Commission v Luxembourg (Directive lanceurs d'alerte) (Failure of a Member State to fulfil obligations - Protection of persons who report breaches of Union law - Judgment) [2025] EUECJ C-150/23 (06 March 2025)
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Commission v Luxembourg (Directive lanceurs d'alerte) (Failure of a Member State to fulfil obligations - Protection of persons who report breaches of Union law - Judgment) [2025] EUECJ C-150/23 (06 March 2025)
URL: http://www.bailii.org/eu/cases/EUECJ/2025/C15023.html Cite as:
ECLI:EU:C:2025:146,
EU:C:2025:146,
[2025] EUECJ C-150/23
( Failure of a Member State to fulfil obligations - Article 258 TFEU - Protection of persons who report breaches of Union law - Directive (EU) 2019/1937 - Article 26(1) and (3) - Failure to transpose and communicate transposition measures - Article 260(3) TFEU - Application for the imposition of a lump sum - Criteria for establishing the amount of the penalty - Automatic application of a coefficient for seriousness )
In Case C‑150/23,
ACTION for failure to fulfil obligations under Article 258 and Article 260(3) TFEU, brought on 13 March 2023,
European Commission, represented by J. Baquero Cruz, F. Blanc and T. Materne, acting as Agents,
applicant,
v
Grand Duchy of Luxembourg, represented by A. Germeaux and T. Schell, acting as Agents,
defendant,
THE COURT (Sixth Chamber),
composed of T. von Danwitz, Vice-President of the Court, acting as President of the Sixth Chamber, A. Kumin and I. Ziemele (Rapporteur), Judges,
Advocate General: N. Emiliou,
Registrar: A. Calot Escobar,
having regard to the written procedure,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 By its action, the European Commission claims that the Court should:
– declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (OJ 2019 L 305, p. 17), and by failing to communicate those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 26(1) and (3) of that directive;
– order the Grand Duchy of Luxembourg to pay the Commission a lump sum corresponding to the higher of the following two amounts:
– a daily flat-rate amount of EUR 900 multiplied by the number of days between the day after the expiry of the deadline for transposition fixed in Directive 2019/1937 and the day on which the infringement is regularised or, failing regularisation, the day on which the judgment in the present case is delivered;
– a minimum flat-rate amount of EUR 252 000;
– in the event that the failure to fulfil obligations established in the first indent persists until the date of delivery of the judgment in the present case, order the Grand Duchy of Luxembourg to pay to the Commission a penalty payment of EUR 3 150 per day of delay from the date of delivery of that judgment until the date on which the Grand Duchy of Luxembourg fulfils its obligations under Directive 2019/1937; and
– order the Grand Duchy of Luxembourg to pay the costs.
‘… potential whistleblowers are often discouraged from reporting their concerns or suspicions for fear of retaliation. In this context, the importance of providing balanced and effective whistleblower protection is increasingly acknowledged at both [European] Union and international level.’
‘The purpose of this Directive is to enhance the enforcement of Union law and policies in specific areas by laying down common minimum standards providing for a high level of protection of persons reporting breaches of Union law.’
‘1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 17 December 2021.
…
3. When Member States adopt the provisions referred to in paragraphs 1 and 2, those provisions shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made. They shall forthwith communicate to the Commission the text of those provisions.’
The 2023 Communication
5 Communication 2023/C 2/01 from the Commission, entitled ‘Financial sanctions in infringement proceedings’ (OJ 2023 C 2, p. 1; ‘the 2023 Communication’), devotes points 3 and 4 thereof to the ‘penalty payment’ and the ‘lump sum payment’, respectively.
6 Point 3.2 of that communication, which concerns the application of the coefficient for seriousness when calculating the daily penalty payment, provides:
‘An infringement concerning a … failure to notify measures transposing a directive adopted under a legislative procedure is always considered serious. To adapt the amount of the penalty to the specific circumstances of the case, the Commission determines the coefficient for seriousness on the basis of two parameters: the importance of the Union rules breached or not transposed and the effects of the infringement on general and particular interests.
‘For actions brought under Article 260(3) TFEU, the Commission systematically applies a coefficient for seriousness of 10 in case of a complete failure to notify transposition measures. In a Union based on the respect of the rule of law, all legislative directives are to be considered of equal importance and require complete transposition by the Member States within the deadlines that they set.
