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Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Commission v Greece (Law governing the institutions) [2009] EUECJ C-109/08_O (12 March 2009)
URL: http://www.bailii.org/eu/cases/EUECJ/2009/C10908_O.html
Cite as: [2009] EUECJ C-109/08_O, [2009] EUECJ C-109/8_O

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IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.


OPINION OF ADVOCATE GENERAL

BOT

delivered on 12 March 2009 (1)

Case C-109/08

Commission of the European Communities

v

Hellenic Republic

(Failure of a Member State to fulfil obligations Judgment of the Court finding that the Hellenic Republic failed to comply with Articles 28 EC, 43 EC and 49 EC and Article 8 of Directive 93/34/EC Non'implementation Article 228 EC Pecuniary penalties)





  1. The present application has been brought by the Commission of the European Communities against the Hellenic Republic under Article 228 EC.

  2. The Commission criticises that Member State for failing to comply with the Court's judgment of 26 October 2006 in Commission v Greece. (2) In that judgment, the Court held that the defendant had failed to fulfil its obligations under Articles 28 EC, 43 EC and 49 EC and Article 8 of Directive 98/34/EC (3) by introducing into its national legislation a prohibition, subject to criminal or administrative penalties, 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.

  3. The Commission asks the Court of Justice to declare that the Hellenic Republic has not complied with that judgment and order it to pay a penalty payment and a lump sum payment.

  4. In this Opinion, I shall affirm that the Hellenic Republic has in fact failed to fulfil its obligations under Article 228 EC and shall propose that the Court therefore order it to pay a penalty payment and a lump sum payment.

    5. I Legislative background

    A The Community legislation

    1. The EC Treaty

  5. Article 28 EC prohibits quantitative restrictions on imports and all measures having equivalent effect between Member States.

  6. The first paragraph of Article 43 EC prohibits restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State.

  7. Finally, the first paragraph of Article 49 EC prohibits restrictions on the freedom to provide services within the European Community in respect of nationals of Member States who are established in a country of the Community other than that of the person for whom the services are intended.

    8. 2. Secondary legislation

  8. The aim of Directive 98/34 is to ensure greater transparency as regards initiatives adopted by the Member States in relation to technical standards and rules. By requiring the Member States to communicate to the Commission any draft technical regulations, that directive seeks to eliminate obstacles to trade resulting from rules of that kind.

  9. Article 1 of the directive provides:

    10. 'For the purposes of this directive, the following meanings shall apply:
    ...

    (11) 'Technical regulation': technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 10, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider.

    ...'

  10. The first subparagraph of Article 8(1) of Directive 98/34 is worded as follows:

    11. 'Subject to Article 10, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where these have not already been made clear in the draft.'

    B The national rules applicable to electrical, electromechanical and electronic games

  11. Article 1 of Law No 3037/2002, (4) entitled 'Categories of game', is worded as follows:

    12. 'For the purposes of the provisions of this law, the following meanings shall apply:

    (a) 'mechanical game', a game the operation of which requires the player to exert physical force;

    (b) 'electrical game', a game the operation of which requires electrical support systems;

    (c) 'electromechanical game', a game the operation of which requires both electrical support systems and the exertion of physical force by the player;

    (d) 'electronic game', a game the operation of which requires, in addition to electrical, electronic or other support systems, the presence and the running of software (a computer program);

    (e) 'recreational game of skill', a game the outcome of which depends solely on the player's skill and mental abilities and which is played solely for recreational purposes.

    Card games considered to be 'games of skill' under the provisions of Royal Decree [consolidated] No 29/1971 shall be included in the category of recreational games of skill.'
  12. Article 2(1) of that Law, entitled 'Prohibition on the use or installation of games', provides:

    13. 'The use of the games referred to in Article 1(b), (c) and (d), 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.'
  13. Article 3 of the same law, entitled 'Undertakings providing internet services', provides:

    14. 'The installation and operation of computers in undertakings providing internet services is not subject to the prohibition in Article 2. However, operating games on those computers, irrespective of the method used, is prohibited.
    The operation of an undertaking providing internet services is subject to special authorisation issued by the municipality in which the undertaking is situated and, where it is operated from a ship, the port authority of the port of departure. When this measure is first implemented, the undertaking must be equipped with that authorisation within a period of three months of the entry into force of this law.'
  14. Under Article 4 of Law No 3037/2002, entitled 'Criminal penalties':

