Corte di giustizia UE/2012

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 19 December 2012 ( * ) (Failure of a [OSCURATO:PERSONA] to fulfil obligations – [OSCURATO:PERSONA] 85/337/EEC – [OSCURATO:PERSONA] of the effects of certain public and private projects on the environment – Incorrect transposition – Annexe II – Point 1(a) to (c) – [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of Justice – Finding of infringement – [OSCURATO:PERSONA] 260 TFEU – Pecuniary penalties – Lump sum payment – [OSCURATO:PERSONA] ability to pay – Economic crisis – [OSCURATO:PERSONA] on the basis of current economic data) [OSCURATO:PERSONA] C‑279/11, ACTION under [OSCURATO:PERSONA] 260(2) TFEU for failure to fulfil obligations, brought on 1 June 2011, [OSCURATO:PERSONA], represented by P. Oliver and K. Mifsud-Bonnici, acting as Agents, with an address for service in Luxembourg, applicant, v [OSCURATO:PERSONA], represented by E. Creedon and D. O’Hagan, acting as Agents, E. Regan, SC, and de C. Toland, BL, with an address for service in Luxembourg, defendant, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of L. [OSCURATO:PERSONA], acting as President of the [OSCURATO:PERSONA], J.‑C. Bonichot, C. Toader (Rapporteur), A. Prechal and E. Jarašiūnas, [OSCURATO:PERSONA], [OSCURATO:PERSONA]: N. [OSCURATO:PERSONA], [OSCURATO:PERSONA]: T. [OSCURATO:PERSONA], [OSCURATO:PERSONA], having regard to the written procedure and further to the hearing on 4 October 2012, having decided, after hearing the [OSCURATO:PERSONA], to proceed to judgment without an Opinion, gives the following [OSCURATO:PERSONA] 1 In its application, the [OSCURATO:PERSONA] initially claimed that the [OSCURATO:PERSONA] should: –        declare that, by failing to take the necessary measures to comply with the judgment of 20 November 2008 in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 260 TFEU; –        order [OSCURATO:PERSONA] to pay to the [OSCURATO:PERSONA] a lump sum of EUR 4 174.80 multiplied by the number of days between the judgment in [OSCURATO:PERSONA] C‑66/06 and either compliance by [OSCURATO:PERSONA] with that judgment or the judgment in the present proceedings, whichever is the sooner; –        order [OSCURATO:PERSONA] to pay to the [OSCURATO:PERSONA] a daily penalty payment of EUR 33 080.32 from the date of the judgment in the present proceedings to the date of compliance by [OSCURATO:PERSONA] with the judgment in [OSCURATO:PERSONA]66/06; and –        order [OSCURATO:PERSONA] to pay the costs. 2 By letter of 6 July 2012, the [OSCURATO:PERSONA] amended its application. Thus, the [OSCURATO:PERSONA] no longer asks that [OSCURATO:PERSONA] be ordered to pay a daily penalty payment, but requests only that that [OSCURATO:PERSONA] be ordered to pay a lump sum of EUR 4 387 714.80. Legal context 3 [OSCURATO:PERSONA] 1(2) of [OSCURATO:PERSONA] 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by [OSCURATO:PERSONA] 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5) (‘[OSCURATO:PERSONA] 85/337’), the concept of ‘project’ covers, inter alia, ‘the execution of construction works or of other installations or schemes’ and ‘other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources’. The concept of ‘development consent’ is defined as ‘the decision of the competent authority or authorities which entitles the developer to proceed with the project’. 4 [OSCURATO:PERSONA] 2(1) and (3) of [OSCURATO:PERSONA] 85/337 provides as follows: ‘1.       [OSCURATO:PERSONA] shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. Those projects are defined in [OSCURATO:PERSONA] 4. … 3.       Without prejudice to [OSCURATO:PERSONA] 7, [OSCURATO:PERSONA] may, in exceptional cases, exempt a specific project in whole or in part from the provisions laid down in this [OSCURATO:PERSONA]. …’. 5 [OSCURATO:PERSONA] 4 of [OSCURATO:PERSONA] 85/337 provides as follows: ‘1.       Subject to [OSCURATO:PERSONA] 2(3), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10. 2.       Subject to [OSCURATO:PERSONA] 2(3), for projects listed in Annex II, the [OSCURATO:PERSONA] shall determine through: (a)       a case-by-case examination; or (b)       thresholds or criteria set by the [OSCURATO:PERSONA], whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. [OSCURATO:PERSONA] may decide to apply both procedures referred to in (a) and (b). 3.       When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. 4.       [OSCURATO:PERSONA] shall ensure that the determination made by the competent authorities under paragraph 2 is made available to the public.’ 6 Annex II to the directive lists the projects subject to [OSCURATO:PERSONA] 4(2). Point 1 of that annex, which concerns ‘Agriculture, silviculture and aquaculture’, covers, inter alia, under (a) to (c) respectively, projects for the restructuring of rural land holdings, projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes, and water management projects for agriculture, including irrigation and land drainage projects. 7 Annex III to [OSCURATO:PERSONA] 85/337, which lists the selection criteria referred to in [OSCURATO:PERSONA] 4(3) thereof, provides, with regard to the characteristics of the projects, that those characteristics must be considered having regard, in particular, to the size of the project, the cumulation with other projects, the use of natural resources, the production of waste, pollution and nuisances and the risk of accidents, having regard in particular to substances or technologies used. 8 Concerning the location of projects, Point 2 of that annex states that the environmental sensitivity of geographical areas likely to be affected by projects must be considered having regard, in particular, to the existing land use, to the relative abundance, quality and regenerative capacity of natural resources in the area, as well as to the absorption capacity of the natural environment. 