Short answer
A Member State found to have infringed EU law must take the measures necessary to comply with the Court of Justice judgment. If the European Commission considers that it has not done so, the Commission may give the State an opportunity to submit observations and bring a second action under Article 260(2) TFEU. It proposes a lump sum or periodic penalty, but the Court decides whether to impose either or both and fixes the amount.
The two sanctions do different work. A lump sum addresses the persistence and effects of non-compliance before the second judgment and helps deter repetition. A periodic penalty—often expressed as an amount per day—pressures the State to comply after that judgment. It normally applies only if the breach is still continuing when the Court examines the facts. The Court assesses seriousness, duration, ability to pay, effects on public and private interests, and the urgency of compliance. Commission calculation methods are useful reference points, not a tariff binding the Court.
What follows from the first infringement judgment?
The first judgment, usually delivered in an action under Article 258 TFEU, declares that the Member State failed to fulfil an EU obligation. Article 260(1) then creates the duty to correct that failure:
“If the Court of Justice of the European Union finds that a Member State has failed to fulfil an obligation under the Treaties, the State shall be required to take the necessary measures to comply with the judgment of the Court.” —
What counts as compliance depends on the operative part and reasoning of the first judgment. The required measures must correct the proven infringement; cosmetic action or an incomplete plan is not necessarily enough.
If the Commission considers the required measures have not been taken, Article 260(2) allows it to return to the Court after giving the State an opportunity to submit observations. The Commission must specify the lump sum or penalty payment it considers appropriate. The second action is therefore about whether the first judgment has been implemented, not an opportunity to relitigate the original infringement.
There is a separate shortcut in Article 260(3) for failure to notify measures transposing a legislative directive. That procedure can attach a financial sanction to the first Article 258 action.
Why can the Court impose two different payments?
The Court established in Commission v France, Case C-304/02, that a lump sum and a periodic penalty may be imposed together. Although that judgment applied Article 228 EC, the predecessor of Article 260 TFEU, its explanation remains central to the present procedure:
“While the imposition of a penalty payment seems particularly suited to inducing a Member State to put an end as soon as possible to a breach of obligations which, in the absence of such a measure, would tend to persist, the imposition of a lump sum is based more on assessment of the effects on public and private interests of the failure of the Member State concerned to comply with its obligations, in particular where the breach has persisted for a long period since the judgment which initially established it.” —
The distinction is practical. A periodic payment is forward-looking and coercive: continuing delay costs more. A lump sum looks to the accumulated non-compliance and deterrence. A State that completes compliance before the Court examines the second action may avoid a periodic payment because there is no continuing breach to coerce, while its earlier prolonged failure can still justify a lump sum.
How does the Court decide the amount?
The Commission presents a proposed amount using the method in its communications. That method promotes consistent Commission practice by combining a standard amount with factors reflecting the infringement and the Member State. But the judicial decision is independent. In Commission v Greece, Case C-51/20, the Court said:
“The Commission’s proposals regarding the periodic penalty payment cannot bind the Court and are merely a useful point of reference. Similarly, guidelines such as those set out in the Commission’s communications are not binding on the Court but rather contribute to ensuring that the Commission’s own actions are transparent, foreseeable and consistent with legal certainty when that institution makes proposals to the Court.” —
For a periodic payment, the Court's recurring criteria are:
- Seriousness. This includes the importance of the EU rule, the scale of remaining non-compliance, its effects on public and private interests, and any risk to matters such as health, the environment, competition, or fundamental freedoms. Partial compliance and cooperation can matter, but do not erase a continuing breach.
- Duration. The Court considers how long non-compliance has persisted. For the periodic payment, duration is assessed by reference to when the Court examines the facts, not merely when the Commission filed the second action.
- Ability to pay. The sanction must be proportionate yet dissuasive. Recent developments in the Member State's gross domestic product are relevant. In C-51/20, the Court treated GDP as the predominant factor and held that institutional weight in the EU was not essential to deterrence.
- Urgency and measurability. The payment interval should match how compliance can realistically be checked. A daily amount is common, but the Court may choose six-monthly or another periodic assessment where results cannot sensibly be measured each day.
For the lump sum, the Court considers all relevant circumstances, particularly seriousness, the time elapsed since the first judgment, the State's conduct, and the need to prevent similar infringements. There is no automatic lump sum simply because a second action is filed, and no fixed schedule makes one case's amount the starting price for another.
When does a daily penalty start and stop?
A periodic penalty ordinarily runs from the second judgment until full compliance. Its amount and rhythm are set in the operative part, which controls the payment obligation. The Court can make the amount constant, link it to units of non-compliance, or select a longer assessment period when progress must be evaluated as a whole.
Commission v Slovakia, Case C-626/16, shows a straightforward daily model. The remaining failure concerned the closure of a landfill, with consequences for the environment and human health. The Court also considered the localised nature of the breach, partial measures, cooperation, about five years of delay, and the information available about ability to pay. It concluded:
“Having regard to all of the circumstances in the present case, the Court considers it appropriate to impose a penalty payment of EUR 5 000 per day to elicit compliance with the judgment in Case C-331/11.” —
The operative part required EUR 5,000 for each day of delay from the second judgment until the first judgment had been complied with in full. The Court also imposed a EUR 1 million lump sum. Those figures illustrate the two functions; they are not general rates for environmental cases.
By contrast, C-51/20 used a six-monthly payment because compliance involved complex State-aid recovery operations whose progress was better assessed over time. The label “daily penalty” should therefore not obscure the Court's power to design a payment that creates effective pressure and permits reliable verification.
A more recent example is Commission v Italy, Case C-515/23, decided on 27 March 2025. Italy had still not fully complied with an earlier judgment concerning urban wastewater treatment. The Court imposed a EUR 10 million lump sum and set a sliding-scale penalty at EUR 75,000 per day, payable as EUR 13,687,500 for each six-month period of delay. The amount for each period was to be reduced in proportion to the population equivalents brought into compliance. The judgment illustrates both cumulative sanctions and a measurement method adapted to partial, verifiable progress.
What facts determine the likely result?
An Article 260 assessment should answer several concrete questions:
- What exactly did the first judgment require when its operative part is read with its reasons?
- Which measures had the State completed by the Commission's deadline and by the Court's examination of the facts?
- Is non-compliance still continuing, making coercion through a periodic payment useful?
- How serious are the remaining effects on EU objectives and public or private interests?
- How long has the breach persisted since the first judgment?
- Can compliance be measured daily, by affected unit, or only over a longer reporting period?
- What do current economic data show about a proportionate but dissuasive amount?
Conclusion
Failure to comply with a Court of Justice judgment triggers a distinct enforcement stage under Article 260(2) TFEU. After allowing observations, the Commission may return to the Court and propose financial sanctions. The Court independently decides whether non-compliance persists and whether to impose a lump sum, a periodic payment, or both.
The lump sum addresses the duration, effects, and deterrence of past non-compliance. The periodic payment creates pressure to complete compliance after the second judgment and lasts only as the operative part provides. Seriousness, duration, ability to pay, public and private effects, urgency, and the practical measurement of compliance determine the form and amount; no previous award operates as a fixed tariff.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.