Commission v Romania (Lutte contre le blanchiment de capitaux) (Failure of a Member State to fulfil obligations - money laundering or terrorist financing - Judgment) [2020] EUECJ C-549/18 (16 July 2020)

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(Failure of a Member State to fulfil obligations — Article 258 TFEU — Prevention of the use of the financial system for the purposes of money laundering or terrorist financing — Directive (EU) 2015/849 — Failure to transpose and/or to notify transposition measures — Article 260(3) TFEU — Application for an order to pay a lump sum)

ACTION for failure to fulfil obligations under Article 258 and Article 260(3) TFEU, brought on 27 August 2018,

European Commission, represented by T. Scharf, L. Flynn, G. von Rintelen, L. Nicolae and L. Radu Bouyon, acting as Agents,

Romania, represented initially by C.-R. Canţăr, E. Gane, L. Liţu and R.I. Haţieganu, and subsequently by E. Gane, L. Liţu and R.I. Haţieganu, acting as Agents,

Kingdom of Belgium, represented by C. Pochet, P. Cottin and J.-C. Halleux, acting as Agents,

French Republic, represented by A.-L. Desjonquères, B. Fodda and J.-L. Carré, acting as Agents,

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Arabadjiev, A. Prechal, M. Vilaras, L.S. Rossi and I. Jarukaitis, Presidents of Chambers, M. Ilešič, J. Malenovský, L. Bay Larsen, T. von Danwitz, F. Biltgen (Rapporteur), A. Kumin, N. Jääskinen and N. Wahl, Judges,

having regard to the written procedure and further to the hearing on 10 December 2019,

after hearing the Opinion of the Advocate General at the sitting on 5 March 2020,

– declare that, by having failed to adopt, by 26 June 2017 at the latest, the laws, regulations and administrative provisions necessary to comply with Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ 2015 L 141, p. 73), or, in any event, by having failed to notify those provisions to the Commission, Romania has failed to fulfil its obligations under Article 67 of Directive 2015/849;

– impose a periodic penalty payment on Romania pursuant to Article 260(3) TFEU in the amount of EUR 21 974.40 for each day of delay, as from the date of the judgment of the Court, for failure to fulfil its obligation to notify the measures transposing that directive;

– impose the payment of a lump sum on Romania pursuant to Article 260(3) TFEU, on the basis of a daily amount of EUR 6 016.80 multiplied by the number of days which have elapsed between the day following the expiry of the transposition period prescribed in the directive in question and the day on which Romania puts an end to the infringement or, failing such compliance, the date of delivery of the present judgment, with a minimum lump sum of EUR 1 887 000, and

‘1. This Directive aims to prevent the use of the Union’s financial system for the purposes of money laundering and terrorist financing.

2. Member States shall ensure that money laundering and terrorist financing are prohibited.’

‘1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 26 June 2017. They shall immediately communicate the text of those measures to the Commission.

When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.’

4 Since the Commission had not received from Romania any information concerning the adoption and publication of the laws, regulations and administrative provisions necessary to comply with Directive 2015/849, by the expiry of the transposition period prescribed in Article 67 of that directive, namely 26 June 2017, the Commission sent a letter of formal notice to Romania on 19 July 2017.

5 In Romania’s reply, dated 19 September 2017, it became clear that as at that date the measures for transposing that directive were only then being drawn up. On 8 December 2017, the Commission therefore sent a reasoned opinion to Romania, inviting it to adopt the measures necessary to comply with the requirements of Directive 2015/849 within 2 months of receipt of that opinion.

6 Since its requests to extend the deadline for responding to the reasoned opinion of 8 December 2017 had been refused, Romania responded to that opinion by letter of 8 February 2018, informing the Commission that the draft legislation containing the measures for the transposition of Directive 2015/849 would be adopted by the Parliament in May 2018.

7 Considering that Romania had neither adopted the national measures necessary to transpose Directive 2015/849 nor notified those measures, the Commission brought the present action, seeking a declaration from the Court that Romania has failed to fulfil its obligations in the manner alleged and an order that Romania should pay not only a lump sum but also a daily penalty payment.

8 By letter of 28 August 2019, the Commission informed the Court that it was withdrawing part of its action inasmuch as it no longer sought the imposition of a daily penalty payment, since that claim had become devoid of purpose as a result of Directive 2015/849 having been transposed in full into Romanian law with effect from 21 July 2019. At the same time, the Commission clarified that the payment of the lump sum which it sought in the present case amounted to EUR 4 536 667.20 and covered the period from 27 June 2017 to 20 July 2019, that is 754 days on the basis of EUR 6 016.80 per day.

9 By decisions of the President of the Court of 5, 31 and 27 December 2018, the Kingdom of Belgium, the Republic of Estonia, the French Republic and the Republic of Poland, respectively, were granted to leave to intervene in support of Romania.

10 According to the Commission, by having failed to adopt, by 26 June 2017 at the latest, all the laws, regulations and administrative provisions necessary to comply with Directive 2015/849 or, in any event, by having failed to notify those provisions to the Commission, Romania has failed to fulfil its obligations under Article 67 of that directive.

11 The Commission notes, inter alia, that the provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity necessary to satisfy the requirement of legal certainty, and that the Member States cannot rely on domestic circumstances or practical difficulties to justify non-transposition of a directive within the period prescribed by the EU legislature. It is, therefore, incumbent on each Member State to take into account the stages necessary for the adoption of the required legislation that arise in its domestic legal system in order to ensure that transposition of the directive in question can be achieved within the period prescribed.

12 In the present case, the Commission notes, first of all, as regards the national measures notified in October 2018 after the application was lodged — which, in Romania’s view, should be considered to have transposed Directive 2015/849 in part — that Romania has not provided a correlation table showing the relevance of the measures notified and explaining the connection between the provisions of that directive and those measures. The Member States are under the obligation to transmit such an explanatory document.