In the case of a partial failure to notify transposition measures, the importance of the transposition gap is to be considered when setting the coefficient for seriousness which is lower than 10. In addition, the effects of the infringement on general and particular interests may be taken into account …’
8 Under point 3.3 of the 2023 Communication, entitled ‘Application of the coefficient for duration’:
‘…
The coefficient for duration is expressed as a multiplier of between 1 and 3. It is calculated at a rate of [0.10] per month from the date of the first judgment or from the day following the expiry of the deadline for transposition of the directive in question.
…’
9 Point 3.4 of that communication, entitled ‘Member State’s capacity to pay’, provides:
‘…
The level of sanction required to serve as a deterrent will vary according to Member States’ capacity to pay. This deterrent effect is reflected in the n factor. It is defined as a weighted geometric average of the gross domestic product (GDP) of the Member State concerned compared to the average of the Member States’ GDPs, with a weight of two, and of the population of the Member State concerned, compared to the average of Member States’ populations, with a weight of one. This represents the capacity to pay of the Member State concerned in relation to the other Member States’ capacity to pay:
…
The Commission has decided to revise its method for calculating the n factor, which now predominantly relies on Member States’ GDP and secondarily on their population as a demographic criterion allowing a reasonable deviation between the various Member States to be maintained. Taking into account Member States’ population for one third of the calculation of the n factor reduces to a reasonable degree the variation of Member States’ n factors, as compared to a calculation based solely on Member States’ GDP. It also adds an element of stability in the calculation of the n factor, since population is unlikely to vary significantly on an annual basis. In contrast, a Member State’s GDP might experience higher annual fluctuations, in particular in periods of economic crisis. At the same time, since the Member State’s GDP still accounts for two thirds of the calculation, it remains the predominant factor for the purposes of assessing its capacity to pay.
…’
10 Point 4.2 of the said communication sets out the calculation method for the lump sum as follows:
‘The lump sum is calculated in a manner broadly similar to the method for calculating the penalty payment, that is:
– multiplying a flat-rate amount by a coefficient for seriousness,
– multiplying the result by the n factor,
– multiplying the result by the number of days the infringement persists …
…’
11 Point 4.2.1 of the same communication provides:
‘To calculate the lump sum, the daily amount is to be multiplied by the number of days the infringement persists. The latter is defined as follows:
…
– for actions brought under Article 260(3) TFEU, this is the number of days between the day after the expiry of the deadline for transposition set out in the directive at issue and the date the infringement comes to an end, or, failing compliance, the date of the delivery of the judgment under Article 260 TFEU.
…’
12 According to point 4.2.2 of the 2023 Communication:
‘For the calculation of the lump sum, the Commission applies the same coefficient for seriousness and the same fixed n factor as for the calculation of the penalty payment …
The flat-rate amount for the lump sum is lower than for penalty payments. …
The flat-rate amount applicable for the lump sum is set out in point 2 of … Annex I.
…’
13 Annex I to that communication, entitled ‘Data used for determining financial sanctions proposed to the Court’, provides, in point 2 thereof, that the flat-rate amount for the lump sum payment mentioned in point 4.2.2 of that communication is fixed at EUR 1 000 per day, that is one third of the flat-rate for penalty payments, and, in point 3 thereof, that the ‘n’ factor for the Grand Duchy of Luxembourg is set at 0.09. In point 5 of that Annex I, it is stated that the minimum lump sum fixed for the Grand Duchy of Luxembourg amounts to EUR 252 000.
The pre-litigation procedure and the procedure before the Court
14 On 21 January 2022, the Commission sent a letter of formal notice to the Grand Duchy of Luxembourg, criticising it for having failed to communicate to it the laws, regulations or administrative provisions necessary to comply with Directive 2019/1937, the transposition deadline of which had expired on 17 December 2021. In its reply of 15 March 2022, the Grand Duchy of Luxembourg informed the Commission that those provisions were in the course of being adopted.
15 With no subsequent communication relating to the transposition of Directive 2019/1937 having been sent, the Commission, on 15 July 2022, addressed a reasoned opinion to the Grand Duchy of Luxembourg, calling on it to comply with its obligations under that directive within a period of two months of receipt of that opinion.