9 Point 3 of that annex, relating to ‘[c]haracteristics of the potential impact’, provides that the potential significant effects of projects must be considered having regard to the criteria set out in Points 1 and 2 of the annex, in particular the extent of the impact (geographical area and size of the affected population). The judgment in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] 10 After sending to it a request for information dated 13 September 2001, the [OSCURATO:PERSONA] sent to [OSCURATO:PERSONA], on 23 October 2001, a letter of formal notice relating to a trial salmon farm on the Kenmare estuary ([OSCURATO:PERSONA], [OSCURATO:PERSONA]). [OSCURATO:PERSONA] replied to that letter on 21 May 2002. 11 On 18 October and 19 December 2002, the [OSCURATO:PERSONA] sent [OSCURATO:PERSONA] further letters of formal notice. The first of these letters set out the [OSCURATO:PERSONA]’s position that [OSCURATO:PERSONA]’s transposition of [OSCURATO:PERSONA] 85/337 was deficient with regard to the project categories set out in point 1(a) to (c) of Annex II to the directive. The second referred to deficient transposition of the directive with regard to projects falling within point 1(f) of Annex II. [OSCURATO:PERSONA] replied by letters of 9 April and 26 May 2003. 12 On 11 July 2003, the [OSCURATO:PERSONA] sent [OSCURATO:PERSONA] a reasoned opinion calling on it to take the necessary measures to comply with that opinion within two months of its receipt. 13 [OSCURATO:PERSONA], finding the position adopted by [OSCURATO:PERSONA] in a letter of 7 November 2003 in response to the reasoned opinion to be unsatisfactory, brought an action under the second paragraph of [OSCURATO:PERSONA] 226 EC, which gave rise to the judgment in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] . 14 In that judgment, the [OSCURATO:PERSONA] held that ‘[b]y not adopting, in conformity with Articles 2(1) and 4(2) to (4) of … [OSCURATO:PERSONA] 85/337 … all measures to ensure that, before consent is given, projects likely to have significant effects on the environment that belong to the categories of projects covered by Point 1(a) to (c) and (f) of Annex II to that directive are made subject to a requirement for development consent and to an assessment with regard to their environmental effects in accordance with Articles 5 to 10 of the directive, [OSCURATO:PERSONA] [had] failed to fulfil its obligations under the directive’. The pre‑litigation procedure in the present case 15 On 22 March 2010, following an initial exchange of letters with [OSCURATO:PERSONA], the [OSCURATO:PERSONA] sent a letter of formal notice to that [OSCURATO:PERSONA], on the basis of [OSCURATO:PERSONA] 260(2) TFEU, in which it stated that the measures envisaged by [OSCURATO:PERSONA] concerning the transposition of Point 1(a) to (c) of Annex II to [OSCURATO:PERSONA] 85/337 were unsatisfactory and requested it to submit its observations in that regard within two months of its receipt. 16 In its letter of 30 November 2010, [OSCURATO:PERSONA] expressly acknowledged that there were lacunae in the transposition of those provisions of [OSCURATO:PERSONA] 85/337 and described the reforms which it proposed to remedy the lacunae. 17 [OSCURATO:PERSONA] subsequently concluded that [OSCURATO:PERSONA] had not adopted the measures necessary to ensure compliance with the judgment in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and therefore decided to bring the present action. The failure to fulfil obligations 18 According to the [OSCURATO:PERSONA]’s established case‑law on [OSCURATO:PERSONA] 228(2) EC, the reference date for assessing whether there had been an infringement for the purpose of that provision was the date of expiry of the period prescribed in the reasoned opinion issued under that provision (see [OSCURATO:PERSONA]610/10 [OSCURATO:PERSONA] v Spain [2012] ECR I‑0000, paragraph 66). 19 Since the FEU Treaty abolished the reasoned opinion stage in infringement proceedings under [OSCURATO:PERSONA] 260(2) TFEU, the reference date for assessing whether there has been an infringement for the purpose of [OSCURATO:PERSONA] 260 TFEU is the date of expiry of the period prescribed in the letter of formal notice issued in accordance with the first subparagraph of [OSCURATO:PERSONA] 260(2) (see [OSCURATO:PERSONA] v Spain , paragraph 67). 20 During the present proceedings, [OSCURATO:PERSONA] has claimed that its national law has been brought into conformity with the judgment in [OSCURATO:PERSONA]66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] as a result, inter alia, of the entry into force, on 8 September 2011, of Planning & [OSCURATO:PERSONA] (Amendment) (N° 2) [OSCURATO:PERSONA] 2011 and [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) (Agriculture) [OSCURATO:PERSONA] 2011 (‘S.I. No 456/11’ or ‘the [OSCURATO:PERSONA]’). 21 Thus, it is common ground that by the end of the two‑month period following [OSCURATO:PERSONA]’s receipt of the letter of formal notice referred to in paragraph 15 above, that [OSCURATO:PERSONA] had not in any event adopted the legislative measures necessary to ensure compliance with the judgment in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] . 