13 Next, in accordance with the case-law of the Court, where, as in Article 67 of Directive 2015/849, a directive expressly requires that the measures transposing it include a reference to the directive or that such reference is made when they are officially published, it is in any event necessary to adopt specific measures transposing the directive in question (judgment of 11 June 2015, Commission v Poland, C‑29/14, EU:C:2015:379, paragraph 49 and the case-law cited). In the present case, none of the 40 measures notified by Romania in October 2018 refer to Directive 2015/849. Indeed, 37 of those measures were adopted even before that directive was adopted.

14 Lastly, it cannot be maintained, as Romania does, that the transposition of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (OJ 2005 L 309, p. 15), and of Commission Directive 2006/70/EC of 1 August 2006 laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of politically exposed person and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis (OJ 2006 L 214, p. 29), is sufficient to ensure that Directive 2015/849 is transposed, as there are significant differences between those directives, and Directive 2015/849 introduces many new elements. Since the measures notified by Romania in October 2018 do not transpose Directive 2015/849, but Directives 2005/60 and 2006/70, they cannot be taken into consideration in the context of the present proceedings. Consequently, Romanian’s claims concerning the partial transposition of Directive 2015/849 are unfounded.

15 Romania contends that the Commission’s action must be dismissed in part, relying on the partial transposition of Directive 2015/849 effected by the national legislation in force before the period referred to in Article 67 of that directive expired. Romania emphasises that, since the beginning of the pre-litigation procedure, it has made sustained efforts to resolve the present case and has been in active dialogue with the Commission concerning the adoption of the measures necessary to ensure that Directive 2015/849 is transposed in full, with those measures finally entering into force on 21 July 2019.

16 Romania states that, in the context of its cooperation with the Commission, it notified to it, in October 2018, 40 national measures in respect of measures transposing Directive 2015/849, which already existed in the national legal order. Since those 40 measures ensured that Directives 2005/60 and 2006/70 — which were, in large measure, incorporated into Directive 2015/849 which repealed them — were transposed in full, they had to be regarded as transposing Directive 2015/849 in part. It is for the Court to take into account those factors as well as the particular circumstances of the present case and Romania’s conduct.

17 The fact that the 40 measures at issue were not notified to the Commission until after the application had been lodged, and not during the pre-litigation procedure, has no bearing on the fact that the Commission was aware of the existence of those measures even before the transposition period prescribed in Article 67 of Directive 2015/849 had begun to run, since those measures had been notified as measures transposing Directives 2005/60 and 2006/70. Indeed, the correlation table annexed to the defence states clearly and concisely the provisions of Directive 2015/849 considered transposed as well as the corresponding provisions of the national legislation in force. The fact that those same measures do not include a reference to that directive does not preclude them from being transposition measures, because they enable the objectives pursued by that directive to be attained.

18 Since the subject matter of the present action is the total failure to transpose Directive 2015/849 into Romanian law, the Commission’s argument that the measures indicated in the correlation table cannot, in the light of the changes effected by Directive 2015/849, amount to transposition of that directive, should be the subject of another action.

19 According to the settled case-law of the Court, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion, the Court being unable to take account of any subsequent changes (judgments of 30 January 2002, Commission v Greece, C‑103/00, EU:C:2002:60, paragraph 23; of 18 October 2018, Commission v Romania, C‑301/17, not published, EU:C:2018:846, paragraph 42; and of 8 July 2019, Commission v Belgium (Article 260(3) TFEU — High-speed networks), C‑543/17, EU:C:2019:573, paragraph 23).

20 In addition, the Court has repeatedly held that if a directive expressly requires Member States to ensure that the necessary measures transposing the directive include a reference to it or that such reference is made when those measures are officially published, it is, in any event, necessary for Member States to adopt a specific measure transposing the directive in question (see, to that effect, judgments of 27 November 1997, Commission v Germany, C‑137/96, EU:C:1997:566, paragraph 8; of 18 December 1997, Commission v Spain, C‑360/95, EU:C:1997:624, paragraph 13; and of 11 June 2015, Commission v Poland, C‑29/14, EU:C:2015:379, paragraph 49).

21 In the present case, the Commission sent its reasoned opinion to Romania on 8 December 2017, with the result that the two-month period prescribed therein expired on 8 February 2018. The assessment as to whether or not there has been a failure to fulfil obligations as claimed must, therefore, relate to the state of the national legislation in force on that date (see, by analogy, judgment of 8 July 2019, Commission v Belgium (Article 260(3) TFEU — High-speed networks), C‑543/17, EU:C:2019:573, paragraph 24 and the case-law cited).

22 In that regard, first, it is not in dispute that the 40 national measures, which Romania claims ensure the partial transposition of Directive 2015/849, were notified as measures transposing that directive after the period prescribed in the reasoned opinion of 8 December 2017 had expired, more specifically during the month of October 2018.

23 Secondly, in any event, as the Advocate General observed in point 35 of his Opinion, it is established that, contrary to the requirements of Article 67 of Directive 2015/849, those 40 measures contain no reference to that directive.

24 It follows that the measures in question cannot be considered to be a specific act of transposition within the meaning of the case-law mentioned in paragraph 20 above.

25 It must, therefore, be concluded that, on the expiry of the period prescribed in the reasoned opinion of 8 December 2017, Romania had neither adopted the measures necessary to ensure that Directive 2015/849 was transposed nor, therefore, notified those measures to the Commission.

26 Accordingly, it must be held that, by having failed to adopt, on the expiry of the period prescribed in the reasoned opinion of 8 December 2017, the laws, regulations and administrative provisions necessary to comply with Directive 2015/849 and, therefore, by having failed to notify those provisions to the Commission, Romania has failed to fulfil its obligations under Article 67 of that directive.

