Back in October 2004, the European Court of Justice (ECJ) ruled that Portugal had failed to correctly implement the 1989 Procurement Remedies Directive (89/665/EEC) in respect of the availability of damages for persons harmed by infringements of the EC procurement rules. The requirement under Portuguese law that damages would only be payable where there was proof of fault or willful misconduct was found to hinder third parties from bringing an action in damages. After Portugal failed to adopt measures to comply with that Judgment, the European Commission took an action before the ECJ seeking enforcement and requesting that Portugal be fined for non-compliance. In his Opinion of 9 October 2007, Advocate General Mazak has recommended that Portugal be given a daily penalty payment until it complies. The level of the fine would be calculated by considering the seriousness and duration of the infringement as well as Portugal's ability to pay the fine. A final decision now rests with the ECJ.