16 In its reply of 25 August 2022, the Grand Duchy of Luxembourg stated that the Conseil d’État (Council of State, Luxembourg), having been informed of the urgency of that file, would deliver an opinion on draft Law No 7945 transposing that directive, such that legislative work would resume in September 2022.
17 Taking the view that that Member State had still not complied with its obligations, the Commission decided, on 13 March 2023, to bring the present action before the Court.
18 On 17 May 2023, the Grand Duchy of Luxembourg notified to the Commission the Law of 16 May 2023 transposing Council Directive (EU) 2019/1937 of 23 October 2019 on the protection of persons who report breaches of Union law (Mémorial A No 332 of 17 May 2023; ‘the Law of 16 May 2023’), entered into force on 21 May 2023.
19 By document of 28 September 2023, the Commission informed the Court that, following contacts with the Luxembourg authorities, the transposition of Directive 2019/1937 by the Grand Duchy of Luxembourg could be deemed to have been completed on 21 May 2023. Accordingly, that institution, first, partially abandoned its action, withdrawing its application for the imposition of a penalty payment, and, second, modified its head of claim seeking an order that that Member State pay a lump sum, claiming, on that basis, an amount of EUR 467 100.
20 By decision of the President of the Court of 19 December 2023, the proceedings were stayed pending delivery of the judgment in Case C‑147/23. Following the delivery of the judgment of 25 April 2024, Commission v Poland (Whistleblowers directive) (C‑147/23, EU:C:2024:346), the proceedings in the present case were resumed by decision of the President of the Court of the same day.
The action
Failure to fulfil obligations under Article 258 TFEU
Arguments of the parties
21 The Commission points out that, in accordance with the third paragraph of Article 288 TFEU, Member States are required to adopt the provisions necessary to transpose directives into their national legal system, within the periods laid down in those directives, and to communicate those provisions to it immediately.
22 That institution explains that the question whether a Member State has failed to fulfil those obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion which the Commission addressed to that Member State.
23 In the case at hand, the Grand Duchy of Luxembourg had not adopted the laws, regulations and administrative provisions necessary to transpose Directive 2019/1937 or inform the Commission of their adoption before the expiry of the period laid down in the reasoned opinion of 15 July 2022.
24 The Grand Duchy of Luxembourg acknowledges that it had not adopted those provisions within the period prescribed.
25 That Member State states that the Law of 16 May 2023, which was notified to the Commission on 17 May 2023 and entered into force on 21 May 2023, enabled Directive 2019/1937 to be fully transposed on that date.
26 The Commission recalls, in that regard, that the fact that the Member State concerned complies with its obligations during the contentious procedure is not relevant to a finding that that Member State has failed to fulfil its obligations, that finding having to be assessed in the light of the situation of that Member State on the expiry of the period prescribed in the reasoned opinion.
Findings of the Court
27 Under Article 26(1) of Directive 2019/1937, Member States were to bring into force, by 17 December 2021, the laws, regulations and administrative provisions necessary to comply with that directive. In addition, Article 26(3) of that directive stipulates that, when Member States adopt those measures, they are to contain a reference to that directive or be accompanied by such a reference at the time of their official publication. Moreover, pursuant to that Article 26(3), it fell to the Member States to communicate to the Commission the text of the said national provisions.
28 In accordance with settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion, the Court being unable to take account of any subsequent changes (judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraph 28 and the case-law cited).
29 In the case at hand, after having found that the Grand Duchy of Luxembourg had not communicated to it the provisions necessary to transpose Directive 2019/1937, the Commission sent that Member State, on 15 July 2022, a reasoned opinion, calling on it to comply with the obligations referred to therein within a period of two months of receipt of the opinion.
30 However, as is apparent from the defence and the rejoinder lodged by the Grand Duchy of Luxembourg in the present proceedings, on the expiry of that period, that Member State had not adopted the laws, regulations and administrative provisions necessary to comply with Directive 2019/1937 and, therefore, nor had it communicated those provisions to the Commission.
31 It must therefore be held that, by having failed, on the expiry of the period prescribed in the reasoned opinion of 15 July 2022, to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2019/1937 and, therefore, by having failed to communicate them to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 26(1) and (3) of that directive.