27 According to the Commission, Article 260(3) TFEU was introduced by the Treaty of Lisbon with the aim of reinforcing the penalty mechanism previously introduced by the Treaty of Maastricht. Given the novel character of Article 260(3) TFEU and the need to preserve transparency and legal certainty, the Commission adopted the communication entitled ‘Implementation of Article 260(3) [TFEU]’ (OJ 2011 C 12, p. 1, ‘the 2011 communication’).

28 The purpose of Article 260(3) TFEU is to give a stronger incentive to Member States to transpose directives within the deadlines laid down by the EU legislature and to ensure that EU legislation is applied.

29 The Commission submits that Article 260(3) TFEU applies both in the case of the total failure to notify any measures to transpose a directive and where there is only partial notification of transposition measures.

30 The Commission further submits that since Article 260(3) TFEU refers to the failure of a Member State to fulfil its obligation to notify ‘measures transposing a directive’, that provision applies not only in the event of failure to notify the national measures transposing a directive, but also in the event of failure to adopt such measures. A purely formalist interpretation of that provision, according to which it aims merely to ensure effective notification of national measures, would not guarantee relevant transposition of all the provisions of the directive in question and would deprive the duty to transpose directives into national law of any meaningful effect.

31 The present case specifically concerns penalties for Romania’s failure to adopt and publish, and therefore to notify to the Commission, all the legal provisions necessary for the transposition of Directive 2015/849 into national law.

32 In response to Romania’s arguments seeking to challenge the applicability of Article 260(3) TFEU to the present case, the Commission submits, in particular, that its decision systematically to request the Court to impose a financial penalty pursuant to that provision cannot be understood as a failure on the Commission’s part to exercise its discretion. Indeed, in point 16 of the 2011 communication, the Commission expressly took account of the fact that that provision confers wide discretionary powers on it, along the lines of the power to decide whether to bring infringement proceedings under Article 258 TFEU. Consequently, the policy decision to make use of the instrument provided for by Article 260(3) TFEU as a matter of principle in all cases of failure to fulfil an obligation covered by that provision was taken in the exercise of the Commission’s discretionary power. Although the Commission does not exclude that particular cases might arise in which a request for penalties under that provision would appear to it to be inappropriate, it makes clear that that is not the case here.

33 As regards Romania’s argument that most Member States had not complied with the deadline for transposing Directive 2015/849, the Commission accepts that, as at the date on which that deadline expired, namely 26 June 2017, only eight Member States had notified to it measures transposing that directive in full. The fact remains, however, that, as at the date on which the present action was brought, namely 27 August 2018, Romania was the only Member State not to have notified any measure transposing Directive 2015/849.

34 Romania contends that the Commission’s action should be dismissed in that it seeks to impose financial penalties on it pursuant to Article 260(3) TFEU, arguing that since Romanian law ensured, as at the date on which the present action was brought, that Directive 2015/849 was transposed in part, this results primarily in the system of penalties provided for in that provision being inapplicable. In the alternative, Romania relies on the need to adjust the financial penalties proposed by the Commission to that situation.

35 Although Romania does not contest the lawfulness of the infringement proceedings brought by the Commission under Article 258 TFEU or those proceedings being conducted before the Court, it contends, by contrast, that in the present case Article 260(3) TFEU is not applicable since that provision, which seeks the accelerated application of a system of penalties relating to an action for failure to fulfil obligations based on Article 258 TFEU, must be interpreted strictly. The objective of that provision is to penalise, at an earlier stage, a manifest failure to fulfil an obligation the manner of compliance with which is indisputable, namely the notification of the measures transposing directives. Article 260(3) TFEU is, therefore, directed at clear infringements in the light of which the prior obtaining of a judgment of the Court declaring the failure to fulfil obligations is only a formal step. The application of that provision should be limited to the situations exhaustively set out in the wording thereof, namely the failure to fulfil ‘the obligation to notify measures transposing a directive’.

36 According to Romania, in applying Article 260(3) TFEU, the Commission’s review should not be restricted merely to the formal finding that national measures transposing the directive in question have been notified. Evidently, the Commission should carry out an overall analysis of the national measures notified and ascertain whether they relate to the field governed by that directive, the period within which they enter into force or whether they apply to the entire territory of the Member State concerned. However, where Member States adopt transposition measures or, as in the present case, prove that such measures, albeit only partial ones, exist, an exchange of arguments between the Commission and the Member State concerned, which cannot be placed on the same footing as a formal step, is as a general rule required in order to establish a failure to fulfil obligations.

37 Romania contends that that interpretation of Article 260(3) TFEU is consistent with the drafting history which led to that provision being adopted and is also apparent when the provision is interpreted literally. In addition, that interpretation is the only one which enables both the principle of legal certainty and the principle of proportionality to be observed, since it establishes a clear separation between, on the one hand, cases where there is a complete absence of transposition and notification measures and, on the other hand, cases where the transposition and notification measures are only partial.

38 As regards the financial penalty sought, Romania notes, first, that the Commission did not state reasons for its decision to request the imposition of such a penalty in the present case. The Commission’s practice of automatically requesting financial penalties to be applied under Article 260(3) TFEU in actions for failure to fulfil the obligation to notify the measures transposing a directive is erroneous and is contrary to the objectives pursued by that provision. It is apparent from the very wording of the provision that the Commission ‘may, when it deems appropriate, specify the amount of the lump sum or penalty payment’ to be paid by the Member State concerned, so that the application of financial penalties is an option open to the Commission, which must analyse each situation individually. Consequently, it is for the Commission to analyse all the factual and legal circumstances of the present case and to state reasons, in the light of those circumstances, for its decision to request the Court to apply financial penalties. Compliance with that obligation is all the more important since it is apparent from Article 260(3) TFEU that the Court may only impose a penalty not exceeding the amount specified by the Commission, so that, in the absence of a proposal of such an amount from the Commission, the Court is precluded from imposing a financial penalty. In the light of the foregoing and taking into account all the factual and legal circumstances of the present case and the fact that the Commission has failed to state reasons for its decision to request the application of financial penalties, Romania contends that such penalties cannot be applied in the present case.

