Commission of the European Communities v Portuguese Republic.
Date: 2008-01-10
18. In that regard, according to settled case‑law, 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 Case C‑304/02 Commission v France  [2005] ECR I‑6263, paragraph 30; Case C‑119/04 Commission v Italy [2006] ECR I‑6885, paragraph 27; and Case C‑503/04 Commission v Germany  [2007] ECR I‑0000, paragraph 19).
22. According to settled case‑law, a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify the failure to observe obligations arising under Community law (see Commission  v Germany , paragraph 38 and the case‑law cited).
23. Similarly, the argument of the Portuguese Republic that State liability for damage caused by acts committed by its officials and agents is already laid down in other provisions of national law cannot be accepted. As the Court held in paragraph 33 of its judgment in Commission  v Portugal , that fact has no bearing on the failure to fulfil obligations constituted by maintaining Decree-Law No 48 051 in force in the national legal system. The existence of such provisions cannot, therefore, ensure compliance with that judgment.
31. In that regard, 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‑304/02 Commission v France , paragraph 86, and Case C‑177/04 Commission v France  [2006] ECR I‑2461, paragraph 58)
33. That suggestion is based on the method of calculation which the Commission defined in its Communications of 1996 and 1997. It should also be made clear that those two communications were replaced by the Communication of 2005 which, pursuant to point 25 thereof, applies to decisions taken by the Commission from 1 January 2006 to refer a matter to the Court of Justice under Article 228 EC.
34. In that regard, it must, first, be pointed out that the Commission’s suggestions cannot bind the Court and merely constitute a useful point of reference (see Commission v Greece , paragraph 80, and Commission v Spain , paragraph 41). Similarly, guidelines such as those contained in the communications of the Commission are not binding on the Court but contribute to ensuring that that institution’s actions are transparent, foreseeable and consistent with legal certainty (see, to that effect, Case C‑304/02 Commission v France , paragraph 85, and Case C‑177/04 Commission v France , paragraph 70).
35. The Court has also stated that the order imposing a 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 breach established. The financial penalties imposed must therefore be decided upon according to the degree of persuasion needed in order 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).
37. Given that it must be considered that the failure to fulfil obligations at issue was still apparent when the Court examined the facts, it must be found that, as suggested by the Commission, the order imposing a penalty payment on the Portuguese Republic constitutes a means adapted in order to induce that Member State to take the measures necessary to ensure compliance with the judgment in Commission v Portugal  (see, to that effect, Case C‑304/02 Commission  v France , paragraph 31; Case C‑177/04 Commission v France , paragraph 21; and Commission v Italy , paragraph 33).
38. Next, as regards the method of calculation of the amount of such a penalty payment, it is for the Court, in exercising its discretion, to set the penalty payment so that it is appropriate to the circumstances and proportionate both to the breach that has been established and to the ability to pay of the Member State concerned (see, inter alia, Case C‑304/02 Commission v France , paragraph 103, and Case C‑177/04 Commission v France , paragraph 61).
39. In that light, the basic criteria which must be taken into account in order to ensure that penalty payments have coercive force and Community law is applied uniformly and effectively are, in principle, the duration of the infringement, its degree of seriousness and the ability 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, inter alia, Case C‑304/02 Commission v France , paragraph 104, and Case C‑177/04 Commission v France , paragraph 62).
40. As regards, first, the seriousness of the infringement and, in particular, the consequences of the failure to comply with the judgment in Commission v Portugal  on private and public interests, it should be pointed out that, pursuant to the third recital in the preamble to Directive 89/665, the opening-up of public procurement to Community competition necessitates a substantial increase in the guarantees of transparency and non-discrimination. In order for that opening-up to have tangible effects, effective and rapid remedies must be available in the case of infringements of Community law in the field of public procurement or national rules implementing that law.
45. It should be recalled that the duration of the infringement must be assessed by reference to the time when the Court assesses the facts, not the time at which the case is brought before it by the Commission (see, to that effect, Case C‑177/04 Commission v France , paragraph 71).
48. As regards, third, the Commission’s suggestion of multiplying a basic amount by a coefficient based on the gross domestic product of the Member State concerned and on the number of votes which it has in the Council, that suggestion is an appropriate way, in principle, of reflecting that Member State’s ability to pay, while keeping the variation between Member States within a reasonable range (see, to that effect, Commission v Greece , paragraph 88; Commission v Spain , paragraph 59; and Case C‑304/02 Commission v France , paragraph 109).
52. As regards the frequency of the penalty payment, in a case such as the present one concerning compliance with a judgment of the Court which involves the adoption of a legislative amendment, a penalty imposed on a daily basis should be chosen (see, to that effect, Case C‑177/04 Commission v France , paragraph 77).