The application submitted under Article 260(3) TFEU
Arguments of the parties
32 With a view to fixing the amount of the lump sum, the Commission relies on the general principles referred to in point 2 of the 2023 Communication and on the method of calculation set out in points 3 and 4 of that communication. In particular, that institution states that the amount of the lump sum must be determined on the basis of the following fundamental criteria: the seriousness of the infringement, its duration and the need to ensure that the penalty has a deterrent effect in order to prevent repeat infringements.
33 With regard, in the first place, to the seriousness of the infringement, the Commission points out that the applicable coefficient under the 2023 Communication is between a minimum of 1 and a maximum of 20. That institution explains that, in accordance with point 3.2.2 of that communication, it systematically applies a coefficient for seriousness of 10 in the case of a complete failure to notify the provisions enabling a directive to be transposed, as any failure to transpose a directive or to notify those provisions is of the same degree of seriousness, regardless of the nature of the provisions of the directive concerned.
34 In the second place, as regards the duration of the infringement, the Commission explains that that equates, as regards the calculation of the lump sum, to the number of days that the infringement persists. That duration is calculated in accordance with point 4.2.1 of the 2023 Communication and corresponds, for actions brought under Article 260(3) TFEU, to the number of days between the day following the expiry of the deadline for transposition of the directive in question and the day on which the infringement ceased or, failing regularisation, the date of delivery of the judgment under Article 260 TFEU.
35 As for, in the third place, the criterion relating to the need to ensure that the penalty has a deterrent effect taking into consideration the capacity of the Member State concerned to pay, the Commission states that that criterion is expressed by the ‘n’ factor set for each Member State in point 3 of Annex I to the 2023 Communication. It is calculated on the basis of the ratio between the GDP of the State concerned and the national average GDP of the European Union multiplied by the ratio between the population of that State and the national average population of the European Union. The first ratio is assigned a two-thirds weighting, whereas the second is assigned a one-third weighting. Pursuant to that point 3, the ‘n’ factor of the Grand Duchy of Luxembourg is 0.09.
36 Accordingly, the Commission proposes, pursuant to point 4.2 of the 2023 Communication, using a coefficient for seriousness of 10 and applying the ‘n’ factor of 0.09. The product of those two elements should be multiplied by the flat-rate amount of the lump sum fixed in point 2 of Annex I to that communication, that is to say, EUR 1 000, which amounts to a sum of EUR 900, to be multiplied by the number of days that the infringement has persisted, in accordance with point 4.2.1 of the said communication. The Commission states that the payment of the lump sum resulting from that calculation must be imposed on the Grand Duchy of Luxembourg provided that it is greater than EUR 252 000, the amount of the minimum lump sum fixed for that Member State under point 5 of Annex I to the 2023 Communication.
37 In its defence, the Grand Duchy of Luxembourg emphasises that the systematic application of a coefficient for seriousness of 10 precludes any consideration of circumstances specific to the legislative process of the Member State concerned.
38 First, the Law of 16 May 2023 not only transposes Directive 2019/1937, but also constitutes a broader legislative framework encompassing reports of breaches of national law. That widening of the scope of the protection provided for by Directive 2019/1937 explains the delay in transposing that directive, which should be taken into account when setting the coefficient for seriousness. Second, the Grand Duchy of Luxembourg has shown transparency and speed in its cooperation with the Commission, which also constitutes a mitigating circumstance that should lead to a reduction in the coefficient for seriousness.
39 For those reasons, the Grand Duchy of Luxembourg requests a reduction in the daily flat-rate amount.
40 In its additional claims of 28 September 2023, the Commission proposes, following the notification by the Grand Duchy of Luxembourg of the entry into force, on 21 May 2023, of the Law of 16 May 2023, taking the view that the number of days that the infringement persisted is between 18 December 2021, namely the day following the expiry of the deadline for transposition of Directive 2019/1937, and 20 May 2023, namely the day before the entry into force of the law transposing that directive. It follows that the proposed daily amount of EUR 900 (10 x 0.09 x 1 000) is to be multiplied by the number of days that the infringement persisted, namely 519 days. The amount of the lump sum sought is therefore EUR 467 100.
