8In Case C-70/06Commission v Portugal [2008] ECR I-1 (‘the 2008 judgment’), the Court of Justice held:16. In point 1 of the operative part of the [2004 judgment], the Court held that, by failing to repeal Decree-Law No 48 051, the Portuguese Republic had failed to fulfil its obligations under Article 1(1) and Article 2(1)(c) of Directive 89/665.17. In the context of the present proceedings for failure to comply with obligations, in order to check whether the Portuguese Republic has adopted the measures necessary to comply with the judgment at issue, it needs to be determined whether Decree-Law No 48 051 has been repealed.18.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-304/02Commission v France [2005] ECR I-6263, paragraph 30; Case C-119/04Commission v Italy [2006] ECR I-6885, paragraph 27; and Case C-503/04Commission v Germany [2007] ECR I-6153, paragraph 19).19. In the present case, it is common ground that, on the date of expiry of the period laid down in the reasoned opinion addressed to it on 13 July 2005, the Portuguese Republic had not yet repealed Decree-Law No 48 051.20. In the light of the above, it must be found that, by failing to adopt the measures necessary to ensure compliance with the [2004 judgment], the Portuguese Republic has failed to fulfil its obligations under Article 228(1) EC.…23. [T]he 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 [2004 judgment], 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.24. Consequently, it must be found that, by failing to repeal Decree-Law No 48 051 making the award of damages to persons harmed by a breach of Community law relating to public contracts, or the national laws implementing it, conditional on proof of fault or fraud, the Portuguese Republic has failed to adopt the measures necessary to comply with the [2004 judgment] and has thereby failed to fulfil its obligations under Article 228(1) EC.…30. Having recognised that the Portuguese Republic has not complied with [the 2004 judgment], the Court may, pursuant to the third subparagraph of Article 228(2) EC, impose a lump sum or penalty payment on it.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-304/02Commission v France, paragraph 86, and Case C-177/04Commission v France [2006] ECR I-2461, paragraph 58).32. In the present case … the Commission suggests that the Court should impose a penalty payment on the Portuguese Republic.…36. It must be found, in the present case, that, during the hearing at the Court on 5 July 2007, the agent of the Portuguese Republic confirmed that Decree-Law No 48 051 was still in force on that date.…54. In the light of all of the foregoing, it is necessary to order the Portuguese Republic to pay to the Commission, into the account “European Community own resources”, a penalty payment of EUR 19392 for every day of delay in implementing the measures necessary to comply with the [2004 judgment], from the day of delivery of judgment in the present case until the day on which the [2004 judgment] is complied with.…On those grounds, the Court (First Chamber) hereby:1. Declares that, by failing to repeal Decree-Law No 48 051 of 21 November 1967, making the award of damages to persons injured by a breach of Community law relating to public contracts, or the national laws implementing it, conditional on proof of fault or fraud, the Portuguese Republic has failed to adopt the measures necessary to comply with the [2004 judgment] and has thereby failed to fulfil its obligations under Article 228(1) EC;2. Orders the Portuguese Republic to pay to the Commission of the European Communities, into the account “European Community own resources”, a penalty payment of EUR 19392 for every day of delay in implementing the measures necessary to comply with the [2004 judgment] from the day on which the Court of Justice delivers judgment in the present case until the day on which the [2004 judgment] is complied with.’