39 Romania contends, secondly, that the imposition of a lump sum constitutes an exception, which applies only when it is apparent from the characteristics of the failure to fulfil obligations at issue, the conduct of the Member State concerned and the assessment of the degree of prejudice to the public and private interests that the application of a periodic penalty payment is insufficient with regard to the objective of putting an end to that failure to fulfil obligations as soon as possible and ensuring that that Member State will not persist in such conduct. Indeed, the Court has held that, in the light of the wording and purpose of Article 260(3) TFEU, an order for the payment of a lump sum should not be made automatically, as the Commission suggests. In the present case, first of all, the Commission has accepted that, in the course of the proceedings before the Court, Romania adopted all the measures necessary to ensure that Directive 2015/849 was transposed in full. Next, even before Legea nr. 129/2019 pentru prevenirea și combaterea spălării banilor și finanțării terorismului, precum și pentru modificarea și completarea unor acte normative (Law No 129/2019 on the prevention and suppression of money laundering and the financing of terrorism, amending and supplementing certain legislative acts), of 11 July 2019 (Monitorul Oficial al României, Part I, No 589 of 18 July 2019), entered into force on 21 July 2019, the provisions of Directive 2015/849 relating to the effects on private and public actors had already been transposed by national legislative acts in force. In addition, for certain obligations laid down in that directive, the transposition period was not yet expired. Lastly, Romania is an average Member State as regards the number of actions for failure to fulfil the obligation to notify the measures transposing directives and thus far has never been found by the Court to have failed to fulfil the obligation to transpose a directive within the prescribed period. Furthermore, the average duration of the pre-litigation procedures involving Romania is the shortest of all the Member States and, in the present case, less than one year elapsed between the commencement of the pre-litigation procedure and the bringing of proceedings before the Court. Consequently, the Commission’s request for a lump sum to be imposed is not only unjustified, but also disproportionate in the light of the facts of the case and the essential aim of that type of financial penalty.

40 The Kingdom of Belgium, the Republic of Estonia and the French Republic contend, in essence, that Article 260(3) TFEU applies only when a Member State has remained totally inactive as regards transposing a directive into national law and has, therefore, failed, within the period prescribed, to take measures to transpose that directive and to notify them to the Commission. In no event should the scope of that provision cover a situation in which a Member State has notified transposition measures to the Commission, but the Commission criticises it for an incorrect or partial transposition of the directive in question.

41 Those Member States contend in that regard, in particular, that the interpretation of Article 260(3) TFEU which they advocate follows from the wording, origin and aims of that provision, since the provision was intended to apply only in cases of the most serious and clear infringements of the obligation to adopt and notify measures transposing a directive. In addition, they contend that that interpretation is borne out by the scheme adopted within Article 260 TFEU itself and is the only interpretation which does not put the Member States in an extremely difficult situation given that, if the approach advocated by the Commission were followed, the Member States could never be certain that the Commission was not considering imposing a penalty payment on them.

42 They add that the interpretation thus defended is capable of ensuring full compliance with the scope of Article 258 TFEU and that it is the only interpretation which is compatible with the principles of legal certainty and proportionality. It would indeed mean that, where, in the course of proceedings before the Court, a Member State transposed a directive and notified all the measures transposing it to the Commission, the Commission would be required to discontinue its application for an order that that Member State pay a penalty payment or a lump sum. Furthermore, there would be only a marginal risk that the Member States attempt to avoid the application of Article 260(3) TFEU by notifying inaccurate transposition measures.

43 In addition, all the intervening Member States mentioned in paragraph 40 above and the Republic of Poland contend that, in the present case, Article 260(3) TFEU cannot apply since the Commission has not provided a detailed statement of reasons for its decision to request the imposition of financial penalties. Specific reasons for such a decision must be provided in relation to the particular circumstances of each case, since a lump sum may not, in accordance with the case-law of the Court, be imposed automatically. The Commission cannot simply make use, as a matter of principle, of the instrument laid down in Article 260(3) TFEU, without infringing that provision. In addition, a detailed analysis of the elements of each case by the Commission is required since those elements are necessary in order to determine the nature of the financial penalty which should be imposed to prompt the Member State concerned to put an end to the failure to fulfil obligations at issue and in order to establish an amount which is appropriate to the circumstances of the case, as required by the case-law of the Court. It is also unnecessary to aggregate the payment of a lump sum with the payment of a periodic penalty. In any event, the Commission’s approach is likely to result in discrimination between Member States.

44 It must be borne in mind that the first subparagraph of Article 260(3) TFEU provides that when the Commission brings a case before the Court pursuant to Article 258 TFEU on the ground that the Member State concerned has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. In accordance with the second subparagraph of Article 260(3) TFEU, if the Court finds that there is an infringement it may impose a lump sum or penalty payment on the Member State concerned not exceeding the amount specified by the Commission. The payment obligation is to take effect on the date set by the Court in its judgment.

45 As regards the scope of Article 260(3) TFEU, the Court has held that that provision had to be interpreted in a manner which, on the one hand, allows prerogatives held by the Commission for the purposes of ensuring the effective application of EU law and protecting the rights of the defence and the procedural position enjoyed by the Member States under Article 258 TFEU, read in conjunction with Article 260(2) TFEU, to be guaranteed, and, on the other, puts the Court in a position of being able to exercise its judicial function of determining, in a single set of proceedings, whether the Member State in question has fulfilled its obligations to notify the measures transposing the directive in question and, where relevant, assess the seriousness of the declared failure and impose the financial penalty which it considers to be the most suited to the circumstances of the case (judgment of 8 July 2019, Commission v Belgium (Article 260(3) TFEU — High-speed networks), C‑543/17, EU:C:2019:573, paragraph 58).