Findings of the Court
41 The first subparagraph of Article 260(3) TFEU provides that when the Commission brings a case before the Court pursuant to Article 258 TFEU on the ground that the Member State concerned has failed to fulfil its obligation to notify provisions necessary to transpose a directive adopted under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. In accordance with the second subparagraph of Article 260(3) TFEU, if the Court finds that there is an infringement it may impose a lump sum or penalty payment on the Member State concerned not exceeding the amount specified by the Commission. The payment obligation is to take effect on the date set by the Court in its judgment.
42 Since, as is apparent from paragraph 31 above, it is established that, on the expiry of the period laid down in the reasoned opinion of 15 July 2022, the Grand Duchy of Luxembourg had neither adopted nor, therefore, communicated to the Commission the laws, regulations and administrative provisions necessary to transpose the provisions of Directive 2019/1937 into its domestic law, the failure thus established falls within the scope of Article 260(3) TFEU.
43 Furthermore, it should be recalled that the objective pursued by the system set out in Article 260(3) TFEU is not only to induce Member States 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, but also to simplify and speed up the procedure for imposing financial penalties for failures to comply with the obligation to notify national provisions transposing a directive adopted through a legislative procedure (judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraph 57 and the case-law cited).
44 In order to achieve that objective, Article 260(3) TFEU provides for the imposition, inter alia, of a lump sum as a financial penalty.
45 The imposition of a lump sum is based 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 (see, to that effect, judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraph 59 and the case-law cited).
46 In that regard, the Commission states reasons for the nature and amount of the financial penalty sought, taking into account the guidelines which it has adopted, such as those in its communications which, although not binding on the Court, contribute to ensuring that the action brought by the Commission is transparent, foreseeable and consistent with legal certainty (judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraph 60 and the case-law cited).
47 As regards whether it is appropriate for a lump sum to be imposed, in each case, it is for the Court to determine, in the light of the circumstances of the case before it and according to the degree of persuasion and deterrence which appears to it to be required, the financial penalties that are appropriate, in particular, for preventing the recurrence of similar infringements of EU law (judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraph 62 and the case-law cited).
48 In the case at hand, all the legal and factual elements surrounding the breach of obligations established are an indication that if the future repetition of similar infringements of EU law is to be effectively prevented, a dissuasive measure must be adopted, such as the imposition of a lump sum.
49 As regards the calculation of the amount of that lump sum, it should be recalled that, under Article 260(3) TFEU, the Court alone has the power to impose a financial penalty on a Member State. However, in the context of proceedings brought on the basis of that provision, the Court has only a limited power to assess, since, where it finds that there is a failure to fulfil obligations, the Commission’s proposals are binding on it as to the nature of the financial penalty which the Court may impose and the maximum amount of the penalty which it may set (judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraph 67 and the case-law cited).
50 In exercising its discretion in the matter, as delimited by the Commission’s proposals, it is for the Court, as has been recalled in paragraph 47 above, to fix the amount of the lump sum which a Member State may be ordered to pay pursuant to Article 260(3) TFEU, in an amount appropriate to the circumstances and proportionate to the failure to fulfil obligations. Relevant considerations in that respect include factors such as the seriousness of the failure to fulfil obligations, the length of time for which the failure has persisted and the relevant Member State’s ability to pay (judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraphs 68 and 87 and the case-law cited).
51 It should likewise be remembered that, in the context of that discretion, guidelines such as communications from the Commission 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 (judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraph 69 and the case-law cited).
52 In the present case, the Commission relied on the 2023 Communication to justify its application seeking that the Grand Duchy of Luxembourg be ordered to pay a lump sum, as well as to fix the amount thereof.
53 In the first place, as regards the seriousness of the failure to fulfil obligations established, it follows from point 3.2 of the 2023 Communication that, according to the Commission, the failure to notify the provisions enabling the transposition of a directive adopted under a legislative procedure is always considered to be serious. Accordingly, that failure justifies the automatic application of a coefficient for seriousness of 10.
54 The Grand Duchy of Luxembourg contests the level of that coefficient and the automatic nature of its application in the circumstances of the failure established.
55 In that regard, it should be borne in mind that the obligation to adopt provisions for the purposes of ensuring that a directive is transposed in full and the obligation to notify them to the Commission are fundamental obligations incumbent on the Member States in order to ensure optimal effectiveness of EU law and that failure to fulfil those obligations must, therefore, be regarded as definitely serious (judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraph 72 and the case-law cited).