22 Accordingly, it must be held that, by failing to adopt all the measures necessary to comply with the judgment in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 260 TFEU. The imposition of a lump sum Arguments of the parties 23 [OSCURATO:PERSONA] submits that, although [OSCURATO:PERSONA] 260(1) TFEU does not specify the period within which a judgment of the [OSCURATO:PERSONA] must be complied with, the importance of immediate and uniform application of [OSCURATO:PERSONA] law means that the process of compliance must be initiated at once and completed as soon as possible, which is not the position in the present case, since, by the date on which the present action was brought, more than two and a half years had already elapsed since the delivery of the judgment in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] . 24 In the present case, the [OSCURATO:PERSONA] initially decided, in accordance with its 2005 [OSCURATO:PERSONA] entitled ‘Application of [OSCURATO:PERSONA] 228 EC’ (SEC (2005) 1658), as updated by the 2010 [OSCURATO:PERSONA] entitled ‘Application of [OSCURATO:PERSONA] 260 of the Treaty on the Functioning of the [OSCURATO:PERSONA] – Up-dating of data used to calculate lump sum and penalty payments to be proposed by the [OSCURATO:PERSONA] to the [OSCURATO:PERSONA] of Justice in infringement proceedings’ (SEC (2010) 923/3) (‘the 2010 [OSCURATO:PERSONA]’), to request payment by the defendant [OSCURATO:PERSONA] of both a lump sum and a daily penalty payment. 25 However, by decision of 21 June 2012, the [OSCURATO:PERSONA] withdrew its claim that a periodic penalty payment should be imposed. It nevertheless maintains its request that [OSCURATO:PERSONA] be ordered to pay a lump sum, to be calculated with reference to two separate periods. 26 Accordingly, for the period between delivery of the judgment in [OSCURATO:PERSONA]66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and 8 September 2011, the date of entry into force of the [OSCURATO:PERSONA] designed to bring Irish law into line with that judgment, the [OSCURATO:PERSONA] retains the factors which it initially proposed with a view to the imposition of a lump sum, having regard to the seriousness of the infringement and the need to ensure that the penalty has a deterrent effect. 27 As regards the seriousness of the infringement, the [OSCURATO:PERSONA] proposes a factor of 7 on a scale of 1 to 20. 28 In that respect, it contends that, by setting and maintaining high national thresholds below which projects are not subject to a prior environmental impact assessment, [OSCURATO:PERSONA] committed a number of serious breaches of [OSCURATO:PERSONA] 85/337 liable to cause irreparable damage to the environment. Next, it submits that the judgment in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , in which the [OSCURATO:PERSONA] held that [OSCURATO:PERSONA] had failed to fulfil its obligations, formed part of a pattern of settled case‑law of the [OSCURATO:PERSONA] which justifies the failure in question being regarded as more serious. 29 This, the [OSCURATO:PERSONA] submits, is compounded by the fact that, when the [OSCURATO:PERSONA] in issue repeats the unlawful conduct in a specific sector, that [OSCURATO:PERSONA] then aggravates the seriousness of the alleged failure to fulfil obligations. [OSCURATO:PERSONA] is the case with regard to [OSCURATO:PERSONA], whose failure to fulfil its obligations under [OSCURATO:PERSONA] 85/337 has been established by the [OSCURATO:PERSONA] on four occasions ([OSCURATO:PERSONA] C‑392/96 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [1999] ECR I‑5901; [OSCURATO:PERSONA] C‑215/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2008] ECR I‑4911; [OSCURATO:PERSONA] C‑427/07 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2009] ECR I‑6277; and [OSCURATO:PERSONA] C‑50/09 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2011] ECR I‑0000). [OSCURATO:PERSONA], the [OSCURATO:PERSONA] points out that the judgment in [OSCURATO:PERSONA] C‑392/96 was the subject of proceedings under [OSCURATO:PERSONA] 228 EC in [OSCURATO:PERSONA] C‑294/03 but the [OSCURATO:PERSONA] subsequently withdrew its application. [OSCURATO:PERSONA], [OSCURATO:PERSONA] has not yet complied with the [OSCURATO:PERSONA]’s judgments in [OSCURATO:PERSONA] C‑215/06 or in [OSCURATO:PERSONA] C‑50/09. 30 As regards the necessary deterrent effect in the present case, the [OSCURATO:PERSONA] uses the ‘n’ factor which it fixed in the context of its 2010 [OSCURATO:PERSONA] at 2.84, and which is a geometric mean based on the [OSCURATO:PERSONA] gross domestic product (GDP) and the weighting of votes of that [OSCURATO:PERSONA] within the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. It is apparent from that communication that the economic data used in that regard are those for 2008 (n-2). 31 On the basis of those factors and the lump sum fixed for [OSCURATO:PERSONA] in the 2010 [OSCURATO:PERSONA], namely EUR 210, the [OSCURATO:PERSONA] takes the view that the [OSCURATO:PERSONA] should impose on that [OSCURATO:PERSONA] an initial lump sum equal to EUR 4 174.80 (EUR 210 x 7 x 2.84) multiplied by the number of days which elapsed between the date of delivery of the judgment in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and 8 September 2011, namely 1021. [OSCURATO:PERSONA] initial lump sum should therefore be EUR 4 262 470.80. 