46 In that context, the Court has interpreted the expression ‘obligation to notify measures transposing a directive’ in Article 260(3) TFEU as referring to the obligation of the Member States to provide sufficiently clear and precise information on the measures transposing a directive. In order to satisfy the obligation of legal certainty and to ensure the transposition of the provisions of that directive in full throughout their territory, the Member States are required to state, for each provision of the directive, the national provision or provisions ensuring its transposition. Once notified, and having also received a correlation table where relevant, it is for the Commission to establish, for the purposes of seeking a financial penalty to be imposed on the Member State in question provided for in Article 260(3) TFEU, whether certain transposition measures are clearly lacking or do not cover all the territory of the Member State in question, bearing in mind that it is not for the Court, in judicial proceedings brought under Article 260(3) TFEU, to examine whether the national measures notified to the Commission ensure a correct transposition of the provisions of the directive in question (judgment of 8 July 2019, Commission v Belgium (Article 260(3) TFEU — High-speed networks), C‑543/17, EU:C:2019:573, paragraph 59).

47 Since, as is apparent from paragraphs 25 and 26 above, it is established that, on the expiry of the period prescribed in the reasoned opinion of 8 December 2017, Romania had not notified to the Commission any measure transposing Directive 2015/849 within the meaning of Article 260(3) TFEU, the failure to fulfil obligations thus declared falls within the scope of that provision.

48 As regards whether, as Romania and the Member States intervening in support of it argue, the Commission must state reasons, on a case-by-case basis, for its decision to request a financial penalty under Article 260(3) TFEU or whether it may take such a decision without stating reasons, in all cases falling with the scope of that provision, it must be borne in mind that, as guardian of the Treaties pursuant to the second sentence of Article 17(1) TEU, the Commission enjoys a discretion to take such a decision.

49 Article 260(3) TFEU cannot be applied in isolation, but must be linked to the commencement of infringement proceedings under Article 258 TFEU. Since the application for a financial penalty under Article 260(3) TFEU is only an ancillary mechanism of the infringement proceedings the effectiveness of which it must ensure and the Commission enjoys a discretion as to whether or not to commence such proceedings, which is not for review by the Court (see, to that effect, judgments of 14 February 1989, Star Fruit v Commission, 247/87, EU:C:1989:58, paragraph 11; of 6 July 2000, Commission v Belgium, C‑236/99, EU:C:2000:374, paragraph 28; and of 26 June 2001, Commission v Portugal, C‑70/99, EU:C:2001:355, paragraph 17), the conditions for applying Article 260(3) TFEU cannot be more restrictive than those governing the implementation of Article 258 TFEU.

50 In addition, it must be pointed out that under Article 260(3) TFEU the Court alone has the power to impose a financial penalty on a Member State. Where the Court takes such a decision at the end of inter partes proceedings, it must state reasons. Consequently, the Commission’s failure to state reasons for its decision to request the Court to apply Article 260(3) TFEU does not affect the procedural guarantees of the Member State in question.

51 Furthermore, the fact that the Commission is not required to state reasons on a case-by-case basis for its decision to seek the imposition of a financial penalty under Article 260(3) TFEU does not relieve it of the obligation to state reasons for the nature and the amount of the financial penalty sought, taking into account in that regard the guidelines which it has adopted, such as those in the Commission’s communications which, although not binding on the Court, contribute to ensuring that the action brought by the Commission is transparent, foreseeable and consistent with legal certainty (see, by analogy with Article 260(2) TFEU, judgment of 30 May 2013, Commission v Sweden, C‑270/11, EU:C:2013:339, paragraph 41 and the case-law cited).

52 That requirement to state reasons for the nature and the amount of the financial penalty sought is all the more important since, unlike the provisions of Article 260(2) TFEU, Article 260(3) TFEU provides that, in the context of proceedings brought under that provision, the Court has only a limited power to assess, since, where it finds that there is an infringement, the Commission’s proposals are binding on it as to the nature of the financial penalty which the Court may impose and the maximum amount of the penalty which it may set.

53 Indeed, the authors of Article 260(3) TFEU not only provided that it is for the Commission to specify ‘the amount of the lump sum or penalty payment to be paid’ by the Member State in question, but also made clear that the Court may only impose a financial penalty payment ‘not exceeding the amount specified’ by the Commission. They therefore established a direct correlation between the penalty sought by the Commission and the penalty that may be imposed by the Court under Article 260(3) TFEU.

54 Nor is the argument that, in accordance with the case-law of the Court, a lump sum must not be imposed automatically (see, in particular, judgment of 9 December 2008, Commission v France, C‑121/07, EU:C:2008:695, paragraph 63) capable of affecting the Commission’s power to commence proceedings under Article 260(3) TFEU in all cases where it considers that an infringement falls within the scope of that provision. That case-law concerns the assessment of the merits of a request by the Commission for the Court to ‘order’ a financial penalty and not the question whether such a request should be made.

55 As regards Romania’s arguments based on its position vis-à-vis the other Member States as regards the transposition of Directive 2015/849, the average duration of the pre-litigation procedures concerning it or the duration of the pre-litigation procedure in the present case, it must be found, first, that those arguments relate not to the applicability of Article 260(3) TFEU to a failure to fulfil obligations such as that at issue, but to the merits of the application for the payment of a lump sum in the present case, which will be assessed at a later stage of this judgment. Secondly, in any event, the considerations which led the Commission to bring the present proceedings against Romania, and to do so on the date of its choosing, cannot prejudice the applicability of Article 260(3) TFEU or the admissibility of the action brought under that provision.