56 In the present case, it must be observed that Directive 2019/1937 is a crucial instrument of EU law in that it lays down, pursuant to Article 1 thereof, read in conjunction with recital 1 thereof, common minimum standards providing for a high level of balanced and effective protection of persons reporting breaches of EU law in areas in which such breaches are likely to be particularly harmful to the general interest. By establishing a system for the protection of persons reporting breaches of EU law in a work-related context, that directive contributes to preventing harm to the public interest, in particularly sensitive areas, such as public procurement, the prevention of money laundering and terrorist financing, and the protection of the environment or of the financial interests of the European Union. Thus, the provisions of the directive provide for the obligation, for entities in both the public and private sectors, to establish internal reporting channels and procedures for receiving reports and their follow-up, whilst safeguarding the rights of the persons reporting breaches of EU law and the conditions under which those persons can qualify for the protection laid down therein (judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraph 73).
57 The non-transposition of the provisions of Directive 2019/1937 within the period prescribed necessarily undermines EU law and its uniform and effective application, since breaches of EU law are unlikely to be reported if the persons with knowledge of such breaches are not protected against any retaliation (see, to that effect, judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraph 74).
58 That said, the amount of the financial penalties imposed on a Member State pursuant to Article 260(3) TFEU must be appropriate to the circumstances and proportionate to the failure to fulfil obligations (judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraph 75), as has been recalled in paragraph 50 above.
59 It is for that reason that the Court has held that the automatic application of the same coefficient for seriousness in all cases in which a directive is not fully transposed and, therefore, the measures transposing that directive are not communicated necessarily precludes the amount of the financial penalties from being tailored to the circumstances characterising the failure to fulfil obligations and proportionate penalties from being imposed (judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraph 76).
60 In that regard, the Court has specified that, by presuming that a failure to comply with the obligation to notify the transposition measures for a directive must be regarded as being of the same degree of seriousness regardless of the directive concerned, the Commission is unable to tailor the financial penalties according to the consequences of the failure to comply with that obligation on private and public interests, as is provided for in point 3.2.2 of the 2023 Communication (judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraph 77).
61 In the present case, the failure to comply with the obligation to adopt the laws, regulations and administrative provisions necessary to transpose Directive 2019/1937 is particularly serious since, as has been emphasised in paragraph 56 above, the provisions of that directive, in so far as they are intended to protect the persons who report breaches of EU law in the areas covered by the directive, contribute to ensuring the uniform and effective application of EU law (judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraph 79).
62 In terms of the mitigating circumstances invoked by the Grand Duchy of Luxembourg, it should be noted, first, that the adoption of legislation covering a scope going beyond that of Directive 2019/1937 cannot have an impact on the assessment of the seriousness of the infringement, since it is a deliberate choice by the Member State which, in the present case, was made to the detriment of a transposition of that directive within the period prescribed.
63 Second, in so far as the Grand Duchy of Luxembourg contends that it has shown transparency and speed in its cooperation with the Commission, it must be recalled that the duty of sincere cooperation with the Commission, as laid down in Article 4(3) TEU, means that every Member State is under a duty to facilitate the Commission’s accomplishment of its task consisting, in accordance with Article 17 TEU, in ensuring, as guardian of the Treaties, the application of EU law under the control of the Court of Justice. Accordingly, only cooperation with the Commission characterised by steps showing an intention to comply within the shortest time possible with the obligations arising from a directive may be taken into account as a mitigating circumstance in the context of assessing the seriousness of the infringement (judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraph 98 and the case-law cited).
64 In the present case, it must be held that the Grand Duchy of Luxembourg has not shown exemplary speed in taking 8 months from the expiry of the two-month period laid down, after its notification, in the reasoned opinion of 15 July 2022 and approximately 17 months from the expiry of the period laid down in Article 26(1) of Directive 2019/1937 to comply with its obligations under that directive.
65 In the second place, when assessing the duration of the infringement, it must be recalled that, as regards the beginning of the period which must be taken into account in order to fix the amount of the lump sum, the relevant date for evaluating the duration of the infringement at issue is not the date of expiry of the period laid down in the Commission’s reasoned opinion, but the date of expiry of the transposition deadline laid down in the directive in question (judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraph 80 and the case-law cited).