32 For a second period, between 8 September 2011 and 21 December 2011, the date on which guidelines drawing the attention of landowners to the sensitivity of certain areas and their obligations were published online, the [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] should impose a second lump sum of EUR 125 244, corresponding to a daily sum of EUR 1 192.80, for which a seriousness coefficient of 2 is to be used, multiplied by 105, that is to say, the number of days between those two dates. 33 [OSCURATO:PERSONA] essentially takes the view that the infringement relating to the first period was continuing, between 8 September and 21 December 2011, in relation to S.I. No 456/11, in so far as the public notices referred to in Regulation 19(2) of that statutory instrument had not been published. [OSCURATO:PERSONA] also criticises the fact that certain areas of specific environmental sensitivity in the Irish countryside had not been classified as [OSCURATO:PERSONA] sites, ‘[OSCURATO:PERSONA]’ (NHAs) or nature areas. For those areas, the difficulty stems from the fact that the evaluation as to whether it was necessary to undertake an environmental assessment of a project depended on the developer being sufficiently aware that such a project was liable to have significant effects on the environment. Thus, according to the [OSCURATO:PERSONA], it was possible for a landowner, when his activities fell below the fixed threshold, to undertake environmentally harmful activities in those areas without being required to submit an application for an evaluation as to whether those activities necessitated an environmental assessment. 34 [OSCURATO:PERSONA] is also of the view that landowners had not been individually notified of the presence on their land of registered archaeological sites, with the result that it was difficult to maintain prosecutions in the event of infringement. [OSCURATO:PERSONA] also points out that, while a landowner is deemed to be aware of the presence of monuments on his land where a public notice listing such monuments and sites has been published, the last public notification was issued in the 1990s and [OSCURATO:PERSONA] did not anticipate a revision of the list with a view to new public notification until 2012, which demonstrates that not all monuments were yet fully covered by a public notice. 35 [OSCURATO:PERSONA] also criticises a draft guidance document for farmers published on the internet by the Department of Agriculture, Food and the Marine (DAFM), by which the latter set out an approach to interpretation and application of Regulation 3(4) of S.I. No 456/11 which placed in serious doubt the capacity of that statutory instrument to satisfy the judgment in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] . Indeed, that document was a source of grave confusion as to the obligations borne by farmers. 36 [OSCURATO:PERSONA], the [OSCURATO:PERSONA] acknowledges that compliance with the judgment in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] was finally achieved as a result of [OSCURATO:PERSONA]’s publication, on 22, 24, 28 and 31 December 2011, of the necessary public notices, which rendered the regulatory acts fully effective and applicable to landowners as regards numerous archaeological sites and nature areas. In particular, with regard to 630 ‘[OSCURATO:PERSONA]’ which had not been the subject of any statutory designation, the [OSCURATO:PERSONA] accepts that [OSCURATO:PERSONA] remedied that lacuna by publishing a public notice on 22 December 2011 informing landowners of the sensitivity of particular areas and the obligations thereby arising. Moreover, as regards the draft guidance document published on the website of the Department of Agriculture, Food and the Marine, the [OSCURATO:PERSONA] recognises that the amended, definitive version of that document, published on 22 December 2011, brought an end to the infringement in question. 37 For reasons of simplification, the [OSCURATO:PERSONA] used 22 December 2011 as the date of full compliance. 38 [OSCURATO:PERSONA] submits, in its defence, that the promulgation of the [OSCURATO:PERSONA] brought Irish law fully into compliance with the judgment in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] . [OSCURATO:PERSONA] concludes in this respect that the [OSCURATO:PERSONA] should hold that it is unnecessary to impose a periodic penalty payment as [OSCURATO:PERSONA] has complied with that judgment. [OSCURATO:PERSONA], [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] should not impose a lump sum payment on it, particularly in view of [OSCURATO:PERSONA]’s low ability to pay. 39 [OSCURATO:PERSONA] acknowledges that it has taken some time to comply with the judgment in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , it claims that it has, none the less, demonstrated utmost good faith concerning the fulfilment of its obligations with regard to the environment and that the delay in issue was due to political circumstances. [OSCURATO:PERSONA], [OSCURATO:PERSONA] submits that it encountered difficulties in drafting the measures necessary to comply with that judgment and the [OSCURATO:PERSONA] was also closely involved in the drafting. 40 [OSCURATO:PERSONA] explains that, under the newly adopted regulations, the thresholds above which an environmental assessment is required have been substantially lowered. [OSCURATO:PERSONA], farmers are now required to notify the competent authority in advance of their intention to carry out agricultural activities and that authority is required to carry out a case-by-case review as to whether those activities call for a prior environmental assessment in view of the risk that such activities may have a significant impact on the environment. Only the most insignificant activities will fall below the new thresholds. 