Court of Justice of the European Communities (including Court of First Instance Decisions)

(Failure of a Member State to fulfil obligations Articles 28 EC, 43 EC and 49 EC Directive 98/34/EC Technical standards and regulations National rules applicable to electrical, electromechanical and electronic computer games Judgment of the Court establishing the failure of a Member State to fulfil its obligations Non'implementation Article 228 EC Financial penalties)

In Case C-09/08,

ACTION under Article 228 EC for failure to fulfil obligations, brought on 10 March 2008,

Commission of the European Communities, represented by M. Patakia and M. Konstantinidis, acting as Agents, with an address for service in Luxembourg,

applicant,

Hellenic Republic, represented by N. Dafniou, V. Karra and P. Milonopoulos, acting as Agents, with an address for service in Luxembourg,

defendant,

composed of C.W.A. Timmermans, President of the Chamber, J.'C. Bonichot, J. Makarczyk, P. Klūris (Rapporteur) and L. Bay Larsen, Judges,

Advocate General: Y. Bot,

Registrar: R. Şereş, Administrator,

having regard to the written procedure and further to the hearing on 29 January 2009,

after hearing the Opinion of the Advocate General at the sitting on 12 March 2009,

gives the following

1. By its application, the Commission of the European Communities claims that the Court should:

declare that, by failing to take all the measures necessary to comply with the judgment of 26 October 2006 in Case C-65/05 Commission v Greece [2006] ECR I-10341, the Hellenic Republic has failed to fulfil its obligations under Articles 28 EC, 43 EC and 49 EC and under Article 8 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18) ('Directive 98/34');

order the Hellenic Republic to pay to the Commission, into the account 'European Community own resources', a penalty payment of EUR 31 798.80 for each day of delay in complying with the judgment in Case C-5/05 Commission v Greece from the day on which judgment is delivered in the present case until the day on which the judgment delivered in Case C-5/05 has been complied with;

order the Hellenic Republic to pay to the Commission, into the account 'European Community own resources', a lump sum corresponding to EUR 9 636 for each day from 26 October 2006 until the day on which judgment is delivered in the present case or the day on which the judgment in Case C-5/05 Commission v Greece has been complied with, if that occurs earlier; and

order the Hellenic Republic to pay to the costs.

Legal framework

2. Under Article 2(1) of Law No 3037/2002 (FEK A' 174/30.7.2002), entitled 'Prohibition on the use or installation of games', the use of electrical, electromechanical and electronic games, 'including computers, is prohibited on public premises in general, such as hotels, cafés and meeting rooms recognised as being for any kind of public use or on any other public or private premises. The installation of those games is also prohibited'.
3. Article 3 of that law, entitled 'Undertakings providing internet services', provides that '[t]he installation and operation of computers in undertakings providing internet services are not subject to the prohibition in Article 2. However, operating games on those computers, irrespective of the method used, is prohibited'.
4. Failure to comply with those prohibitions triggers the application of the criminal and administrative penalties set out in Articles 4 and 5 of that law respectively.
5. Lastly, Article 9(1) of Law No 3037/2002 specifies that the provisions of that law 'shall be without prejudice to the provisions of Law No 2206/1994 or to the other provisions relating to casinos'.

The judgment in Case C-65/05 Commission v Greece

6. In paragraph 1 of the operative part of the judgment in Case C-5/05 Commission v Greece, the Court of Justice held that:

'... by inserting into Articles 2(1) and 3 of Law No 3037/2002 the prohibition, subject to the criminal and administrative penalties set out in Articles 4 and 5 of the same law, on the installation and operation of all electrical, electromechanical and electronic games, including all computer games, on all public or private premises apart from casinos, the Hellenic Republic has failed to fulfil its obligations under Articles 28 EC, 43 EC and 49 EC and Article 8 of Directive [98/34].'

