The judgment of 23 April 2015 of the Court of Justice in Case C-376/13 Commission v Bulgaria EU:C:2015:266 sheds interesting light on when the Court considers that an infringement of EU law persists even after the Member State in question has amended its legislation to bring it into compliance.

The chronology of the case is important.

In May 2011 the Commission started infringement proceedings against Bulgaria by sending it a letter of formal notice claiming that Bulgarian legalisation on TV broadcasting breached Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (Competition Directive), Directive 2002/20/EC of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) and Directive 2002/21/EC of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive).

The detail of the infringements need not detain us but in summary the Bulgarian authorities tendered out the right to broadcast digital TV nationally but had limited the number of broadcasters to two only, had excluded broadcasters who did not already broadcast in Bulgaria and had prohibited the digital broadcasters from setting up electronic transmission networks in Bulgaria.

Bulgaria submitted that the action was inadmissible on two grounds. Firstly, it had done all that was required to comply with the reasoned opinion by December 2011 and that it had undertaken to open the market for a third broadcaster. Secondly, it claimed that the Commission should, by virtue of the principle of loyal cooperation, indicate what steps remain to be taken to comply with EU law but had failed to do so in the reasoned opinion.

Nevertheless, on 26 March 2012 the Commission sent Bulgaria a reasoned opinion with a two month deadline to comply.  Bulgaria answered that it had complied with two of the claims of the Commission by modifying its legislation and by the fact that some provisions had not been applied since June 2009. It reiterated its promise to tender out the right for a a third broadcaster by 1 September 2003.

The Court disagreed with Bulgaria and held that the action was admissible (it also went on to find that Bulgaria was indeed in breach of the relevant directives but that need not detain us here).

The Court held that the infringement, even though Bulgaria had amended its legislation, continued to produce its effect at the expiry of the deadline set in the reasoned opinion.

The Court recalled its constant caselaw according to which the existence of an infringement must be determined by reference to the situation in the Member State in question at the expiry of the deadline fixed in the reasoned opinion and that no account should be taken of changes which occurred after that date (Judgment in Commission v Sweden C-185/09, EU:C:2010:59, paragraph 9).

In this case, the Court noted, Bulgaria had organised tenders to grant licences for broadcasting in 2009 on the basis of the legislation which the Commission claimed breached EU law. Consequently, it was necessary to examine whether that legislation continued to produce effects at the expiry of the deadline set in the reasoned opinion (judgment in Commission v Portugal C-20/09, EU:C:2011:214, paragraph 33).

The Court found that the effects of the alleged infringements of EU law are likely to have continued for the whole duration of the validity of the contracts awarding the broadcasting in breach of the directives (judgment in Commission v Germany C-20/01 and C-28/01, EU:C:2003:220, paragraphs 35 and 36).

The Court also dismissed the argument made by Bulgaria that the Commission should have indicated what specific measure it should have taken to end the infringement.

The Court recalled that the principle of loyal cooperation did not require the Commission to state in the reasoned opinion what measure the Member State should take (judgment in Commission v Greece C-394/02 EU:C:2005:336 paragraph 21). It is for the Member States themselves to determine what measures they should take and it is only when the Commission reproaches the Member State for not taking a specific measure that it should say so in the reasoned opinion (judgment in Commission v Greece C-394/02 EU:C:2005:336 paragraph 21).

Consequently, the Court held that the application was admissible and it also found, on the substance, that Bulgaria had infringement EU law.