    15. '1. Any person operating or managing the centres or other premises covered by Article 2(1) in which games prohibited under the provisions of the earlier articles are used or installed shall be punished by a term of at least three months' imprisonment and a fine of at least EUR 5 000. A second or subsequent offence shall be punished by a term of at least one year's imprisonment and a fine of EUR 25 000 to EUR 75 000. The Court shall also order the confiscation of the games machines.
    ...'
    II The origin of the dispute

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

  15. In paragraph 1 of the operative part of the judgment in Case C-65/05 Commission v Greece, the Court of Justice held that:

    16. '... 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].'

    B The pre-litigation procedure

  16. Having been asked by the Commission on 11 December 2006 to report on the implementation of the judgment in Case C-65/05 Commission v Greece, the Hellenic Republic replied by letter of 12 February 2007. In that letter, the Greek authorities gave no specific information concerning any amendment of the national rules at issue intended to ensure compliance with the Court's judgment. On the contrary, the Member State emphasised the seriousness and complexity of the matter, stating that the relevant ministries were cooperating in order to introduce acceptable rules complying with Community law and the principle of proportionality.

  17. The Commission, taking the view that the Hellenic Republic had not taken the necessary measures to comply with the judgment in Case C-65/05 Commission v Greece, sent a letter of formal notice to that Member State, pursuant to Article 228 EC, on 23 March 2007.

  18. The Hellenic Republic did not reply to that letter and therefore, 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 its notification.

  19. Since the Hellenic Republic did not reply to the reasoned opinion or give notice of any legislative measure intended to ensure compliance with that judgment, the Commission, considering that in those circumstances the Hellenic Republic had failed to comply with the judgment in Case C-65/05 Commission v Greece, brought the present action on 10 March 2008.

    20. III The course of the procedure before the Court
  20. In its application, the Commission, in essence, asks the Court to find that the Hellenic Republic has failed to fulfil its obligations under Article 228(1) EC.

  21. It claims that the Court should:

    22. declare that, by failing to take all the measures necessary to comply with the judgment in Case C-65/05 Commission v Greece, 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;

    order the Hellenic Republic to pay to the Commission a penalty payment of EUR 31 798.80 for each day of delay in complying with that judgment from the day when judgment is delivered in the present case until the day when the judgment delivered in Case C'65/05 Commission v Greece has been fully complied with;

    order the Hellenic Republic to pay to the Commission a daily lump sum of EUR 9 636 for each day of delay in complying with the judgment in Case C-65/05 Commission v Greece, from the day when that judgment was delivered until the day when that judgment has been fully complied with (if that occurs before judgment is delivered in the present case) or until the day on which judgment is delivered in the present case (if the judgment in Case C-65/05 Commission v Greece has not been fully complied with by that time); and

    order the Hellenic Republic to pay to the costs.

  22. In its defence, the Hellenic Republic contends that the Court should dismiss the action and order the Commission to pay the costs.

  23. It is clear from the file that the Hellenic Republic sent its response to the reasoned opinion on 12 March 2008, two days after the Commission brought this action. It informs the Commission that a legislative drafting committee has been convened to draw up a draft amending law.

  24. It is also apparent from the oral argument presented at the hearing that the Hellenic Republic sent the Commission a first draft of an amending law in May 2008, in accordance with Article 8 of Directive 98/34. The Commission then submitted observations in a reasoned opinion dated 1 August 2008, to which the Hellenic Republic has not replied. However, a meeting between the parties was held in Athens in December 2008.

  25. The representative of the Hellenic Republic also indicated that a new draft amending law should be approved shortly by the Government, before being notified to the Commission, for re-examination of its provisions under 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.

    26. IV The failure to fulfil obligations

    A Arguments of the parties

  26. The Commission observes that, as at the date on which it brought its action, the Hellenic Republic had not notified any legislative measure designed to ensure compliance with the judgment in Case C-65/05 Commission v Greece. Consequently, the Commission asks the Court to declare that the Hellenic Republic has failed to fulfil its obligation and to impose on it a penalty payment and a lump sum payment.

  27. The Hellenic Republic does not deny its infringement. It contends, however, that the Commission's application should be dismissed because the judgment in Case C-65/05 Commission v Greece should be complied with before the conclusion of the present proceedings. In any event, the Hellenic Republic contends that the pecuniary penalties should be reduced in order to take account of the seriousness of the social and economic problems which justified the adoption of the national rules at issue.

