Commission of the European Communities v Hellenic Republic.
Date: 2009-06-04
14. 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, it follows from settled case-law that 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 (see, inter alia, Case C-121/07 Commission  v France  [2008] ECR I‑0000, paragraph 21 and the case‑law cited).
15. 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, inter alia, Case C‑503/04 Commission  v Germany [2007] ECR I‑6153, paragraph 19 and the case‑law cited).
25. In that connection, it should be pointed out that 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 (Case C‑70/06 Commission  v Portugal  [2008] ECR I‑1, paragraph 31 and the case‑law cited).
27. In that connection, it must first of all be pointed out that the Commission’s suggestions cannot bind the Court and merely constitute a useful point of reference (see Case C‑278/01 Commission  v Spain  [2003] ECR I‑14141, paragraph 41 and the case-law cited). 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 (see, to that effect, Case C‑304/02 Commission  v France  [2005] ECR I‑6263, paragraph 85, and Case C‑177/04 Commission  v France  [2006] ECR I‑2461, paragraph 70).
28. The Court has also made clear that an order imposing a periodic penalty payment and/or a lump sum is intended to place a defaulting Member State 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, to that effect, Case C‑304/02 Commission  v France , paragraph 91, and Case C‑177/04 Commission  v France , paragraphs 59 and 60).
30. Given that the failure in question to fulfil obligations was still continuing on the date on which the Court examined the facts, an order imposing a periodic penalty payment on the Hellenic Republic, suggested by the Commission, constitutes an appropriate means by which to induce that Member State to take the measures necessary to ensure compliance with the judgment in Case C-65/05 Commission  v Greece  (see Commission  v Portugal , paragraph 37 and the case-law cited).
31. Next, as regards the method of calculation of the amount of such a periodic penalty payment, 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 (see, inter alia, Commission  v Portugal , paragraph 38 and the case-law cited).
32. 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 degree of seriousness of the infringement, its duration and the capacity 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 Commission  v Portugal , paragraph 39 and the case-law cited).
37. In addition, the purpose of the national rules at issue in Case C‑65/05 Commission  v Greece  was to combat the serious social problems caused by the fact that the games concerned could easily be converted into games of chance, which are prohibited in Greece outside casinos. At paragraph 38 of the judgment in that case, the Court accepted that the overriding public-interest reasons put forward by the Hellenic Republic might justify the barrier to the free movement of goods established in that case. At paragraph 41 of that judgment, however, the Court held that the prohibition of the games in question on all public and private premises apart from casinos constitutes a measure which is disproportionate in view of the objective pursued.
38. In the light of those considerations, the coefficient designed to take account of the seriousness of the infringement should be set at 8, which appropriately reflects the particular nature of the infringement in question.
42. As regards, third, the capacity of the Member State concerned to pay, the Commission’s suggestion that a coefficient be selected which is based on the gross domestic product of the Member State in question and on the number of votes which it has in the Council is an appropriate way, in principle, of reflecting that criterion, while keeping the variation between Member States within a reasonable range (see, to that effect, Commission  v Portugal , paragraph 48 and the case‑law cited).
51. 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 (Case C‑121/07 Commission  v France , paragraph 62).
52. If the Court decides to impose a periodic penalty payment or 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. More specifically as regards the imposition of a lump sum payment, the relevant factors to be taken into account 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 Case C‑121/07 Commission  v France , paragraph 64 and the case-law cited).