Introduction

When it comes to referrals to the Court of Justice of the European Union (‘the Court’) under Article 260(2) TFEU – meaning, when a Member State is brought before the Court for failing to comply with a previous infringement judgment – the Commission is not accustomed to losing. To the best of this author’s knowledge, out of seventy-seven recours en manquement sur manquement brought to date¹, only three have resulted in a dismissal, and all three on grounds of inadmissibility². Last December, a fourth was added to that list³.

That is a follow-up of a 2022 judgment under Article 258 TFEU, where the Court found that the Belgian tax rules on deduction of maintenance payments discriminated against (certain) non-residents, and were thus in breach of EU law⁴. In what followed, the Commission considered that Belgium did not properly implement that ruling, and brought the State back before the Court. The latter, however, declared the action inadmissible, holding that the Commission’s complaints did not correspond to the subject matter of the original infringement ascertained by the Court. With Commission v Belgium, the Court reminded the Commission of a core principle governing the procedure under Article 260(2) TFEU: such an action must mirror the scope of the original infringement judgment.

The reason why the Commission sometimes risks enlarging the scope of litigation under Article 260(2) TFEU – bringing actions against infringements that are, to borrow a phrase, ‘same same, but different’ from the initial ruling – may not lie solely in an occasional disregard for procedural limits, but rather in its continuing efforts to make the most of its enforcement toolbox. This is why the judgment, albeit not particularly innovative in legal principles, remains of interest. After briefly setting out the background, this annotation presents the 2025 judgment and explains how it confirms the case law on this “special” enforcement mechanism⁵. It then comments on a curious aspect of the Court’s reasoning, before reflecting more broadly on whether this ‘identity requirement’ remains warranted or, in light of the need for effective enforcement, should be reconsidered.

The background and the (alleged) failure to comply

As mentioned, the infringement ‘saga’ arose in connection with Belgian income tax legislation. Until recently, that legislation provided for two distinct regimes concerning the deductibility of maintenance payments, depending on whether the taxpayer resided in Belgium or abroad: while Belgian residents could deduct all qualifying maintenance payments, non-residents were permitted to do so only if they earned at least 75% of their professional income in Belgium – regardless of whether they could benefit from a similar deduction in their Member State of residence⁶. In 2022, following an infringement procedure, the Court held that such a 75% threshold rule, by failing to provide for any exception based on the taxpayer’s personal situation, discriminated against non-resident workers, resulting in a breach of Article 45 TFEU and Article 28 of the EEA Agreement⁷.

Pursuant to Article 260(1) TFEU, Belgium was then under an obligation to “take the necessary measures to comply” with the Article 258 judgment, which, as is known, is purely declaratory in nature and cannot impose specific remedial measures⁸. It was precisely in that regard that the disagreement leading to the second judgment emerged.

To comply with the first infringement judgment, Belgium amended its income tax legislation and removed the 75% threshold. At the same time, however, it introduced two new conditions – allegedly to take in full account the personal situation of the taxpayer, and to prevent ‘reverse discrimination’ through double deductibility⁹. In essence, under the new regime, non-residents could deduct their maintenance payments only if neither they nor their spouse already benefitted from a comparable deduction in their state of residence, and only if said deduction could not be carried forward to a later tax year.

The Commission was not happy with the new legislation: it maintained that the new conditions merely perpetuated, under a different guise, the same discriminatory effects that had been found incompatible with EU law in the first infringement judgment. Consequently, it lodged an action under Article 260(2) TFEU seeking the declaration that Belgium had not fully complied with the 2022 judgment, along with the imposition of a penalty payment and a lump sum. Belgium, however, raised an objection of inadmissibility, arguing that the only obligation arising from the first judgment was the removal of the 75% threshold; the Commission’s complaints, instead, concerned new conditions that, as such, fell outside the scope of the first judgment.

The judgment en manquement sur manquement

The Court dealt with the matter rather swiftly. Deciding in a chamber of three judges, and without Advocate General Opinion, it upheld the inadmissibility objection raised by the Belgian Government.

To do so, the Court relied on two already established principles of its case law. It first recalled that actions under Article 260(2) TFEU must only relate to complaints identical both in fact and in law to those found to be in breach of EU law in the first infringement judgment¹⁰. To understand whether that is the case, the Court continued, particular importance must be given to the operative part of the first judgment, read in light of the reasoning that led to the finding of infringement¹¹.

With similar conciseness, the Court went on to apply these principles to the case before itself. It found that the Commission’s complaints related to aspects – namely, the conditions added with the amendment – which had not formed the object of the first infringement judgment. That judgment, in fact, dealt exclusively with the 75% income threshold, and not with the possibility to carry the deduction forward, or the fiscal position of the taxpayer’s spouse¹². The conclusion followed suit: as the subject matter was different from that addressed in the first infringement judgment, it could not be the object of a procedure under Article 260(2) TFEU¹³. Hence, the Court dismissed the action as inadmissible.