41 In so far as it was in compliance with the judgment in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] by 8 September 2011, [OSCURATO:PERSONA] claims that there is no need to impose a lump sum payment on it. Should the [OSCURATO:PERSONA], however, take the view that the imposition of such a lump sum is necessary, [OSCURATO:PERSONA] considers that, irrespective of the minimum lump sum payment set for it in the 2010 [OSCURATO:PERSONA], namely EUR 1 501 000, the daily lump sum penalty actually imposed by the [OSCURATO:PERSONA] should not exceed EUR 630 per day, with the result that the total lump sum should not exceed EUR 643 230. 42 In any event, [OSCURATO:PERSONA] contests the methodology used by the [OSCURATO:PERSONA] to calculate the value of ‘n’, corresponding to [OSCURATO:PERSONA]’s ability to pay. [OSCURATO:PERSONA], [OSCURATO:PERSONA] submits, uses data relating to 2008, even though, between 2008 and 2010, [OSCURATO:PERSONA]’s GDP decreased by 7.4% in real terms and by 13.3% in nominal terms, due to the high exposure of the Irish economy to the economic and financial crisis. [OSCURATO:PERSONA], as the population of [OSCURATO:PERSONA] also grew by 2.5% between the 2006 census and that of 2011, the GDP per capita also decreased. In addition, [OSCURATO:PERSONA]’s inflation rate has increased and its budgetary deficit increased from 7.3% of GDP in 2008 to 32.4% of GDP in 2010. Similarly, its debt increased from 44.4% of GDP in 2008 to 96.2% of GDP in 2010 and, according to certain estimates, to an estimated 110.8% of GDP in 2011. [OSCURATO:PERSONA] also points out that, precisely as a result of the economic difficulties which it has encountered, it has, inter alia, received financial support amounting to EUR 85 billion (55% of its GDP) from the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] Mechanism, [OSCURATO:PERSONA]’s own [OSCURATO:PERSONA] and bilateral loans from the [OSCURATO:PERSONA] of Denmark, the [OSCURATO:PERSONA] of Sweden and the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and [OSCURATO:PERSONA]. 43 Therefore, the use of 2008 figures in calculating the level of any penalty payment would be inappropriate and lead to the imposition of disproportionate penalty amounts. [OSCURATO:PERSONA], [OSCURATO:PERSONA] also argues, has recently taken into account such a line of argument in paragraph 42 of its judgment in [OSCURATO:PERSONA] C‑407/09 [OSCURATO:PERSONA] v Greece [2011] ECR I‑0000. [OSCURATO:PERSONA] infers from this that, assuming that the [OSCURATO:PERSONA] follows the [OSCURATO:PERSONA]’s methodology, only a coefficient of 1 could be used in order to reflect [OSCURATO:PERSONA]’s ability to pay. 44 [OSCURATO:PERSONA], [OSCURATO:PERSONA], emphasising its good will in the steps taken by it to transpose [OSCURATO:PERSONA] 85/337 and the fact that it had been criticised for the incorrect transposition of only certain provisions of the directive, disputes the seriousness coefficient of 7 applied by the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] also claims that, in the light of the existence of other strict standards in Irish law, inter alia precautionary standards, and because of good agri-environmental practices in the Irish countryside, the defects affecting the measures transposing [OSCURATO:PERSONA] 85/337 did not lead to negative effects on the environment. 45 [OSCURATO:PERSONA] submits that a seriousness coefficient of 3 would be appropriate, in particular when compared with that applied in the judgment in [OSCURATO:PERSONA] C‑278/01 [OSCURATO:PERSONA] v Spain [2003] ECR I‑14141. 46 [OSCURATO:PERSONA] also claims that its public authorities were engaged in a constructive process of dialogue with the [OSCURATO:PERSONA] on the content of the legislative proposals to be enacted following the judgment in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] . According to [OSCURATO:PERSONA], the delay in the enactment of those measures was attributable to the fact that they fell within a complex legislative framework involving consultation with interested parties and encompassing planning, environmental and agricultural law. 47 As regards [OSCURATO:PERSONA]’s claim that it is not necessary to impose a lump sum payment on it, the [OSCURATO:PERSONA] points out that the [OSCURATO:PERSONA] of Justice has unlimited jurisdiction and that it can even go beyond what is suggested by the [OSCURATO:PERSONA], as demonstrated by the amount imposed on the [OSCURATO:PERSONA] in the judgment in [OSCURATO:PERSONA] C‑304/02 [OSCURATO:PERSONA] v France [2005] ECR I‑6263. 48 As regards the current economic difficulties faced by [OSCURATO:PERSONA], which, according to that [OSCURATO:PERSONA], justify a dispensation from the lump sum payment or the imposition of a reduced sum, the [OSCURATO:PERSONA] takes the view that there is no legal basis for [OSCURATO:PERSONA]’s argument in this regard and that, furthermore, in the case which gave rise to the judgment in [OSCURATO:PERSONA] C‑407/09 [OSCURATO:PERSONA] v Greece , invoked by [OSCURATO:PERSONA], the [OSCURATO:PERSONA] specifically rejected the defendant [OSCURATO:PERSONA] request that no lump sum payment be imposed on it, in the light of its serious economic problems. 