    28. B Assessment

  28. Article 228 EC does not specify the period within which a judgment must be complied with. However, as the Court recently pointed out in its judgment of 9 December 2008 in Commission v France, (5) 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. (6)

  29. According to the Court, 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. (7)

  30. In this instance, it is obvious that, by the date on which the period of two months laid down in the reasoned opinion of 29 June 2007 expired, the period prescribed for compliance with the judgment in Case C-65/05 Commission v Greece, requiring amendment of the national rules at issue in accordance with Articles 28 EC, 43 EC and 49 EC and Article 8 of Directive 98/34, had long since elapsed, as almost 10 months had passed since the delivery of that judgment.

  31. Moreover, it seems that, by the time that deadline had expired, the Hellenic Republic had not taken any steps to comply with that judgment. It is apparent from the submissions made at the hearing that the first measure adopted in order to comply with the judgment in Case C-65/05 Commission v Greece was not notified to the Commission until May 2008.

  32. In those circumstances, it must be held that, as it moreover itself acknowledges, the Hellenic Republic has failed to fulfil its obligations under Article 228(1) EC.

    33. V The pecuniary penalties for failure to fulfil obligations
  33. Since I have concluded that the Hellenic Republic has failed to comply with the judgment in Case C-65/05 Commission v Greece, the Court may, under the third subparagraph of Article 228(2), impose a penalty payment and/or lump sum on it.

  34. The aim of that procedure is to encourage the defaulting Member State to comply with a judgment establishing its infringement and, thereby, ensure effective application of Community law.

  35. A penalty payment is essentially coercive in nature. It is intended to place a Member State which fails to comply with its obligation to comply with a judgment for failure to fulfil obligations under an economic constraint in order to prompt it to bring the infringement to an end within a very short period. The Court thus imposes a penalty payment where a Member State has not yet complied with the judgment which originally established its infringement.

  36. The imposition of a lump sum is based more on an assessment of the effects on 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 since the judgment establishing it was delivered.

  37. According to settled case-law, the Court determines the amount of the penalty payment or lump sum payment so that it is appropriate to the circumstances of the case and is proportionate to the breach that has been established and the ability to pay of the Member State concerned. (8)

  38. As the Court held in its judgment of 12 July 2005 in Commission v France, (9) recourse to both types of penalty is not precluded, in particular where the breach of obligations both has continued for a long period and is inclined to persist.

  39. In all such cases, it is for the Court to assess the appropriateness of imposing a pecuniary penalty and to choose the penalty most appropriate to the circumstances of the case. In that regard, the Court has held on numerous occasions that it is not bound by the method for calculating pecuniary penalties laid down by the Commission in its Communication of 13 December 2005, (10) which merely constitutes a useful point of reference. (11)

    40. A The imposition of a penalty payment

    1. Arguments of the parties

  40. The Commission has asked the Court to 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 from the date on which judgment is delivered in the present case until full compliance with the first judgment.

  41. To that end, the Commission relied on the calculation method set out in its 2005 Communication. That daily amount is arrived at, as provided for in that calculation method, by multiplying a flat-rate amount of EUR 600 by a coefficient reflecting the seriousness of the infringement, in this case fixed at 11 on a scale of 1 to 20, by a coefficient reflecting the duration of the infringement, in this case 1.1 on a scale of 1 to 3, and by a factor 'n', reflecting the capacity of each Member State to pay, that factor being fixed in the case of the Hellenic Republic at 4.38.

  42. 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 maintains that the Hellenic authorities have not fulfilled their obligations under the first subparagraph of Article 8(1) of Directive 98/34 and that, furthermore, they did not fully cooperate with the Commission in the pre-litigation phase of the procedure initiated under Article 228 EC. The Commission thus proposes a coefficient for seriousness of 11 (on a scale of 1 to 20).

  43. The Hellenic Republic contends that the coefficient for seriousness is extremely high and should not exceed 4. In that regard, the defendant submits that the infringement affected only a small sector of activity, that the national rules at issue were applied without discrimination and that, moreover, they represented the most appropriate solution to the economic and social problems caused by the unhealthy and uncontrolled way in which games were being exploited, so that it was justified by overriding public-interest reasons. Finally, the Hellenic Republic contends that the coefficient for seriousness proposed by the Commission infringes the principle of proportionality. It relies in that regard on a comparison of its situation with that of Member States found, in other cases, to have infringed Article 226 EC.