66 It is established, however, that the Grand Duchy of Luxembourg had not, on the expiry of the transposition deadline laid down in Article 26(1) of Directive 2019/1937, that is to say, on 17 December 2021, adopted the laws, regulations and administrative provisions necessary to ensure the transposition of that directive and, therefore, had likewise failed to communicate them to the Commission, contrary to what Article 26(3) of the said directive provides. It follows that the failure to fulfil obligations at issue, which ended only on 20 May 2023, with the entry into force of the Law of 16 May 2023, continued for almost one and a half years.
67 In the third place, as regards the ability to pay of the Member State at issue, it is clear from the case-law of the Court that, without prejudice to the possibility for the Commission to propose financial penalties which are based on multiple criteria, with a view, in particular, to allowing a reasonable gap between the various Member States to be maintained, it is necessary to rely on the GDP of that State as the predominant factor for the purpose of assessing its ability to pay and for the fixing of penalties that are sufficiently dissuasive and proportionate in order effectively to prevent a repeat of similar infringements of EU law in the future (judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraph 81 and the case-law cited).
68 In that regard, the Court has repeatedly held that it was necessary to take account of recent trends in the Member States’ GDP at the time of the Court’s examination of the facts (judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraph 82 and the case-law cited).
69 Here, the ‘n’ factor, which represents the capacity to pay of the Member State concerned as compared with the capacity to pay of the other Member States and is applied by the Commission in accordance with points 3.4 and 4.2 of the 2023 Communication, is defined as a weighted geometric average of the GDP of the Member State concerned, compared to the average of the Member States’ GDPs, accounting for two thirds of the calculation of the ‘n’ factor, and of the population of the Member State concerned, compared to the average of Member States’ populations, accounting for one third of the calculation of the ‘n’ factor, as is apparent from the equation set out in paragraph 9 above. The Commission justifies that method of calculating the ‘n’ factor both by reference to the objective of maintaining a reasonable gap between the ‘n’ factors of the Member States, as compared to a calculation based solely on Member States’ GDPs, and the objective of ensuring a degree of stability in the calculation of the ‘n’ factor, since population is unlikely to vary significantly on an annual basis (judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraph 83 and the case-law cited).
70 However, the Court has held that, when determining the capacity to pay of the Member State concerned, a demographic criterion cannot be taken into account in accordance with the detailed rules laid down in points 3.4 and 4.2 of the 2023 Communication as part of the method of calculating the ‘n’ factor (see, to that effect, judgment of 25 April 2024, Commission v Poland (Whistleblowers directive), C‑147/23, EU:C:2024:346, paragraphs 84 to 86).
71 Accordingly, in accordance with the case-law recalled in paragraph 67 above and in the absence of a relevant criterion put forward by the Commission to ensure stability of calculation and to maintain a reasonable gap between the ‘n’ factors of the Member States, it is by taking into account the average GDP of the Grand Duchy of Luxembourg over the last three years that the amount of the lump sum should be fixed.
72 In the light of those considerations and having regard to the discretion conferred on the Court by Article 260(3) TFEU, which provides that the Court cannot, in respect of the lump sum, fix an amount exceeding that specified by the Commission, the view must be taken that, in order effectively to prevent a repeat of infringements similar to that resulting from the infringement of Article 26(1) of Directive 2019/1937 and undermining the optimal effectiveness of EU law in the future, a lump sum must be imposed, the amount of which must be fixed at EUR 375 000.
Costs
73 Under Article 138(1) of the Rules of Procedure of the Court of Justice, 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 Commission has applied for costs and the Grand Duchy of Luxembourg has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the Commission.
On those grounds, the Court (Sixth Chamber) hereby:
1. Declares that, by having failed, on the expiry of the period laid down in the reasoned opinion of the European Commission of 15 July 2022, to adopt the laws, regulations and administrative provisions necessary to comply with Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law and, therefore, by having failed to communicate them to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 26(1) and (3) of that directive;
2. Orders the Grand Duchy of Luxembourg to pay to the European Commission a lump sum in the amount of EUR 375 000;
3. Orders the Grand Duchy of Luxembourg to bear its own costs and to pay those incurred by the European Commission.