The pre-litigation procedure

7. Having been asked by the Commission on 11 December 2006 to report on the implementation of the judgment in Case C-5/05 Commission v Greece, the Hellenic Republic replied by letter of 12 February 2007. In that letter, the Greek authorities provided no specific information concerning the amendment of the national rules at issue in order to ensure compliance with that judgment. On the contrary, they emphasised the seriousness and complexity of that amendment, stating that the relevant ministries were cooperating in order to introduce acceptable rules complying with Community law and with the principle of proportionality.
8. Taking the view that the Hellenic Republic had not taken the necessary measures to comply with the judgment in Case C-5/05 Commission v Greece, the Commission sent a letter of formal notice to that Member State, pursuant to Article 228 EC, on 23 March 2007.
9. Since the Hellenic Republic did not reply to that letter, on 29 June 2007 the Commission sent a reasoned opinion to that Member State, calling upon it to adopt the measures necessary to ensure compliance with that judgment within two months of receipt of that opinion.
10. Since the Hellenic Republic did not reply to the reasoned opinion or notify the Commission of any legislative measure intended to ensure compliance with the judgment in Case C-65/05 Commission v Greece, the Commission, taking the view that that Member State had failed to comply with that judgment, brought the present action.

Developments in the course of the present proceedings

11. The Hellenic Republic replied to the reasoned opinion on 12 March 2008, that is to say, two days after the Commission had brought the present action, stating that a legislative drafting committee had been convened to draw up a draft amending law.
12. It is also apparent from the oral argument that the Hellenic Republic sent to the Commission a first draft of an amending law on 7 May 2008, in accordance with Article 8 of Directive 98/34. The Commission submitted observations in a detailed opinion of 1 August 2008, to which the Hellenic Republic has not replied. However, a meeting between the parties was held in Athens on 1 December 2008.
13. The representative of the Hellenic Republic also indicated that a new draft amending law was to be approved shortly by the Greek Government, prior to notification to the Commission, for examination of its provisions in accordance with Article 8 of Directive 98/34. On completion of that procedure, the draft law would have to be voted on in Parliament, with a view to its adoption.

The failure to fulfil obligations

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-03/04 Commission v Germany [2007] ECR I-6153, paragraph 19 and the case'law cited).
16. In the present case, it is quite clear that, by the date on which the two-month period laid down in the reasoned opinion of 29 June 2007 expired, the Hellenic Republic had not taken any of the measures necessary for compliance with the judgment in Case C-5/05 Commission v Greece, since the draft of a first measure designed to comply with that judgment was not notified to the Commission until 7 May 2008.
17. In those circumstances, it must be held that, as it itself acknowledges, the Hellenic Republic has failed to fulfil its obligations under Article 228(1) EC.

Financial penalties

The periodic penalty payment

Arguments of the parties

18. On the basis of the method of calculation set out in its communication of 13 December 2005 on the application of Article 228 of the EC Treaty (SEC(2005) 1658), the Commission proposes that the Court impose on the Hellenic Republic a penalty payment of EUR 31 798.80 for each day of delay in complying with the judgment in Case C-65/05 Commission v Greece, in order to punish such non'compliance, from the date on which judgment is delivered in the present case until such time as the judgment in Case C-65/05 Commission v Greece has been complied with.
19. The Commission submits that an order imposing a periodic penalty payment is the most appropriate instrument for bringing as soon as possible to an end the infringement established and that, in the present case, a penalty payment of EUR 31 798.80 for each day of delay properly reflects the seriousness and duration of the infringement, while at the same time having regard to the need to make the penalty effective. That sum is calculated by multiplying a uniform basic amount of EUR 600 by a coefficient of 11 (on a scale of 1 to 20) to take account of the seriousness of the infringement, by a coefficient of 1.1 (on a scale of 1 to 3) to take account of the duration of the infringement, and by a coefficient of 4.38 (based on the gross domestic product of the Member State in question and the weighting of votes within the Council of the European Union), which is deemed to reflect the capacity of the Member State concerned to pay.
20. As regards the seriousness of the infringement, the Commission observes that the national rules at issue infringe three of the four fundamental freedoms provided for by the Treaty. It also submits that the Greek authorities have not fulfilled their obligations under the first subparagraph of Article 8(1) of Directive 98/34 and that, furthermore, they did not cooperate fully with the Commission in the pre-litigation phase of the procedure initiated under Article 228 EC.
21. The Hellenic Republic contends that the coefficient deemed to take account of the seriousness of the infringement established has been set at an extremely high level by the Commission and that it should not exceed 4. In that regard, it maintains that the infringement affected only a small sector of activity, that the national rules at issue are applied without discrimination and that, moreover, they represent the most appropriate solution to the economic and social problems caused by the unhealthy and uncontrolled way in which games are being exploited, with the result that the rules are justified by overriding reasons in the public interest. In addition, referring to the case'law of the Court, the Hellenic Republic contends that the coefficient in question infringes the principle of proportionality.
22. As regards the duration of the infringement, the Commission takes into account the period of 11 complete months from delivery of the judgment in Case C-5/05 Commission v Greece until 17 October 2007, the date on which it decided to bring the present action.
23. The Hellenic Republic claims that that coefficient should be reduced to a basic rate. It maintains that the infringement in fact started on expiry of the three-month period set in the letter of 11 December 2006, in which the Commission asked for information on the situation concerning compliance with the judgment in Case C-5/05 Commission v Greece.