56 It must, therefore, be held that Article 260(3) TFEU applies in a situation such as that at issue in the present case.

57 As regards the amount of the financial penalty to be imposed, the Commission submits, in accordance with the position reflected in point 23 of the 2011 communication, that, since a failure to fulfil the obligation to notify measures transposing a directive is no less serious than a failure to fulfil obligations that may be the subject of the penalties mentioned in Article 260(2) TFEU, the method of calculating the penalties referred to in Article 260(3) TFEU must be the same as that applied in the context of the procedure set out in Article 260(2) TFEU.

58 In the present case, the Commission requests the imposition of a lump sum calculated according to the guidelines in the communication of 13 December 2005, entitled ‘Application of Article [260 TFEU]’ (SEC(2005) 1658), as updated by the communication of 13 December 2017, entitled ‘Updating of data used to calculate lump sum and penalty payments to be proposed by the Commission to the Court of Justice in infringement proceedings’ (C(2017) 8720), the minimum lump sum for Romania being EUR 1 887 000. That minimum lump sum is not, however, to be applied in the present case, since it is lower than the amount which results from calculating the lump sum in accordance with those communications. In order to determine the daily amount forming the basis of that calculation, the standard flat-rate amount of EUR 230 must be multiplied by the coefficient for seriousness, which in the present case is 8 on a scale of 1 to 20, and by the ‘n’ factor of 3.27 for Romania. The daily amount is, therefore, EUR 6 016.80 per day and should be multiplied by the number of days which have elapsed between 27 June 2017, that is the day following the transposition date provided for in Directive 2015/849, and 20 July 2019, the day preceding the date on which that directive was transposed in full, namely 754 days. Accordingly, the lump sum to be imposed amounts to EUR 4 536 667.20.

59 The Commission denies, moreover, that the imposition of a lump sum is an exception and applies only in exceptional circumstances. The late transposition of directives undermines not only the safeguarding of the general interests pursued by EU legislation, where delays are unacceptable, but also and above all the protection of European citizens who enjoy individual rights under that legislation. Furthermore, it is the credibility of EU law as a whole that is threatened when legislative acts take full legal effect in the Member States years later than they should. Consequently, delays in the transposition of directives are special circumstances sufficiently serious to justify the imposition of a lump sum.

60 Romania disputes the Commission’s approach of calculating the amount of penalties to be imposed under Article 260(3) TFEU according to the same criteria and rules as those selected for applying Article 260(2) TFEU. Such an approach is erroneous and disproportionate in the light of the different characteristics of the type of failure to fulfil obligations and of the action brought by the Commission pursuant to one or other of those provisions.

61 In the present case, the coefficient for seriousness chosen by the Commission is excessive, since it is not a question of a failure to comply with a first judgment declaring a failure to fulfil an obligation, or of a failure to transpose Directive 2015/849 into national law, and Romania has cooperated throughout the procedure. As regards the coefficient for duration, Romania contends that it is inappropriate to choose such a coefficient, since the concept of the ‘duration of the infringement’ is fundamentally dependent on the date on which the infringement in question is declared by the Court. In the context of Article 260(3) TFEU, that date is indeed the date of delivery of the Court’s judgment in accordance with Article 258 TFEU. Should the Court not follow that approach, Romania contends that, in order to determine the duration of the infringement, it would be appropriate to take as the reference date the date set in the reasoned opinion, in accordance with the Court’s practice in failures to fulfil obligations under Article 258 TFEU.

62 Having regard to the specific characteristics of the action brought by the Commission on the basis of Article 258 TFEU in conjunction with Article 260(3) TFEU, Romania also contends that it would be more appropriate to establish a minimum amount and a maximum amount of lump sum varying according to the seriousness of the infringement committed by the Member State in question. In order to determine those amounts, all the relevant circumstances should be taken into account. First, a minimum lump sum should be set, well below the Commission’s current proposal, which would apply where the attitude of the Member State concerned has been constructive and cooperative and the infringement is less serious. Secondly, the maximum lump sum should reflect the opposite attitude of the Member State concerned and a more serious infringement. In the present case, the minimum lump sum of EUR 1 887 000 proposed by the Commission is disproportionate in the light of the particular circumstances of the case, Romania’s attitude and conduct and the new minimum lump sum of EUR 1 651 000 proposed in the Commission’s communication of 13 September 2019, entitled ‘Updating of data used to calculate lump sum and penalty payments to be proposed by the Commission to the Court of Justice of the European Union in infringement proceedings’ (OJ 2019 C 309, p. 1). Consequently, should the Court impose a lump sum, it should be reduced considerably and also reflect the fact that, although Law No 129/2019 of 11 July 2019 did not enter into force until 21 July 2019, Directive 2015/849 had already been partially transposed even before the period for transposing it had expired. In addition, even if the Court decided to follow the approach advocated by the Commission, the amount of the lump sum should be reduced by taking into account only the number of days elapsed between the deadline set in the reasoned opinion, that is 8 February 2018 and, as appropriate, the date of cessation of the infringement at issue or the date on which the present judgment is delivered.

63 The Member States intervening in support of Romania contend, in particular, that the amount of the financial penalties imposed pursuant to Article 260(3) TFEU must be set at a lower level than that of the penalties imposed pursuant to Article 260(2) TFEU, since the infringement is less serious than not having complied with a first judgment of the Court declaring a failure to fulfil an obligation. In any event, having regard to all the circumstances of the case, the amount of the lump sum proposed by the Commission should be reduced.

