Judgment — ECLI:EU:C:2009:342
Date: 2009-06-04
Language of the case: Greek
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment
Concepts: Defences;Effects of the judgment;Financial penalties in cases of failure to comply with the judgment
Procedure: Action for failure to fulfil obligations - successful
Origin: Greece

summary, insists that the Greek legislation in question did not have a protectionist objective but was activated by overriding grounds of public interest concerning public health. 39 The delay in complying with the judgment in Commission v Greece was not intentional, but was caused by internal difficulties connected with the legislative procedure and the holding of elections. 40 Having regard to the subject‑matter of the case and the content of Article 14 of Law No 3661/08, there is no actual risk of a further infringement. 41 Moreover, according to the Hellenic Republic, the infringement is not very serious, since, even before the adoption of Law No 3661/08, it concerned only part of the second complaint upheld by the judgment in Commission v Greece. Findings of the Court The penalty payment 42 It should be borne in mind that, according to established case‑law, the imposition of a penalty payment pursuant to Article 228 EC is, in principle, justified only in so far as the failure to comply with an earlier judgment of the Court persists (see, inter alia, to that effect, Case C‑119/04 Commission v Italy [2006] ECR I‑6885, paragraphs 45 and 46, and Case C‑503/04 Commission v Germany [2007] ECR I‑6153, paragraph 40). 43 Having regard to the fact that the Commission accepts that Law No 3661/08 ensures that the judgment in Commission v Greece is complied with in its entirety, there is no need to order the Hellenic Republic to make a penalty payment. The lump sum 44 As regards the decision whether to impose a lump sum payment, it should be pointed out that that decision 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 (see, inter alia, Case C‑121/07 Commission v France, paragraph 62). 45 While the imposition of a penalty payment seems particularly suitable for the purpose of 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 be likely to persist, the imposition of a lump sum is prompted more by the assessment of the consequences for private and public interests of the failure by the Member State concerned to comply with its obligations, in particular where the breach has persisted for a long period since the judgment initially establishing it was delivered (Case C‑304/02 Commission v France, paragraph 81). 46 It is for the Court, in each case, in the light of the circumstances of the case before it and the degree of persuasion and deterrence which appears to it to be required, to determine the financial penalties appropriate for making sure that the judgment which previously established the breach is complied with as swiftly as possible and preventing similar infringements of Community law from recurring (Case C‑121/07 Commission v France, paragraph 59). 47 In any event, if the Court decides to impose a lump sum payment, it must, in exercising its discretion, do so in a manner that is, on the one hand, appropriate to the circumstances and, on the other, proportionate both to the breach that has been established and the ability to pay of the Member State concerned (see Case C‑278/01 Commission v Spain [2003] ECR I‑14141, paragraph 41). 48 Consequently, for the purpose of giving a decision on the request that the defendant be ordered to pay a lump sum, account must be taken of all the circumstances of this case, and, in particular, of the conduct of the Hellenic Republic and the duration and seriousness of the infringement. 49 Thus, with regard, firstly, to the conduct of that Member State, it is common ground that it complied fully with the second complaint upheld by the judgment in Commission v Greece only when it adopted Law No 3661/08, despite the fact that the action required in order completely to eliminate the obstacles found by that judgment did not present any particular difficulty. 50 In that regard, the justifications put forward by the Hellenic Republic to the effect that the delay in implementing that judgment was attributable to internal difficulties connected with the legislative procedure or the holding of elections cannot be accepted. As the Court has repeatedly held, a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under Community law (see, inter alia, Commission v Germany, paragraph 38). 51 Secondly, with regard to the duration of the infringement, it should be recalled that, although Article 228 EC does not specify the period within which a judgment must be complied with, it is nevertheless, beyond dispute that the action required to give effect to a judgment must be set in motion immediately and be completed as soon as possible (Case 131/84 Commission v Italy [1985] ECR 3531, paragraph 7). 52 In the present case, almost 37 months elapsed between the date of delivery of the judgment in Commission v Greece and the date on which the Hellenic Republic brought its legislation fully into line with that judgment. 53 Clearly, therefore, the infringement alleged against the Hellenic Republic persisted for a significant period of time, particularly when account is taken of the fact that full compliance with the judgment in Commission v Greece was hardly a complex matter. 54 Thirdly, as regards the seriousness of the infringement, it should be noted that the present infringement caused a significant restriction on the freedom of establishment to persist. 55 In its judgment in Commission v Greece, the Court considered that the legislation in question was in breach of the fundamental principle set out in Article 43 EC by permitting companies or firms established in other Member States to establish and operate opticians’ shops only if the majority of the members were opticians or, as the case might be, the holders of more than half of the share capital were opticians. 56 In that regard, it is necessary to point out that an infringement such as that in the present case can substantially affect the interests of companies or firms and opticians established in another Member State who might wish to establish an optician’s shop in Greece. 57 Having regard to the foregoing, the Court considers it justifiable to order the Hellenic Republic to pay a lump sum. 58 For the purpose of determining the amount of that lump sum payment, it is appropriate to have regard, in addition to the considerations set out at paragraphs 49 to 56 of this judgment, to the following circumstances. 59 Thus, it must be recalled that, even before the judgment in Commission v Greece was delivered, the Hellenic Republic had partially put an end to the infringement found by that judgment. The defendant had amended the provisions in question as regards the fact that opticians who were natural persons could not operate more than one optician’s shop and had eliminated most of the conditions linked to the establishment and operation of opticians’ shops by legal persons. 60 It is also appropriate to point out that, by adopting Law No 3661/08, the Hellenic Republic complied fully with the requirements of the judgment in Commission v Greece during the proceedings in the present case. 61 In the light of all the foregoing considerations, it is a fair assessment of the circumstances of the case to set the amount of the lump sum which the Hellenic Republic will have to pay at EUR 1 million. 62 The Hellenic Republic must therefore be ordered to pay into the ‘European Community own resources’ account of the Commission a lump sum of EUR 1 million. Costs 63 Under Article 69(2) of the Rules of Procedure, 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 applied for costs and the Hellenic Republic has failed in its submissions, it must be ordered to pay the costs. On those grounds, the Court (Second Chamber) hereby: 1. Declares that, by failing to take, by the date on which the time-limit set in the reasoned opinion issued by the Commission pursuant to Article 228 EC expired, all the measures necessary to comply with the judgment of 21 April 2005 in Case C‑140/03 Commission v Greece, the Hellenic Republic has failed to fulfil its obligations under Article 228(1) EC. 2. Orders the Hellenic Republic to pay into the ‘European Community own resources’ account of the Commission of the European Communities a lump sum of EUR 1 million. 3. Orders the Hellenic Republic to pay the costs. [Signatures] * Language of the case: Greek.