Though the Court’s reasoning may at first appear underwhelming in its swift treatment, Commission v Belgium actually was, in many respects, a relatively ‘easy’ case. On the one hand, the Court did not have to elaborate new principles of law: that the action under Article 260(2) TFEU can only be brought against matters forming the object of the infringement found under 258 TFEU was already well established, as will be seen. On the other hand, despite the Commission’s argument that the discriminatory effect of the Belgian tax regime persisted as a result of two conditions introduced by the legislative amendment, it was rather clear that such conditions constituted new elements, introduced after the its infringement judgment, and therefore could not have formed part of its object. That said, a number of observations could also be made; stemming respectively from a closer and a broader look at the judgment.

A curious choice of precedents

One of the curious aspects of the judgment is the Court’s choice of case law from which it developed its reasoning. As mentioned, this was not the first time the Commission attempted to ‘cross the line’ of the scope of Article 260(2) TFEU. Already in the 2013 judgment in Commission v Germany, the Commission had sought financial penalties for not remedying to aspects that, as the Court found, did not actually form part of what had been found in breach of EU law in the first infringement judgment; and there too, the Court had dismissed the case as inadmissible¹⁴. In its reasoning, the Grand Chamber for the first time established the principle that “only a failure of a Member State to fulfil its obligations under the Treaty which the Court has held, on the basis of Article 258 TFEU, to be well founded may be dealt with” the procedure en manquement sur manquement¹⁵. Likewise, it also specified there that the relevant benchmark is the operative part of the first judgment, construed in light of the grounds underpinning it¹⁶.

In the case at hand, the Court chose instead to rely on its earlier judgment in Commission v Luxembourg, related to an action en manquement ‘simple’ under (then) Article 226 EC, precisely concerning amendments that the State had introduced to comply with a prior infringement action. There, the Court, dismissing Luxembourg’s objection that such a ‘new’ infringement proceeding was contrary to the principle of res judicata and ne bis in idem¹⁷ , mentioned that the action brought by the Commission was not, in that case, conflicting with the procedure under (then) Article 228 EC. Such an overlap, the Court noted in passing, would arise “only if […] the complaints raised in [those] proceedings are identical in fact and in law to those put forward” in the first infringement – which was not the case there¹⁸. Yet it is precisely this obiter that the Court referred to, deriving the principle from it a contrario, in the present case¹⁹.

To be sure, the Court was not wrong in doing so – the factual pattern in the Luxembourg judgment was indeed similar to the Belgian situation: a first infringement action, followed by national legislation that formally addressed the violation but potentially gave rise to new, distinct concern. Still, given the procedural distinction between a standard infringement and a manquement sur manquement, legal clarity and coherence might have benefitted from relying instead on Commission v Germany, where the very same issue of inadmissibility under Article 260(2) TFEU was squarely addressed by the Grand Chamber and resolved with a clearer articulation of principle.

Be that as it may, the Court now appears to treat these principles as settled case law. What picture, then, emerges from this line of reasoning, and what does it tell us about the nature of the Article 260(2) TFEU procedure?

Balancing the nature and effectiveness of Article 260(2) TFEU

The principles recalled and applied in the judgment analysed here find their justification in the peculiar nature of the procedure under Article 260(2) TFEU, which in turn is linked to the obligation of that article’s first paragraph: following a judgment finding an infringement, Member States must take all necessary measures to comply with that judgment. Under this perspective, it is no surprise that the Court has characterised the procedure en manquement sur manquement as a “special judicial procedure of the enforcement of judgments”²⁰. As aptly put by AG Jääskinen, the fundamental point of reference following an Article 258 judgment “is that of compliance, namely the effective implementation of the wording of the operative part” of the first ruling²¹.

This enforcement-driven nature is visible in other aspects of the procedure. For instance, when penalty payments are imposed, they are not conceived as a ‘punishment’ but rather as a way to induce the breaching Member State to comply²², in line with the general objective of infringement proceedings to “achieve the practical elimination” of the breach²³. Moreover, this nature is also reflected in the more limited procedural guarantees for the State concerned, when compared to the first infringement action. Indeed, the Treaty of Lisbon simplified the pre-litigation phase under Article 260(2) TFEU, removing the requirement for a reasoned opinion and replacing it with a simple opportunity for the Member State to submit observations following the Commission’s formal notice²⁴.

If compliance with the first judgment is the goal, then the Member State must be able to clearly identify the necessary corrective measures and, a fortiori, what was essentially the breach found in the first judgment – which is why the operative part of the initial judgment is so central. Here, the Court’s approach favours legal certainty: the infringement to be remedied is essentially limited to the operative part of the first judgment. It is from that basis that the Commission must assess compliance in the post-litigation phase and determine whether a follow-up action under Article 260(2) TFEU is justified.