  44. As regards the duration of the infringement, the Commission states that it is 11 months, reckoned from delivery of the judgment in Case C-65/05 Commission v Greece to the day on which it decided to bring the present action.

  45. The Hellenic Republic submits that the coefficient should be reduced to a floor rate. It maintains that the infringement in fact started on expiry of the period of three months set in the letter of 11 December 2006, in which the Commission asked the Greek authorities for information as to the extent to which the judgment in Case C-65/05 Commission v Greece, had been complied with. The Hellenic Republic also refers to the duration of the infringement committed by the French Republic that was examined in Case C-304/02 Commission v France, which was much longer and for which the coefficient for duration was 3. (12)

    46. 2. Assessment

  46. In view of the nature of the infringement at issue, which is still continuing, I consider that the imposition of a penalty payment is the course of action most appropriate to the circumstances of the present case.

  47. As I have indicated, the penalty payment must facilitate compliance as rapidly as possible with the earlier judgment establishing an infringement of Community law. Its amount must be decided upon according to the degree of persuasion needed for the Member State in question to alter its conduct. (13)

  48. In exercising its discretion, it is for the Court to set the penalty payment so that it is both appropriate to the circumstances and proportionate to the infringement that has been established and the ability to pay of the Member State concerned. (14)

  49. Relying very largely on the criteria and mathematical variables set out by the Commission in its 2005 Communication, the Court thus takes into account the degree of seriousness of the infringement, its duration and the ability of the Member State in question to pay. In applying those criteria, the Court also takes account of the effects of failure to comply on private and public interests and the degree of urgency of persuading the Member State concerned to fulfil its obligations. (15)

  50. 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-65/05 Commission v Greece, I consider that the Hellenic Republic's persistent infringement is particularly serious, for two reasons.

  51. First, as held by the Court in that judgment, the national rules at issue infringe the principle of the free movement of goods and the principles of freedom to provide services and freedom of establishment in the European Union, that is to say, three of the four fundamental freedoms upheld by the Treaty.

  52. The result of the rules in question is to decrease the volume of imports of games which are lawfully manufactured and marketed in the other Member States. Such rules are also liable to render more difficult, or even prevent, the supply of services by providers established in other Member States regarding the operation of gaming machines and may, ultimately, dissuade economic operators from those States from establishing themselves in Greece.

  53. It is clear that, by not complying with the judgment in Case C-65/05 Commission v Greece, the Hellenic Republic affects, to a considerable extent, public interests and, in any event, the private interests of importers by reason of the very wide nature of the prohibition in question.

  54. Secondly, the infringement is, in my view, all the more serious because, as became clear at the hearing, the Hellenic Republic has not suspended the application of its rules, thereby making economic operators subject to pecuniary and custodial penalties.

  55. Finally, the failure to fulfil the more specific obligation of notifying drafts of technical regulations to the Commission, as provided for in Article 8 of Directive 98/34, must be regarded as serious, in so far as compliance with that obligation was an essential precondition for full attainment of the objectives pursued by that directive.

  56. In view of the foregoing, the coefficient for seriousness of 11 (on a scale of 1 to 20) adopted by the Commission does not seem to me to be the result of any error of assessment.

  57. As regards, secondly, the coefficient for duration of the infringement, I would observe that the Commission calculated that coefficient, on the basis of 1.10 per month, by reference to the date on which the judgment in Case C-65/05 Commission v Greece was delivered, namely 26 October 2006, and to the date on which it decided to bring the present action, namely, according to its pleadings, 17 October 2007.

  58. According to the case-law of the Court, 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. (16) In any event, I would point out that the Court is not bound by the scale of 1 to 3 proposed by the Commission. (17)

  59. In the present case, I note that the Hellenic Republic's infringement has lasted for 27 months, since the judgment in Case C-65/05 Commission v Greece was delivered on 26 October 2006 and the hearing in this case was held on 29 January 2009. As admitted by the Hellenic Republic's representative at the hearing, compliance with that judgment could in fact have been achieved within a shorter period.