Findings of the Court

24. Since it has been established that the Hellenic Republic has failed to comply with the judgment in Case C-5/05 Commission v Greece, the Court may, under the third subparagraph of Article 228(2) EC, impose a lump sum or penalty payment on it.
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-0/06 Commission v Portugal [2008] ECR I-1, paragraph 31 and the case'law cited).
26. In the present case, as stated in paragraph 18 above, the Commission asks the Court to impose on the Hellenic Republic, inter alia, a periodic penalty payment of EUR 31 798.80.
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-78/01 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-04/02 Commission v France [2005] ECR I-6263, paragraph 85, and Case C-77/04 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-04/02 Commission v France, paragraph 91, and Case C-77/04 Commission v France, paragraphs 59 and 60).
29. In the present case, it must be stated that, during the hearing at the Court on 29 January 2009, the Hellenic Republic's agent confirmed that no legislative provision putting an end to the infringement established by the judgment in Case C-5/05 Commission v Greece had yet been voted on, let alone come into force.
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).
33. As regards, first, the seriousness of the infringement and, in particular, the effects on public and private interests of the failure to comply with the judgment in Case C-5/05 Commission v Greece, it must be held that the prohibition of the installation, operation and use of all electrical, electromechanical and electronic games, including all computer games, on all public or private premises apart from casinos, as laid down by the national legislation at issue in the case which led to that judgment, infringes the principles of the free movement of goods, the freedom to provide services and freedom of establishment as provided for in Articles 28 EC, 43 EC and 49 EC.
34. As the Court noted in paragraphs 29, 30, 51 and 55 of the judgment in Case C-5/05 Commission v Greece, those national rules did not only lead to a reduction in the volume of imports of such games from other Member States, but actually caused those imports to stop when that prohibition came into force. In addition, those rules prevent traders from other Member States from providing their services, or even establishing themselves in Greece for that purpose.
35. Furthermore, as the Advocate General has noted in point 54 of his Opinion, the Hellenic Republic has not taken any measures to suspend application of the legislation at issue in Case C-5/05 Commission v Greece, and has therefore made traders subject to financial and custodial penalties on the basis of that legislation. It is therefore essential that the Hellenic Republic amend that legislation.
36. Lastly, account must also be taken of the fact that the infringement established in the judgment in Case C-5/05 Commission v Greece is based on the failure to notify technical regulations as provided for in Article 8 of Directive 98/34. Compliance with that particular obligation was an essential precondition for full attainment of the objective pursued by that directive, as set out in recitals 2 and 3 in the preamble thereto, of promoting the smooth functioning of the internal market.
37. In addition, the purpose of the national rules at issue in Case C-5/05 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.
39. As regards, second, the duration of the infringement, that must be appraised by reference to the time at which the Court assesses the facts in the proceedings brought under Article 228 EC, not the time at which the case is brought before it by the Commission (see Commission v Portugal, paragraph 45).
40. In the present case, the Hellenic Republic's failure to fulfil its obligation to comply with the judgment in Case C-5/05 Commission v Greece has lasted for more than two years, account being taken of the time that has elapsed since 26 October 2006, the date on which that judgment was delivered.
41. In those circumstances, a coefficient of 1.5 (on a sliding scale of 1 to 3) appears appropriate in order to take account of the duration of the infringement.
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).
43. In the present case, the coefficient of 4.38 suggested by the Commission, and referred to in the communication of 13 December 2005 on the application of Article 228 of the EC Treaty, adequately reflects the evolution of the factors which form the basis of the evaluation of the Hellenic Republic's capacity to pay.
44. That is also true of the basic amount to which the multiplier coefficients are applied, which must be set at EUR 600.
45. In the light of all of the above, the multiplication of a basic amount of EUR 600 by coefficients, set at 8 for the seriousness of the infringement, at 1.5 for the duration of that infringement, and at 4.38 for the capacity of the Member State concerned to pay, amounts, in the present case, to a total of EUR 31 536 per day of delay. That amount must be regarded as adequate in the light of the purposes served by the periodic penalty payment as referred to in paragraph 28 above.
46. In the light of all of the foregoing considerations, the Hellenic Republic must be ordered to pay to the Commission, into the account 'European Community own resources', a penalty payment of EUR 31 536 for each day of delay in implementing the measures necessary for compliance with the judgment in Case C-5/05 Commission v Greece, from the delivery of judgment in the present case until the day on which the judgment in Case C-5/05 is complied with.

