Commission of the European Communities v Hellenic Republic.
Date: 2009-06-04
24. It is appropriate to recall that, in accordance with settled case-law, 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 (see, inter alia, Case C‑121/07 Commission  v France  [2008] ECR I‑0000, paragraph 22).
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).
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).
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).