49 [OSCURATO:PERSONA] recognises that it is essential to act on the basis of reliable, stable and definitive data. However, it states that such data relating to one full calendar year are subject to revisions during a twelve‑month period, with the result that, as regards the year 2010, the data are reliable only from 2012. [OSCURATO:PERSONA] states that, because of the current economic crisis, it has decided that it will henceforth update the factor ‘n’ for the different [OSCURATO:PERSONA] on an annual basis and that, in respect of [OSCURATO:PERSONA], the factor was reduced on 1 September 2011 from 2.84 to 2.71 in [OSCURATO:PERSONA] SEC (2011) 1024 final and, on 31 August 2012, from 2.71 to 2.60 in [OSCURATO:PERSONA] COM(2012) 6106. 50 However, the [OSCURATO:PERSONA] takes the view that it is appropriate to use the factor ‘n’ as calculated at the time when the application was lodged. Should the [OSCURATO:PERSONA] prefer to base its decision on the latest updated data, the [OSCURATO:PERSONA] can provide it with those data. 51 As regards the seriousness of the infringement, the [OSCURATO:PERSONA] considers that the recent adoption of the statutory instruments of 8 and 12 September 2011 in no way reduces the gravity of the infringement which persisted from 20 November 2008, the date of the judgment in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , until 8 September 2011, thus justifying the imposition of a lump sum payment under the conditions initially sought by that institution. However, the [OSCURATO:PERSONA] uses only a factor of 2 for the period between 8 September and 22 December 2011. 52 [OSCURATO:PERSONA] disputes [OSCURATO:PERSONA]’s contention that hedgerows have not been seriously affected by reason of the persistent incorrect transposition. [OSCURATO:PERSONA] line of argument, it submits, runs directly counter to paragraph 70 of the judgment in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] . In the light of paragraphs 79 to 82 of that judgment, the same is true of [OSCURATO:PERSONA]’s claim that the Planning and [OSCURATO:PERSONA] 2001 provided valuable safeguards. [OSCURATO:PERSONA], the [OSCURATO:PERSONA] is of the opinion that [OSCURATO:PERSONA] has provided no evidence whatsoever to substantiate its claim that 10 000 km of hedgerows have been replanted or rejuvenated and over 3 000 km maintained under agri-environmental schemes. Nor has [OSCURATO:PERSONA] provided evidence to support its assertion that over 4 500 farmers have signed up for species-rich grassland. 53 [OSCURATO:PERSONA] also points out that [OSCURATO:PERSONA] does not in any way contest the fact that the case-law on [OSCURATO:PERSONA] 85/337 was already clear prior to the judgment against it in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] or that it has been the subject of numerous sets of infringement proceedings in relation to the environment. [OSCURATO:PERSONA], that [OSCURATO:PERSONA] has not adduced any evidence to show that the degree of seriousness of its infringing behaviour is less than that held against the [OSCURATO:PERSONA] of Spain in the case which gave rise to the judgment in [OSCURATO:PERSONA] C‑278/01 [OSCURATO:PERSONA] v Spain . 54 The fact that [OSCURATO:PERSONA] engaged in a dialogue with the [OSCURATO:PERSONA] with a view to adopting the measures necessary to comply with the judgment in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] does not, according to that institution, shorten the duration of the infringement. 55 In its rejoinder, [OSCURATO:PERSONA] points out that the [OSCURATO:PERSONA] ultimately does not dispute that its transposing legislation, as amended on 8 September 2011, now meets the requirements of [OSCURATO:PERSONA] 85/337. According to that [OSCURATO:PERSONA], the [OSCURATO:PERSONA] focuses, in fact, on minor aspects which do not in any way affect the implementation of that directive. In that regard, [OSCURATO:PERSONA] disputes the [OSCURATO:PERSONA]’s reading of the requirements laid down by its national law. In particular, the [OSCURATO:PERSONA] wrongly claimed that S.I. No 456/11 would not be fully efficient until certain public notices had been published. The same is true as regards the scope of Regulation 19(2) of that statutory instrument, which, according to [OSCURATO:PERSONA], has the sole object of establishing that, where an area is referred to in a published public notice, an accused person cannot defend a prosecution by relying on the fact that he or she did not personally have knowledge of the relevant designation. 56 Referring in particular to Regulation 7(1)(e) of S.I. No 456/11, [OSCURATO:PERSONA] states that every monument listed for protection is the subject of either an individual or a public notice. As to the fact that the list of the sites to be protected will be revised from 2012 to 2015, this only demonstrates [OSCURATO:PERSONA]’s ongoing commitment to protection of its monuments and archaeological sites. [OSCURATO:PERSONA] does not see how such future developments would render ineffective the implementation in its territory of [OSCURATO:PERSONA] 85/337. 57 As regards the initial guidance document, [OSCURATO:PERSONA] rejects the [OSCURATO:PERSONA]’s criticisms, while at the same time indicating that it none the less made some adjustments in the context of the final document published on 22 December 2011 on the internet site of the Department of Agriculture. 