The lump sum payment

Arguments of the parties

47. The Commission proposes that the Court order the Hellenic Republic to make a lump sum payment of EUR 9 636 for each day of delay in complying with the judgment in Case C-5/05 Commission v Greece, from the day on which the judgment in that case was delivered until the day on which it has been fully complied with or until judgment is delivered in the present case, if the judgment in Case C-5/05 Commission v Greece has not been fully complied with by that date.
48. That daily amount is arrived at by multiplying a basic amount of EUR 200 by the coefficient for seriousness of the infringement, set in this case at 11 on a scale of 1 to 20, and by the coefficient reflecting the Hellenic Republic's capacity to pay, set at 4.38.
49. The total lump sum payment requested amounts to EUR 3 420 780, which is arrived at by multiplying the daily amount of EUR 9 636 by 355, that it to say, by the number of days between 26 October 2006, the date on which the judgment in Case C-5/05 Commission v Greece was delivered, and 17 October 2007, the date on which the Commission decided to bring the present action.
50. The Hellenic Republic contends that it should not be ordered to pay a lump sum, inasmuch as that financial penalty relates to its past conduct. Furthermore, in its view, the amount of the lump sum proposed by the Commission is disproportionate in relation to the seriousness and duration of the infringement and is excessive, particularly in view of the problematical nature of the rules on gaming in Greece.

Findings of the Court

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-21/07 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-21/07 Commission v France, paragraph 64 and the case-law cited).
53. In a situation such as that which is the subject of the present action, in light of the fact that the breach of obligations has persisted for a long period since the judgment which initially established it, of the public and private interests at issue, of the lack of a decision to suspend application of the legislation in question in order to prevent criminal prosecutions, and of the lack of any tangible move to undertake compliance with that judgment, payment of a lump sum must be imposed.
54. In the light of the foregoing considerations, the circumstances of the case are fairly assessed by setting the amount of the lump sum which the Hellenic Republic will have to pay at EUR 3 million.
55. The Hellenic Republic must therefore be ordered to pay to the Commission, into the 'European Community own resources' account, a lump sum of EUR 3 million.

Costs

56. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has asked for costs and the Hellenic Republic has failed in its submissions, the Hellenic Republic must be ordered to pay the costs.

On those grounds, the Court (Second Chamber) hereby:

1. Declares that, by not amending Articles 2(1) and 3 of Law No 3037/2002, laying down a prohibition, subject to the criminal and administrative penalties set out in Articles 4 and 5 of that law, on the installation and operation on all public or private premises, apart from casinos, of all electrical, electromechanical and electronic games, including all computer games, in accordance with Articles 28 EC, 43 EC and 49 EC and Article 8 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, the Hellenic Republic has not taken all the measures necessary to comply with the judgment of the Court of 26 October 2006 in Case C-5/05 Commission v Greece and has thus failed to fulfil its obligations under Article 228 EC;

2. Orders the Hellenic Republic to pay to the Commission of the European Communities, into the 'European Community own resources' account, a penalty payment of EUR 31 536 for each day of delay in implementing the measures necessary to comply with the judgment in Case C-5/05 Commission v Greece, from delivery of the present judgment until the judgment in Case C-65/05 Commission v Greece has been complied with;

3. Orders the Hellenic Republic to pay to the Commission of the European Communities, into the 'European Community own resources' account, a lump sum of EUR 3 million;

4. Orders the Hellenic Republic to pay the costs.

[Signatures]

---

* Language of the case: Greek.