64 As regards, in the first place, the argument that it would be disproportionate to impose a lump sum since, in the course of the proceedings, Romania put an end to the infringement at issue, it must be borne in mind, first, that the failure of a Member State to fulfil its obligation to notify measures transposing a directive, whether by providing no information at all, partial information or by providing insufficiently clear and precise information, may of itself justify recourse to the procedure under Article 258 TFEU in order to establish the failure to fulfil the obligation (judgment of 8 July 2019, Commission v Belgium (Article 260(3) TFEU — High-speed networks), C‑543/17, EU:C:2019:573, paragraph 51). Secondly, the objective pursued by the introduction of the system set out in Article 260(3) TFEU is not only to induce Member States to put an end as soon as possible to a breach of obligations which, in the absence of such a measure, would tend to persist, but also to simplify and speed up the procedure for imposing financial penalties for failures to comply with the obligation to notify a national measure transposing a directive adopted through a legislative procedure, it being specified that, prior to the introduction of such a system, it might be years before a financial penalty was imposed on Member States which had failed to comply in a timely manner with an earlier judgment of the Court and failed to respect their obligations to transpose a directive (judgment of 8 July 2019, Commission v Belgium (Article 260(3) TFEU — High-speed networks), C‑543/17, EU:C:2019:573, paragraph 52).

65 It must be pointed out that, in order to achieve the objective pursued by Article 260(3) TFEU, the authors of that provision provided for two types of financial penalty, the lump sum and the periodic penalty payment.

66 In that regard, it is apparent from the case-law of the Court that application of each of those measures depends on their respective ability to meet the objective pursued according to the circumstances of the case. While the imposition of a penalty payment seems particularly suited to inducing a Member State to put an end as soon as possible to a breach of obligations which, in the absence of such a measure, would tend to persist, the imposition of a lump sum is based more on 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 (see, by analogy with Article 260(2) TFEU, judgment of 12 July 2005, Commission v France, C‑304/02, EU:C:2005:444, paragraph 81).

67 In those circumstances, an application which, as in the present case, seeks the imposition of a lump sum cannot be dismissed as disproportionate solely because it concerns a failure to fulfil obligations which, having persisted over time, came to an end by the time of the Court’s examination of the facts.

68 As regards, in the second place, whether or not a financial penalty should be imposed in the present case, it must be borne in mind that, in each case, it is for the Court to determine, in the light of the circumstances of the case before it and according to the degree of persuasion and deterrence which appears to it to be required, the financial penalties that are appropriate, in particular, for preventing the recurrence of similar infringements of EU law (judgment of 8 July 2019, Commission v Belgium (Article 260(3) TFEU — High-speed networks), C‑543/17, EU:C:2019:573, paragraph 78).

69 In the present case, it must be found that, notwithstanding the fact that Romania cooperated with the Commission services throughout the pre-litigation procedure and made efforts which enabled it, in the course of the proceedings, to put an end to the infringement complained of, all the legal and factual circumstances culminating in the breach of obligations established — namely, the total failure, by the expiry of the period prescribed in the reasoned opinion and even at the date on which the present action was brought, to notify the measures necessary to transpose Directive 2015/849 — indicate that if the future repetition of similar infringements of EU law is to be effectively prevented, a dissuasive measure must be adopted, such as a lump sum payment (see, to that effect, by analogy with Article 260(2) TFEU, judgments of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 142, and of 4 December 2014, Commission v Sweden, C‑243/13, not published, EU:C:2014:2413, paragraph 63).

70 That conclusion is not called in question by the line of argument set out in paragraph 55 above. First, as pointed out in that paragraph, it is for the Commission, in particular, to assess whether or not proceedings should be brought against a Member State and to choose the time at which it initiates the infringement proceedings against that Member State. Secondly, the aims of the pre-litigation procedure, namely to give the Member State concerned an opportunity to comply with its obligations under EU law and to avail itself of its right to defend itself against the objections formulated by the Commission (judgment of 19 September 2017, Commission v Ireland (Registration tax), C‑552/15, EU:C:2017:698, paragraph 28 and the case-law cited), require the Commission to allow Member States a reasonable period to reply to letters of formal notice and to comply with reasoned opinions, or, where appropriate, to prepare their defence. In order to determine whether the period allowed is reasonable, account must be taken of all the circumstances of the case. Thus, very short periods may be justified in particular circumstances, especially where there is an urgent need to remedy a breach or where the Member State concerned is fully aware of the Commission’s views long before the procedure starts (judgment of 13 December 2001, Commission v France, C‑1/00, EU:C:2001:687, paragraph 65).

71 The Court points out that, in the present case, it is not argued that the deadlines for responding set in the letter of formal notice and the reasoned opinion were particularly short or unreasonable. Moreover, it is apparent from the agreed facts in paragraphs 4 and 5 above that Romania must be considered to have been fully aware, from at least 27 June 2017, of the fact that it had failed to fulfil its obligations under Article 67 of Directive 2015/849.

72 As regards, in the third place, the calculation of the lump sum which it is appropriate to impose in the present case, it must be borne in mind that, in exercising its discretion in the matter, as delimited by the Commission’s proposals, it is for the Court to fix the amount of the lump sum which may be imposed on a Member State pursuant to Article 260(3) TFEU, in an amount appropriate to the circumstances and proportionate to the failure to fulfil obligations. Relevant considerations in that respect include factors such as the seriousness of the failure to fulfil obligations, the length of time for which the failure has persisted and the relevant Member State’s ability to pay (see, by analogy with Article 260(2) TFEU, judgment of 12 November 2019, Commission v Ireland (Derrybrien Wind Farm), C‑261/18, EU:C:2019:955, paragraph 114 and the case-law cited).

