European Commission v Hellenic Republic.
Date: 2011-03-31
16. According to the settled case-law of the Court, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes, even if they would constitute a correct transposition of the rule of European Union law that is the subject of the action for failure to fulfil obligations (see, inter alia, Case C-475/08 Commission v Belgium [2009] ECR I‑11503, paragraph 30, and judgment of 9 December 2010 in Case C-340/09 Commission  v Spain , paragraph 39).
28. The Court has already held that, 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 liable to persist, the imposition of a lump sum is prompted, essentially, by the assessment of the consequences for public and private interests of the failure of the Member State concerned to comply with its obligations, in particular where the breach has persisted for a long period after the judgment initially establishing it was delivered (see, inter alia, Case C-121/07 Commission  v France  [2008] ECR I-9159, paragraph 58).
29. 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 European Union law from recurring (see Commission v France , paragraph 59).
30. As to whether a lump sum payment should be imposed, it should also be pointed out that this 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, Commission  v France , paragraph 62).
31. 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, first, appropriate to the circumstances and, secondly, proportionate both to the breach that has been established and the ability to pay of the Member State concerned (Case C-568/07 Commission v Greece [2009] ECR I‑4505, paragraph 47).
34. With regard, secondly, to the duration of the infringement with which this action is concerned, 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 (see, inter alia, Case C-568/07 Commission  v Greece , paragraph 51).
36. The justifications put forward by the Hellenic Republic in this regard, namely that the delay in complying with that judgment was attributable to internal difficulties connected with the legislative procedure and the holding of early 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 European Union law (see, inter alia, Case C‑568/07 Commission  v Greece , paragraph 50).
42. Secondly, it is appropriate to take into account that Member State’s ability to pay as it stands in the light of the latest economic data submitted for appraisal by the Court.