  60. It seems to me that compliance with the judgment in Case C-65/05 Commission v Greece called only for a very limited amendment of the national rules at issue, the main action needed being to limit the scope of those rules so as to apply only to recreational games that could be converted into games of chance.

  61. In view of the foregoing, I consider that a coefficient of 1.1 appears appropriate to take account of the duration of the infringement.

  62. As regards, thirdly, 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 of the European Union, the Court has repeatedly held that it is an appropriate way of reflecting that Member State's ability to pay, while keeping the variation between Member States within a reasonable range. (18) In this case, the coefficient established for the Hellenic Republic in the 2005 Communication is 4.38.

  63. In view of the foregoing, I propose that the Court multiply the coefficients for seriousness, duration and the Member State's ability to pay by the basic amount of EUR 600, as suggested by the Commission. (19)

  64. In view of the foregoing considerations, multiplication of the basic amount of EUR 600 by the coefficients decided upon, namely 11 for the seriousness of the infringement, 1.1 for its duration and 4.38 for the Hellenic Republic's ability to pay, produces, in this case, an amount of EUR 31 798.80 per day of delay.

  65. As regards, fourthly, the frequency of the penalty payment, I consider that it should be imposed on a daily basis, since the infringement in question relates to compliance with a judgment of the Court involving adoption of a draft amending law. (20)

  66. In view of the foregoing, I suggest that the Court order the Hellenic Republic to pay to the Commission, into the 'European Community Own Resources' account, a penalty payment of EUR 31 798.80 for each day of delay in taking the measures necessary to ensure full compliance with the judgment in Case C-65/05 Commission v Greece from the delivery of the judgment to be given in the present case until full compliance with the first judgment.

    67. B Imposition of a lump sum payment

    1. Arguments of the parties

  67. The Commission has proposed that the Court impose on the Hellenic Republic a lump sum payment of EUR 9 636 for each day of delay in complying with the judgment in Case C-65/05 Commission v Greece, from the day on which that judgment was delivered until the day on which that judgment has been fully complied with or until judgment is delivered in the present case (if the judgment in Case C-65/05 Commission v Greece has not been fully complied with by that time).

  68. That daily amount is arrived at by multiplying a basic amount of EUR 200 by the coefficient for seriousness of the infringement, in this case 11 on a scale of 1 to 20, and by factor 'n', which reflects the capacity of the Hellenic Republic to pay and is set at 4.38.

  69. The Commission's view is that the total lump sum payment to be imposed on the Hellenic Republic should be EUR 3 420 780. That amount is arrived at by multiplying the daily amount of the lump sum, namely EUR 9 636, by the number of days between the date on which the judgment in Case C-65/05 Commission v Greece was delivered, namely 26 October 2006, and the date on which the Commission decided to bring the present action, namely 17 October 2007, that is to say 355 days.

  70. The Hellenic Republic contends that it should not be ordered to pay a lump sum, since that pecuniary penalty relates to its past conduct. In its view, the lump sum proposed by the Commission is disproportionate in relation to the seriousness and the duration of the infringement and is excessive, regard being had in particular to the problematical nature of the rules on games in Greece.

    71. 2. Assessment

  71. As I have indicated, the lump sum payment is intended to penalise an infringement committed by a Member State in the light of the effects of that infringement and its duration. It is also intended to prevent the repetition of similar infringements of Community law.

  72. The imposition of a lump sum is not automatic and its calculation is not based either on a precise mathematical formula or on a list of predetermined criteria, as may be the case when the Court calculates the amount of the penalty payment.

  73. Nevertheless, the case-law gives us some guidance as to the criteria and the circumstances to be taken into account in calculating the lump sum.

  74. In its recent judgment of 9 December 2008 in Case C-121/07 Commission v France, cited above, the Court stated that the imposition of 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 ...'. (21)

  75. In that case, in calculating the lump sum imposed on the French Republic, the Court took account of the following circumstances:

    76. the French Republic's attitude regarding its Community obligations in the specific area of genetically modified organisms; in that connection, the Court noted that France had repeatedly engaged in unlawful conduct of that kind in that specific sector;

    the period for which the infringement continued following delivery of the judgment establishing the infringement; in that regard, the Court considered whether that delay could be justified, and

    the gravity of the infringement; in that regard, the Court took account of the impact of the unlawful conduct on the relevant public and private interests. (22)

  76. In the present case, it seems to me that the imposition of a lump sum payment is justified principally by the seriousness of the infringement.

