For the fifth time, the EU Court of Justice has handed down a ruling against Greece for failure to transpose a directive within the required time limit and failure to comply with an earlier court judgement. On 31 March, the court ordered a penalty payment of €31 million against Athens for failure to comply with its 2007 judgement (1) ordering it to adopt laws, regulations and administrative provisions necessary to comply with Council Directive 2004/80/EC of 29 April 2004 on compensation for crime victims. This legislation sets up a cooperation system meant to facilitate victims' access to compensation in cross-border situations.
In October 2009, the Commission brought a second action against Greece for failure to fulfil its obligations given its non-compliance with the 2007 judgement; it asked the court to impose a penalty payment of €72,532.80 per day of delay and a lump sum of €10,512 per day for the period between the first ruling and the ruling in this case or the adoption of implementing measures, whichever came first. After Greece published a law, in December 2009, providing for full implementation of the 2007 judgement, the Commission abandoned the application for a penalty payment.
The court pointed out that when ruling on a request for the order of a lump sum, it must take into consideration all circumstances of the state's failure, including its attitude and the duration and seriousness of the infringement. The court took account of the infringement's duration of 29 months and the important impact of this delay, which undermines a fundamental freedom, namely the free movement of persons in a single area of freedom, security and justice. It also took into consideration the payment capacity of this member state. The court ordered Greece to pay the amount of €3 million to the Commission's 'European Union own resources' account.
The judgements against Greece:
- C-387/97 (failure to transpose two directives on toxic and hazardous waste): penalty payment of €20,000
- C-65/05 and C-109/08 (prohibition on the installation and operation of games in public places and non-suspension of criminal prosecution): penalty payment of €31,536 and fine of €3 million
- C-568/07 (entry into force of the law on freedom of establishment): fine of €1 million
- C- 369/07 (failure to reimburse illegal aid): penalty payment of €16,000 and fine of €2 million
In cases of non-compliance with Court of Justice rulings, member states can be ordered, based on a second legal action by the Commission, to pay two types of pecuniary sanctions as incentive to end the infringement: fines and penalty payments. Introduced in 1992 by the Maastricht Treaty, this provision was reinforced by Article 260 TFEU (ex-Article 228 EC).
Penalty payments are intended to give the state an incentive to cease the infringement without delay. They are set so as to be suited to the circumstances and proportional to the failure established as well as to the member state's payment capacity. To ensure the coercive nature of the penalty, the court takes into consideration the duration of the infringement, its gravity and the state's capacity.
The lump sum aims to sanction the past behaviour of a member state that has not implemented the court's judgement for failure to fulfil obligations, with a view to deterring states from adopting similar behaviour in the future. The court considers that payment of a lump sum is justified when the existence of aggravating circumstances has been convincingly established.
On 12 July 2005 (judgement in C-304/02), the court held that these two sanctions are complementary and that they can be combined when the failure has occurred over a long period and tends to persist.
By Sophie Mosca
source: EUROPOLITICS
