EN Official Journal of the European Union C 11/16

Action brought on 22 October 2009 — Commission of the European Communities v Hellenic Republic

(Case C-407/09)

2010/C 11/27

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Kontou-Durande and A.-M. Rouchaud-Joët)

Defendant: Hellenic Republic

Form of order sought

— declare that, by having failed to take the necessary measures to comply with the judgment delivered by the Court of Justice on 18 July 2007 in Case C-26/07, the Hellenic Republic has failed to fulfil its obligations under Article 228(1) of the EC Treaty;

— order the Hellenic Republic to pay to the Commission, into the account ‘European Community own resources’, a proposed penalty payment in the sum of EUR 72 532,80 for each day of delay in taking the measures necessary to comply with the judgment delivered in Case C-26/07, from the day on which judgment is delivered in the present case until the day on which the judgment in Case C-26/07 has been complied with;

— order the Hellenic Republic to pay to the Commission, into the account ‘European Community own resources’, the daily lump sum of EUR 10 512 for each day of delay from the day on which judgment was delivered in Case C-26/07 until the day on which judgment is delivered in the present case, or the date on which the measures necessary to comply with the judgment in Case C-26/07 are taken if that occurs earlier;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

In the present case, the Hellenic Republic has not yet adopted the legislative measures necessary for transposing Directive 2004/80/EC into Greek law.

It is therefore clear that the Hellenic Republic has not yet taken the measures required in order to comply with the judgment of the Court of Justice of 18 July 2007 in Case C-26/07 Commission v Greece.

Under the second sentence of the second subparagraph of Article 228(2) of the EC Treaty, the Commission is to specify in its application the amount of the lump sum and/or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. In the instance in point, the Commission has decided to propose to the Court a penalty payment and a lump sum.

The Commission, acting on the basis of the principles and the methods of calculation set out in the Communication of 13 December 2005, has regard to three fundamental criteria when determining the proposed amount: (a) the seriousness of the infringement; (b) the duration of the infringement; and (c) the need to ensure that the penalty will be a deterrent.

Analysis of the application of those criteria in the present case leads to the conclusion that the duration of the infringement and its effects on private and public interests are significant and justify imposition of the financial penalties proposed.

As is apparent from the Commission’s report relating to implementation of the directive, all the Member States apart from Greece have transposed the directive into national law and provide the protection required by the directive.

The failure to transpose the directive into Greek law obstructs achievement of the fundamental objective of freedom of movement for persons in a uniform area of freedom, security and justice. The effects on interests of a general and individual nature are therefore very significant.