing to ensure the quality of its bathing water.

The Greek Case - Kouroupitos Waste Dump

This case (C-387/97) concerned the operation of an illegal waste dump at a deep gorge at Kourouptios in the region of Chania, Crete. The site was used to illegally dispose of domestic waste, and, for a certain period, quantities of hazardous waste (for example, waste oils and batteries) and a range of commercial and industrial waste.

In 1987, European Commission environment officials cited the dump as being in breach of EU Directives on human health and the environment and ordered for the site to be cleaned up. However, the Greek government failed to respond and so the European Commission brought the case before the European Court of Justice.

In 1992, the Court ruled that Greece had indeed failed to comply with Community law and called for the site to be cleared. In its judgement, the ECJ declared that,

“by failing to take the necessary measures to ensure that in the area of Chania waste and dangerous waste are disposed of without endangering human health and without harming the environment, and by failing to draw up for that area plans for the disposal of waste and of toxic and dangerous waste, Greece has failed to fulfil its obligations under Articles 4 and 6 of Directive 75/442/EEC on waste and Articles 5 and 12 of Directive 78/319/EEC on toxic and dangerous waste”.

However, local authorities responsible for the dump refused to agree to state plans to close the dump and replace it with a high-tech recycling plant closer to an inhabited area. Because Greece failed to comply with the judgement, the European Commission brought the matter before the Court for a second time in November 1997, arguing that the Hellenic Republic had still not drawn up and applied the plans and programmes necessary for the disposal of waste, specifically toxic waste, in the district of Chania and requesting a penalty payment of ECU 24 600 per day, with effect from notification to the Hellenic Republic of the Court's original judgment.

On 4 June 2000 the Court ruled that Greece had indeed failed to meet its obligations under Community law and, for the first time, the ECJ made use of its powers under Article 228 by imposing a periodic penalty payment on Greece, in an attempt to induce it to comply with its obligations.

In determining the amount of fine to be imposed, the Court considered three basic crtieria:

  1. the duration of the infringement
  2. its degree of seriousness
  3. the ability of the Member State concerned to pay

The Court decided that 'in view of the serious - indeed particularly serious - nature of the breaches of obligations, and of the duration of the infringement which was held to be considerable', Greece should pay a penalty payment of 20 000 Euros for each day of delay in complying with the 1992 judgment until such time as it did meet its obligations under EU law.

Following the second Court judgement, Greece sent the European Commission an up-to-date waste management plan for Chania. It later informed the Commission that, on 26 February 2001, the Kouroupitos site had stopped receiving waste and had been made secure against future illegal waste disposal. Therefore Greece was able to stop paying fines from 26 February 2001, the date of definitive closure of the Kouroupitos site.

The Spanish Case - Bathing Water

Despite several other infringement cases since the Greek case, including one against France concerning nightwork by women (C-224/99) and another against Greece concerning recognition of diplomas (Case C-197/98), the ECJ only imposed a penalty on a Member State for the second time on 25 November 2003 for failing to comply with EU legislation governing the quality of bathing water.

The Bathing Water Quality Directive aims to ensure that bathing waters meet minimum quality criteria by establishing a set of Community standards - some binding, others (more stringent) guide values - for a range of key parameters (such as faecal bacteria present) and by requiring Member States to carry out regular water quality monitoring. The legal deadline for complying with the standards expired in 1985 and Spain was, therefore, obliged to comply by the day of its accession, in 1986. However, the European Commission's annual bathing season reports showed that Spain had failed to meet the standards and so the Commission decided to file a case with the ECJ.

In February 1998, the court ruled that Spain had not ensured that the quality of its inshore bathing waters complied with the requirements of the Bathing Water Quality Directive and ordered Spain to take the necessary action to fulfill its obligations. However, the results of the 1998 and 1999 bathing season indicated that the quality of Spain's inland waters was still unsatisfactory and so the European Commission sent a Reasoned Opinion (second warning letter) to Spain in July 2000 (IP/00/871).

The Spanish authorities responded by implementing more concrete measures with a view to ensuring compliance. However the 2000 bathing season report showed that only 79.2% of Spanish inland bathing waters complied with the binding values set out in the Directive and therefore the European Commission decided on 23 May 2001 (IP/01/746) to invoke a second round of enforcement action under Article 228 of the EC Treaty, by which the ECJ would impose a penalty on Spain for failing to comply with its obligations. The European Commission suggested that on 25 November 2003, the ECJ went against an advisory opinion given in June by one its senior officers and ruled in favour of the European Commission, declaring that Spain had not taken all the measures necessary to comply with its 1998 judgement and therefore decided to impose a periodic penalty on Spain. The ECJ considered that the European Commission had given Spain sufficient time - n next year's analyses of tests carried out throughout the bathing season. These results will be known in Autumn/Winter 2004 and it will then be clear what percentage of inshore bathing water still fails to meet the standard and what fine must be paid.