58 With regard to the imposition of a lump sum payment, [OSCURATO:PERSONA] takes the view that this is not necessary. If, however, the [OSCURATO:PERSONA] decides to impose such a payment, that [OSCURATO:PERSONA] submits that the amount of that lump sum should be significantly less than that proposed by the [OSCURATO:PERSONA] and should be based on the multiplication of a standard flat-rate amount of EUR 210 per day by a seriousness coefficient of 3 and by an ‘n’ factor of 1. 59 In that regard, [OSCURATO:PERSONA] claims that, with a view to the adoption of an appropriate, proportionate and just measure, the [OSCURATO:PERSONA] should base its decision on the most up-to-date macro-economic data possible, given that [OSCURATO:PERSONA]’s ability to pay has undergone a dramatic change since 2008. 60 [OSCURATO:PERSONA], the [OSCURATO:PERSONA], in proposing henceforth a yearly revision, implicitly recognised in its [OSCURATO:PERSONA] SEC (2011) 1024 final that revision of the ‘n’ factor and other economic parameters for financial penalties every three years was insufficient, particularly in times of economic crisis. 61 In any event, [OSCURATO:PERSONA] disputes that the ‘n’ factor established in the 2010 [OSCURATO:PERSONA] can be used and claims that, if it is not possible for it to use more up-to-date data, the [OSCURATO:PERSONA] should base its decision on the ‘n’‑factor calculated in the [OSCURATO:PERSONA]’s latest communication, even though that communication was published after the date on which the present action was brought. 62 [OSCURATO:PERSONA] points out that a reduction in the amount of the lump sum sought by the [OSCURATO:PERSONA] is not liable to undermine the objective of deterrence since a reduced level of penalty in times of economic crisis will have just as dissuasive an effect on a [OSCURATO:PERSONA] as a higher level of penalty would in ‘normal’ economic conditions. 63 [OSCURATO:PERSONA] also maintains that a seriousness coefficient of 3 would be appropriate so far as it is concerned, in particular in the light of the condition of biodiversity and of the Irish countryside. [OSCURATO:PERSONA] submits several documents, in particular relating to its hedgerows and grasslands, in support of its claims. 64 Should the [OSCURATO:PERSONA] find that its failure to fulfil its obligations continued after 8 September 2011, which it disputes, [OSCURATO:PERSONA] calls on the [OSCURATO:PERSONA] to take the view that any failure is significantly less serious than that in issue during the period prior to 8 September 2011, especially since the failure alleged by the [OSCURATO:PERSONA] does not concern the adoption of the transposition measures as such but the way in which those measures were implemented in practice. Findings of the [OSCURATO:PERSONA] 65 The imposition of a lump sum under [OSCURATO:PERSONA] 260 TFEU is based essentially on the assessment of the effects on public and private interests of the failure of the [OSCURATO:PERSONA] concerned to comply with its obligations, in particular where the breach has persisted for a long period after the judgment initially establishing it was delivered (see [OSCURATO:PERSONA] C‑121/07 [OSCURATO:PERSONA] v France [2008] ECR I‑9159, paragraph 58). 66 It is for the [OSCURATO:PERSONA], in each case, in the light of the circumstances of the case before it and the degree of persuasion and deterrence which appears to it to be required, to determine the appropriate financial penalties, such as the imposition of a lump sum, in particular with a view to preventing similar infringements of [OSCURATO:PERSONA] law from recurring (see [OSCURATO:PERSONA] C‑121/07 [OSCURATO:PERSONA] v France , paragraph 59). 67 As to whether a lump sum payment should be imposed, it should also be pointed out that this must, in each individual case, depend on all the relevant factors pertaining to both the particular nature of the infringement established and the individual conduct of the [OSCURATO:PERSONA] involved in the procedure instigated pursuant to [OSCURATO:PERSONA] 260 TFEU (see [OSCURATO:PERSONA] C‑121/07 [OSCURATO:PERSONA] v France , paragraph 62). 68 In the present case, it is clear that the Irish authorities adopted the regulations necessary for compliance with the judgment in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] almost three years after the delivery of that judgment. 69 Next, it is true that, for the legitimate purpose of ensuring that the specific measures envisaged for compliance with that judgment would in fact meet the requirements of the judgment, the Irish authorities devised those measures in consultation with the [OSCURATO:PERSONA]. The fact nevertheless remains that the [OSCURATO:PERSONA] had already established a considerable body of case‑law on the interpretation of the provisions of [OSCURATO:PERSONA] 85/337 and has found on a number of occasions that [OSCURATO:PERSONA] has failed to fulfil its obligations under the directive. 70 Where a [OSCURATO:PERSONA] repeatedly engages in unlawful conduct in such a manner in a specific sector governed by [OSCURATO:PERSONA] rules, this may be an indication that effective prevention of future repetition of similar infringements of [OSCURATO:PERSONA] law may require the adoption of a dissuasive measure, such as a lump sum payment (see [OSCURATO:PERSONA] C‑121/07 [OSCURATO:PERSONA] v France , paragraph 69). 71 As regards the argument that political circumstances delayed the adoption of the measures in question, it is sufficient to recall that a [OSCURATO:PERSONA] cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under [OSCURATO:PERSONA] law (see [OSCURATO:PERSONA] C‑407/09 [OSCURATO:PERSONA] v Greece , paragraph 36 and the case‑law cited). 