Opinion of the Advocate General — ECLI:EU:C:2009:151
Date: 2009-03-12
Language of the case: Greek
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Provisions governing the Institutions;Free movement of goods;Measures having equivalent effect;Approximation of laws;Quantitative restrictions;Freedom to provide services
Procedure: Action for failure to fulfil obligations - successful
Origin: Greece

Summary of the Judgment 1. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Period for implementation (Art. 228 EC) 2. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Breach of the obligation to comply with the judgment – Financial penalties (Art. 228(2) EC) 3. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Breach of the obligation to comply with the judgment – Financial penalties – Penalty payment (Art. 228(2) EC) 4. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Breach of the obligation to comply with the judgment – Financial penalties – Imposition of a lump sum payment (Art. 228(2) EC) 1. Although Article 228 EC does not specify the period within which a judgment of the Court establishing that a Member State has failed to fulfil its obligations must be complied with, the importance of immediate and uniform application of Community law means that the process of compliance must be initiated at once and completed as soon as possible. In addition, the reference date for assessing whether there has been a failure to fulfil obligations under Article 228 EC is the date of expiry of the period prescribed in the reasoned opinion issued under that provision. (see paras 14-15) 2. In the procedure provided for in Article 228(2) EC, it is for the Court to assess in each case, in the light of the circumstances of the case, the financial penalties to be imposed. In that connection, the Commission’s suggestions cannot bind the Court and merely constitute a useful point of reference. Similarly, while guidelines such as those in the notices of the Commission do not bind the Court, they do help to ensure that the Commission acts in a manner which is transparent, foreseeable and consistent with legal certainty. An order imposing a periodic penalty payment and/or a lump sum is intended to place a Member State which has failed to comply with a judgment establishing a breach of obligations under economic pressure which induces it to put an end to the infringement established. The financial penalties imposed must therefore be decided on according to the degree of persuasion needed for the Member State in question to alter its conduct. (see paras 24-28) 3. Where a penalty payment is to be imposed on a Member State to penalise a failure to comply with a judgment establishing a failure to fulfil obligations, it is for the Court, in exercising its discretion, to set that periodic penalty payment so that it is appropriate to the circumstances and proportionate both to the breach that has been established and to the capacity of the Member State concerned to pay. In that light, the basic criteria which must be taken into account in order to ensure that periodic penalty payments have coercive force and that Community law is applied uniformly and effectively are, in principle, the duration of the infringement, its degree of seriousness and the ability of the Member State to pay. In applying those criteria, regard should be had in particular to the effects of failure to comply on private and public interests and to the urgency of inducing the Member State concerned to fulfil its obligations. (see paras 31-32) 4. The decision whether to impose a lump sum payment 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 Member State involved in the procedure instigated pursuant to Article 228 EC. If the Court decides to impose a lump sum payment, it must do so, in exercising its discretion, in a manner that is appropriate to the circumstances and proportionate both to the breach that has been established and to the capacity of the Member State concerned to pay. The relevant factors to be taken into account in making such a decision include, in particular, factors such as how long the breach of obligations has persisted since the judgment which initially established it was delivered and the public and private interests involved. (see paras 51-52)