Yet, in practice, matters are rarely this straightforward. Not always (in fact, quite rarely) can a breach be remedied just with the repeal of a national provision; this usually requires more complex intervention involving different stages and actors. That is why a certain degree of flexibility is inherent in the system, and why the reasoning of the first judgment proves sometimes essential in giving meaningful content to its operative part²⁵. The fact remains, however, that such reasoning cannot serve to expand the objective scope of the original finding²⁶ – as would have been the case here, had the Court accepted the inclusion of two conditions that were never discussed at the first stage.

The result of this conceptualisation, therefore, is that the Commission cannot, through the Article 260(2) procedure, seek financial penalties for elements of the national measure in question that have not previously been declared in breach of EU law.

Nevertheless, conceptualising the action en manquement sur manquement in this way inevitably entails certain drawbacks from the standpoint of effective enforcement. Seen from that angle, the Commission’s course of action in Commission v Belgium becomes more understandable: if the first infringement judgment sought to eliminate discriminatory effects in the Belgian tax regime, is compliance truly achieved when the State formally repeals the specific censured provision, only to allegedly reintroduce discrimination ‘through the backdoor’?

The issue is far from hypothetical, considering the tendency of certain Member States to engage in merely “cosmetic” compliance, especially where political resistance prevents the achievement of deeper reforms²⁷. In that light, the requirement of strict identity between the first judgment and the subject matter of the procedure capable to lead to actual financial penalties might undermine the effectiveness of this enforcement mechanism. It may, in fact, incentivise reluctant States to make marginal adjustments²⁸, aware that the Commission would need to initiate a new procedure, along with the inevitable delays that this entails, before financial sanctions can be imposed.

While a full analysis is beyond the scope of this annotation, it seems that other features of infringement proceedings might already help counterbalance these drawbacks. First, it should be reminded that inadmissibility in this context does not equate to a “compatibility certificate”²⁹ for the new measures: the Commission remains free to initiate a fresh infringement procedure under Article 258 TFEU if it considers that the revised legislation still infringes EU law³⁰. In that context, there are then a number of ways to compensate for the possibly longer procedural delays. Indeed, the Commission has discretion in deciding what constitute “reasonable” time limits for the Member State concerned to restore compliance with EU law, in the pre-litigation phase: as reminded by the Court, “very short periods may be justified in particular circumstances” like in case of special urgency, “or where the Member State concerned is fully aware of the Commission’s views long before the procedure starts”³¹. In addition, if the State is brought back before the Court, the Commission could ask for interim measures, whose importance has grown significantly in recent years, particularly since the Court started imposing financial penalties for non-compliance with such measures³². Its claims could be then bolstered by invoking that the new measures form part of a systemic, “deliberate” pattern of non-compliance on the part of the Member State³³.

Second, the identity requirement is not unavoidably rigid. It appears to retain a necessary flexibility in cases of more complex infringements not confined to specific legislative provision(s). With “structural” or “general and persistent” breaches of EU law,³⁴ for instance, the Court has refrained from limiting the scope of the obligation under Article 260 TFEU to the specific elements identified in the original Article 258 judgment,³⁵  and has instead been willing to take into account additional elements put forward by the Commission to substantiate its claim of continuing non-compliance.

In light of this, while a future case may well bring the balance between procedural safeguards and effective enforcement into sharper tension, such a balance appears, for the moment, faithful to the nature of this peculiar infringement mechanism.

Conclusion

To conclude, the judgment in Commission v Belgium serves as a further reminder to the Commission of the limits inherent in the procedure en manquement sur manquement, when it comes to potential infringements that look the same as already establish ones, but are in reality legally different from the original breach. The Court chose to adhere closely to its established case law, and considering specific nature of the procedure under Article 260(2) TFEU, that approach appears warranted.

For the case at issue here, this means two things. On the one hand, this reminder may already prompt the Commission to more carefully define the breach from the outset of infringement proceedings³⁶, bearing in mind the perspective of follow-up litigation. On the other hand, Belgium cannot yet rest easy: a new infringement targeting the revised deduction conditions may still be around the corner.

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* The views expressed here are strictly personal and do not engage the Court of Justice of the European Union.

1 Figure obtained by searching all infringement cases containing a decision on a “second referral to Court” using the Commission’s infringement search engine: see https://ec.europa.eu/implementing-eu-law/search-infringement-decisions/.

2 Court of Justice, 19 September 2009, Case C-457/07, Commission v Portugal; 22 October 2013, Case C-95/12, Commission v Germany; and 16 March 2023, Case C-174/21, Commission v Bulgaria.