72 As regards the seriousness of the infringement, where failure to comply with a judgment of the [OSCURATO:PERSONA] is likely to harm the environment, the protection of which is, indeed, one of the [OSCURATO:PERSONA] policy objectives, as is apparent from [OSCURATO:PERSONA] 191 TFEU, such a breach is of a particularly serious nature (see [OSCURATO:PERSONA] C‑121/07 [OSCURATO:PERSONA] v France , paragraph 77 and the case-law cited). 73 [OSCURATO:PERSONA] is the case in these proceedings, in which, inter alia, the definition of the new thresholds entered into force only on 8 September 2011, so that, at least up to that date, certain projects likely to have effects on the environment within the meaning of [OSCURATO:PERSONA] 85/337 may have been implemented without any prior environmental impact assessment, in breach of the judgment in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and, in particular, of the finding at paragraph 85 of that judgment. 74 [OSCURATO:PERSONA] said, as regards the period between 8 September 2011 and 22 December 2011, it is clear that the infringement of which the [OSCURATO:PERSONA] accuses [OSCURATO:PERSONA] is less serious. Moreover, while it is true that [OSCURATO:PERSONA] adopted measures intended to address the [OSCURATO:PERSONA]’s objections, that institution has been not able to identify specific instances in which landowners had not been made sufficiently aware of the extent of their obligations and had, as a result, undertaken projects likely to have significant effects on the environment, in particular in sensitive areas and those forming part of the [OSCURATO:PERSONA], without being made subject to a procedure for the assessment of such effects, as required by [OSCURATO:PERSONA] 85/337. On that point, the defendant [OSCURATO:PERSONA] claimed, without being contradicted by the [OSCURATO:PERSONA], that 21 requests for assessment in the light of the requirements of [OSCURATO:PERSONA] 85/337 were submitted in [OSCURATO:PERSONA] between 2 October and the end of December 2011. In those circumstances, it must be held that the [OSCURATO:PERSONA] has failed to show that the measures transposing the directive were not implemented effectively. 75 In the light of all the foregoing circumstances, the [OSCURATO:PERSONA] considers that the imposition on [OSCURATO:PERSONA] of the payment of a single global lump sum is justified. 76 As regards the amount of that lump sum, it should be noted, first, that if the [OSCURATO:PERSONA] decides to impose a lump sum payment, it must, in exercising its discretion, do so in a manner that is, on the one hand, appropriate to the circumstances and, on the other, proportionate both to the breach that has been established and the ability to pay of the [OSCURATO:PERSONA] concerned (see [OSCURATO:PERSONA] C‑568/07 [OSCURATO:PERSONA] v Greece [2009] ECR I‑4505, paragraph 47 and the case-law cited). 77 [OSCURATO:PERSONA] the [OSCURATO:PERSONA]’s suggestions are a useful point of reference, they cannot in any event bind the [OSCURATO:PERSONA]. Similarly, while guidelines such as those in the notices of the [OSCURATO:PERSONA] help to ensure that the [OSCURATO:PERSONA] acts in a manner which is transparent, foreseeable and consistent with legal certainty, they do not bind the [OSCURATO:PERSONA] (see, to that effect, [OSCURATO:PERSONA]109/08 [OSCURATO:PERSONA] v Greece [2009] ECR I‑4657, paragraph 27 and the case‑law cited). 78 In the present case, in addition to the considerations set out at paragraphs 68 to 74 above, account must be taken of [OSCURATO:PERSONA]’s ability to pay as it stands in the light of the latest economic data submitted for appraisal by the [OSCURATO:PERSONA] (see, to that effect, [OSCURATO:PERSONA] C‑407/09 [OSCURATO:PERSONA] v Greece , paragraph 42). Thus, it is necessary to take account of recent trends in inflation and the GDP of that [OSCURATO:PERSONA] at the time of the [OSCURATO:PERSONA]’s examination of the facts (see [OSCURATO:PERSONA] C‑610/10 [OSCURATO:PERSONA] v Spain , paragraph 131). 79 In the present case, those data, which were provided by [OSCURATO:PERSONA] and have not been substantively challenged by the [OSCURATO:PERSONA], indicate that that [OSCURATO:PERSONA] ability to pay has to a certain degree been diminished in the context of economic crisis. 80 In the light of all the foregoing considerations, the circumstances of the case are fairly assessed by setting the amount of the lump sum which [OSCURATO:PERSONA] will have to pay, under [OSCURATO:PERSONA] 260 TFEU, at EUR 1 500 000. 81 [OSCURATO:PERSONA] must, therefore, be ordered to pay to the [OSCURATO:PERSONA], into the account ‘[OSCURATO:PERSONA] own resources’, a lump sum of EUR 1 500 000 million. Costs 82 [OSCURATO:PERSONA] 138(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. Since the [OSCURATO:PERSONA] has applied for costs and [OSCURATO:PERSONA] has been unsuccessful, the latter must be ordered to pay the costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Declares that, by failing to take the measures necessary to comply with the judgment of 20 November 2008 in [OSCURATO:PERSONA] C‑66/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 260 TFEU. 2. [OSCURATO:PERSONA] to pay to the [OSCURATO:PERSONA], into the account ‘[OSCURATO:PERSONA] own resources’, a lump sum of EUR 1 500 000. 3. [OSCURATO:PERSONA] to pay the costs. [Signatures] * Language of the case: English.