  77. As I have stated, the conduct of the Hellenic Republic significantly affects public interests and, in any event, the private interests of economic operators, in that the national rules in question infringe three of the four fundamental freedoms upheld by the Treaty. The present infringement is in my view particularly serious, in that the Hellenic Republic has not suspended the application of those rules, having thereby made, and continuing to make, economic operators subject to pecuniary and custodial penalties.

  78. As regards the period for which the infringement has continued since delivery of the judgment in Case C-65/05 Commission v Greece, the Hellenic Republic has admitted its delay in complying with that judgment and has indicated that compliance could have been achieved more rapidly.

  79. The arguments put forward by the Hellenic authorities to the effect that the delay is justified in view of the sensitive nature of the case and the agitation which would be caused, in Greece, by total liberalisation of games do not seem to me to be acceptable, in so far as there is nothing in the file to distinguish the particular situation of the Hellenic Republic from that of the other Member States. Moreover, it should be remembered that, according to settled case'law, a Member State may not plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under Community law. (23)

  80. As regards, finally, the question of attitude, it seems to me that the Hellenic Republic adopted a rather passive attitude until commencement of the pre-litigation phase of the present procedure. Indeed, it was not until two days after the present action was brought by the Commission, namely on 12 March 2008, that the Hellenic Republic indicated that a legislative drafting committee had been convened to prepare a draft amending law.

  81. In view of all the foregoing considerations, it seems to me that the order that the Hellenic Republic pay a lump sum of EUR 2 million represents a fair assessment of the circumstances of this case.

    82. VI Costs
  82. Under the first subparagraph of 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 applied for costs to be awarded against the Hellenic Republic and the latter has been unsuccessful, I consider that it should be ordered to pay the costs.

    83. VII Conclusion
  83. In view of the foregoing considerations, I propose that the Court:

    84. declare that, by not amending Articles 2(1) and 3 of Law No 3037/2002 laying down a prohibition, subject to criminal and administrative penalties, 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 rule 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 for compliance with the judgment of the Court of 26 October 2006 in Case C-65/05 Commission v Greece and has thus failed to fulfil its obligations under Article 228 EC;

    order the Hellenic Republic to pay to the Commission of the European Communities, into the 'European Community Own Resources' account, a penalty payment of EUR 31 798.80 for each day of delay in implementing the measures necessary to ensure full compliance with the abovementioned judgment, from the date of delivery of the judgment to be given in the present case until full compliance with the abovementioned judgment;

    order the Hellenic Republic to pay to the Commission of the European Communities, into the 'European Community Own Resources' account, a lump sum of EUR 2 million;

    order the Hellenic Republic to pay the costs.

    1 Original language: French.

    2 Case C-65/05 Commission v Greece [2006] ECR I-10341.

    3 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').

    4 FEK A' 174/30.7.2002.

    5 Case C-121/07 [2008] ECR I-0000.

    6 Paragraph 21 and case-law cited.

    7 Paragraph 22 and case-law cited.

    8 See, in that regard, the judgment in Case C-121/07 Commission v France, paragraph 64 and case-law cited.

    9 Case C-304/02 [2005] ECR I-6263.

    10 Communication from the Commission on the application of Article 228 of the EC Treaty (SEC (2005) 1658) ('the 2005 Communication').

    11 See, to that effect, the judgment in Case C-304/02 Commission v France, (paragraph 103 and case-law cited).

    12 Paragraph 108.

    13 See, to that effect, Case C-177/04 Commission v France [2006] ECR I-2461, paragraph 60 and case-law cited.

    14 Ibid. (paragraph 61 and case-law cited).

    15 Ibid. (paragraph 62 and case-law cited).

    16 Ibid. (paragraph 71).

    17 Ibid.

    18 See, inter alia, Case C-177/04 Commission v France, paragraph 75 and case-law cited.

    19 See, inter alia, Case C-70/06 Commission v Portugal [2008] ECR I-1, paragraph 50, in which the Court approved use of the basic amount of EUR 600, as set in the 2005 Communication.

    20 Ibid. (paragraph 52 and case-law cited).

    21 Paragraph 62.

    22 See also the judgment in Case C-304/02 Commission v France (paragraph 114).

    23 See, in that regard, Case C-121/07 Commission v France (paragraph 72 and case-law cited).

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