3 Court of Justice, 11 December 2025, Case C-662/24, Commission v Belgium (‘judgment’).

4 Court of Justice, 10 March 2022, Case C-60/21, Commission v Belgium.

5 Court of Justice, Case C-95/12, Commission v Germany, cit., para 23.

6 Court of Justice, Case C-60/21, Commission v Belgium, cit., para 3.

7 Ibidem, para 39.

8 Court of Justice, 14 April 2005, Case C-104/02, Commission v Germany, para 48; more recently, see 11 July 2019, Case C-304/18, Commission v Italy, para 75; for a complete overview, see K. Lenaerts, K. Gutman, J.T. Nowak, EU Procedural Law, Oxford, 2^nd ed., 2023, p. 223.

9 Judgment, para 25.

10 Ibidem, para 29.

11 Ibidem, para 30.

12 Ibidem, paras 32-33.

13 Ibidem, para 35.

14 Court of Justice, Case C-95/12, Commission v Germany, cit.

15 Ibidem, para 23.

16 Ibidem, paras 37-39.

17 Court of Justice, 29 June 2010, Case C-526/08, Commission v Luxembourg, para. 27.

18 Ibidem, para 23.

19 Judgment, para 29.

20 Court of Justice, 12 July 2005, Case C-304/02, Commission v France, para 92. For a more thorough discussion of the nature of this procedure, see C. Amalfitano, La procedura di “condanna” degli Stati membri dell’Unione europea, Milano, 2012, p. 47.

21 Opinion of AG Jääskinen, 16 May 2013, Case C-292/11 P, Commission v Portugal, point 28.

22 Court of Justice, Case C-304/02, Commission v France, cit., para 93. See in this regard A. Pétel, Le contentieux de la liquidation de l’astreinte dans le recours en manquement: quel bilan et quelles perspectives de développement?, in RTDEur., 2024, p. 33. The other ‘sanction’ available under Article 260(2) TFEU – the lump sum – pursues a slightly different, more ‘compensatory’ objective: see K. Lenaerts, K. Gutman, J.T. Nowak, op. cit., p. 229.

23 L. Prete, Infringement Proceedings in EU Law, Alphen aan den Rijn, 2017, p. 240.

24 M. Condinanzi, C. Amalfitano, La procedura di infrazione dieci anni dopo Lisbona, in Federalismi.it, 2020, p. 217 ff., p. 221.

25 Opinion of AG Wahl, 29 May 2013, Case C-95/12, Commission v Germany, point 26.

26 Opinion of AG Jääskinen, Case C-292/11 P, Commission v Portugal, cit., point 36.

27 L. Pech, K.L. Scheppele, Illiberalism Within: Rule of Law Backsliding in the EU, in CYELS, 2017, p. 3 ff.

28 D. Blanc, Ombres et lumières portées sur la procédure du recours «en manquement sur manquement»: la Commission entre le Tribunal et la Cour de justice, in RTDEur., 2013, p. 285 ff.

29 F. Moslein, Compliance with ECJ judgments vs. compatibility with EU law Free movement of capital issues unresolved after the second ruling on the Volkswagen law: Commission v. Germany, in CMLRev, 2015, p. 801 ff., p. 808.

30 In the same way as the Commission had done, for instance, in Court of Justice, Case C-526/08, Commission v Luxembourg, cit.

31 E.g., Court of Justice, 16 July 2020, Case C-549/18, Commission v Romania, para 70.

32 E.g., Court of Justice, 27 October 2021, Case C-204/21 R, Commission v Poland; on the possibility for more strategic use of infringement proceedings, see M. Bonelli, Infringement Actions 2.0: How to Protect EU Values before the Court of Justice, in EuConst, 2022, p. 30 ff.

33 The characterisation of the State’s infringement as “deliberate” has indeed played a crucial role in recent years, both in the imposition and quantification of sanctions under Article 260(2) TFEU, and more broadly in the context of infringement proceedings. See, respectively, Court of Justice, 13 June 2024, Case C-123/22, Commission v Hungary, paras 107-113; and P. Pohjankoski, Bolstering Federal Execution of EU Law: Case C-123/22 Commission v Hungary, in MJ, 2025, p. 89 ff., p. 97.

34 On these two concepts, see C. Burelli, The Deterrent Effect of Financial Sanctions Pursuant to Article 260(2) TFEU in the Context of Violations of Environmental Obligations, in The Italian Review of International and Comparative Law, 2023, p. 368 ff. Qualifying infringements as ‘systemic’ is not without uncertainties, however, and especially in the post-litigation phase: see L. Prete, The Systemic Criterion in the Use of Infringement Proceedings, in GLJ, 2023, p. 1011 ff., p. 1019.

35 Court of Justice, 2 December 2014, Case C-196/13, Commission v Italy, paras 32-33.

36 A. Pétel, op. cit.