The European Commission welcomed the Court's decision (IP/03/1599). European Commissioner for the Environment, Margot Wallström, said:

'This is only the second time that a financial penalty has been imposed on a Member State for breach of EU law. It is always regrettable when the Commission finds itself obliged to ask for such a penalty, and it never does so lightly. However, the fact that penalties are possible and that the Court of Justice is willing to use them reinforces respect for EU law. This is all the more important in a case such as this where public health is at stake. I look forward to Spain now redoubling its efforts to secure improved bathing water quality for the benefit of the public and the environment.'

The Commission spokesperson for environmental issues added that the European Commission was not disappointed at the amount of the fine, even though it had originally requested a higher amount, since it was not the amount of money that was important but the efforts made to comply with the directive.

Future Fines?

The Court's second use of its powers under Article 228 of the EC Treaty has raised questions about whether it may seek to use this instrument more in the future to ensure that Member States comply with Community law. There are currently several cases awaiting decisions in the Court of Justice regarding Member States' failure to comply with EU legislation (See European Commission: Infringements), in particualr one case against Ireland regarding the reorganisation of working time and two cases against France, one concerning the fisheries sector and one concerning the incorrect transposal of the third insurance Directive.

Whether the Court decides to use its powers to inpose penalties again in the future, the Spanish bathing water case has highlighted the ultimate authority of the Court at a time when its role is under review as part of the European Convention and the planned Constitutional Treaty, with discussions focussing on increasing citizens' rights to challenge laws and measures adopted by EU institutions at the European Court of Justice.

Further information within European Sources Online:

European Sources Online: Topic Guides

Introduction to the EU: European Court of Justice
European Court of Justice
The Environmental Policy of the European Union

European Sources Online: In Focus

Bathing Water Directive to be revised, January 2001

European Sources Online: European Voice

02.11.95: ECJ powers face reappraisal
11.07.96: Brittan attacks UK's bid to curb ECJ
28.11.96: Commission set to fine errant states
09.01.97: Member States which ignore ECJ to face tough penalties
30.01.97: Threat of fines results in a flurry of action
22.05.97: Threat of fines bring governments into line
19.06.97: Athens targeted for next round of fines
06.07.00: Greece counts the cost of defying ECJ

European Sources Online: Financial Times

26.11.03: Spain fined over bathing water

Further information can be seen in these external links:
(long-term access cannot be guaranteed)

EU Institutions

European Commission

DG Press and Communication

Press Releases:

30.07.01: Waste management: Commission closes infringement procedure against Greece on Cretan waste tip [IP/01/1150]
23.05.01: Commission refers Spain to the Court of Justice a second time over bathing waters [IP/01/746]
25.10.02: Commission proposes more modern and simple rules to ensure clean bathing water across the EU [IP/02/551]
05.06.03: Bathing Water Report 2002: Continuing good standards despite bad weather conditions [IP/03/805]
25.11.03: Spanish bathing water: Commission welcomes European Court penalty decision [IP/03/1599]

DG Environment

Bathing Water
2003 Report on Bathing Water Quality - 2002 bathing season
Proposal for a Directive concerning the quality of bathing water [COM(2002)581 final]

DG Secretariat-General

Application of Community Law
Twentieth Annual Report on Monitoring the Application of Community Law [COM(2003)669]

European Court of Justice

The Statute of the Court of Justice

Press Releases:

22.06.99: First hearing concerning a request for a Member State to be ordered to pay a periodic penalty payment [Case C-387/97]
28.11.99: Opinion of Advocate General Ruiz-Jarabo Colomer in Case C-387/97
04.07.00: Judgment of the Court of Justice in Case C-387/97 Commission v Greece: The Court of Justice orders Greece to pay a penalty payment of 20 000 euros per day
25.11.03: Judgement of the Court in Case-278/01 Commission v Spain


22.06.99: Commission v Hellenic Republic - Failure of a Member State to fulfill its obligations [Case C-387/97]
22.06.99: Commission v Kingdom of Spain - Failure of a Member State to fulfill its obligations [Case C-278/01]

Miscellaneous Organisations

European University Institute

The Role of the European Court of Justice in the Development of the European Community Environmental Policy [Only available in print - 1992, EPU 1992/18]
Legitimacy through Jurisprudence? The Impact of the European Court of Justice on the Legitimacy of the European Union [2003, EUI Working Paper LAW 2003/12]
The European Court of Justice and the Rhetoric of Affirmative Action [1998, RSC 1998/30]

The European Policy Centre

The Role of The European Court of Justice: Has it Changed? Will it Change? [March 2000]
The reform of the European Court of Justice [May 2003]


Legal procedures relating to non-compliance with the EC Treaty and European Environmental legislation

Malta-EU Information Centre

FAQ: Fined by the EU

BBC News Online

The European Court of Justice

Further and subsequent information on the subject of this week's In Focus can be found by an 'Advanced Search' in European Sources Online by inserting 'European Court of Justice' or 'Bathing water' in the keyword field and selecting 'All of these words'.

Helen Bower
Compiled: 15 December 2003

Background and reporting on the week's main stories in the European Union and the wider Europe.

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