73 As regards, first, the seriousness of the infringement, it must be borne in mind that the obligation to adopt national measures for the purposes of ensuring that a directive is transposed in full and the obligation to notify those measures to the Commission are fundamental obligations incumbent on the Member States in order to ensure optimal effectiveness of EU law and that failure to fulfil those obligations must, therefore, be regarded as definitely serious (judgment of 8 July 2019, Commission v Belgium (Article 260(3) TFEU — High-speed networks), C‑543/17, EU:C:2019:573, paragraph 85). Furthermore, Directive 2015/849 is an important instrument for ensuring that the European Union’s financial system is effectively protected against the threats from money laundering and terrorist financing. The absence or inadequacy of such protection of the European Union’s financial system must be considered particularly serious in the light of its effects on public and private interests within the European Union.

74 Although Romania did, in the course of the proceedings, put an end to the failure to fulfil obligations complained of, the fact remains that that failure to fulfil obligations existed on the expiry of the period prescribed in the reasoned opinion of 8 December 2017, namely 8 February 2018, with the result that the effectiveness of EU law was not ensured at all times.

75 The seriousness of that failure is also reinforced by the fact that, as at that date, Romania had still not adopted the slightest measure transposing Directive 2015/849.

76 The arguments put forward by Romania to explain the delay in transposing Directive 2015/849, namely the complexity of the directive’s provisions, the painstaking legislative process leading to its enactment and the intention to ensure that that directive was correctly transposed are not such as to affect the seriousness of the infringement at issue since, according to settled case-law, a Member State cannot rely on practices or circumstances existing in its internal legal order to justify its failure to comply with the obligations and time limits laid down by EU directives, nor therefore the late or incomplete implementation of directives. Likewise, it is irrelevant that the failure of a Member State to fulfil its obligations is the result of technical difficulties encountered by it (see, in particular, judgment of 7 May 2002, Commission v Netherlands, C‑364/00, EU:C:2002:282, paragraph 10 and the case-law cited).

77 As regards, secondly, the duration of the infringement, it should be recalled that that duration must, as a rule, be assessed by reference to the date on which the Court assesses the facts, not the date on which proceedings are brought before it by the Commission (see, to that effect, judgment of 8 July 2019, Commission v Belgium (Article 260(3) TFEU — High-speed networks), C‑543/17, EU:C:2019:573, paragraph 87). That assessment of the facts must be considered as being made at the date of conclusion of the proceedings.

78 In the present case, it is not disputed that the infringement at issue came to an end on 21 July 2019, that is before the conclusion of the proceedings.

79 As regards the beginning of the period which must be taken into account in order to set the amount of the lump sum to be imposed pursuant to Article 260(3) TFEU, it must be stated that, unlike the Court’s holding in paragraph 88 of its judgment of 8 July 2019, Commission v Belgium (Article 260(3) TFEU — High-speed networks) (C‑543/17, EU:C:2019:573), in relation to the determination of a daily penalty payment to be imposed, the relevant date for evaluating the duration of the infringement at issue for the purposes of imposing a lump sum pursuant to Article 260(3) TFEU is not the date of expiry of the period prescribed in the reasoned opinion, but the date of expiry of the transposition period laid down in the directive in question.

80 As the Advocate General observed in point 74 of his Opinion, the objective of that provision is to encourage Member States to transpose directives within the deadlines set by the EU legislature and to ensure the full effectiveness of EU legislation. Thus, although the trigger for applying the procedure laid down in Article 260(2) TFEU is the fact that a Member State has failed to fulfil its obligations arising from a judgment finding an infringement, the trigger for applying the procedure laid down in Article 260(3) TFEU is the fact that a Member State has failed to fulfil its obligation to adopt and to notify the measures transposing a directive at the latest by the date laid down therein.

81 Any other approach would indeed be tantamount to calling into question the effectiveness of the provisions of directives setting the date on which the measures transposing those directives must enter into force. Since, according to the settled case-law of the Court, in order for a letter of formal notice to be issued, in accordance with the first paragraph of Article 258 TFEU, a prior failure by the Member State concerned to fulfil an obligation owed by it must be capable of being legitimately alleged by the Commission (judgment of 5 December 2019, Commission v Spain (Waste management plans), C‑642/18, EU:C:2019:1051 paragraph 17 and the case-law cited), Member States which had not transposed a directive as at the date laid down therein would, in that scenario, enjoy at all events an additional transposition period, whose duration would moreover vary according to the speed with which the Commission initiated the pre-litigation procedure, without its nonetheless being possible to take into account the duration of that period when evaluating the duration of the failure to fulfil the obligations at issue. However, it is established that the date from which the full effectiveness of a directive must be ensured is the date of transposition laid down in the directive itself, not the date of expiry of the period prescribed in the reasoned opinion.

82 Contrary to what Romania contends, this approach is not likely to compromise the effectiveness of the pre-litigation procedure provided for in the first subparagraph of Article 258 TFEU. In a situation such as that at issue in the present case, the Member State in question cannot validly maintain that it was unaware of having failed to fulfil, as from the date of transposition laid down in the directive in question, its obligations under that directive. In addition, the protection of the rights of defence of the Member State in question guaranteed by the pre-litigation procedure cannot result in that Member State being protected against all financial consequences stemming from that failure to fulfil obligations for the period preceding the deadline set in the reasoned opinion.

83 Consequently, in order to ensure that EU law is fully effective, it is appropriate, when evaluating the duration of the infringement with a view to determining the amount of the lump sum to be imposed pursuant to Article 260(3) TFEU, to take into account the date of transposition provided for by the directive at issue itself.

84 In the present case, it is not in dispute that, as at the date of transposition laid down in Article 67 of Directive 2015/849, namely 26 June 2017, Romania had not adopted the laws, regulations and administrative provisions necessary to ensure that that directive was transposed and had not, therefore, notified to the Commission the measures transposing it. It follows that the failure to fulfil obligations at issue, which did not come to an end until 21 July 2019, persisted for just over two years.

85 Thirdly, as regards the ability to pay of the Member State concerned, it is apparent from the case-law of the Court that it is necessary to take account of recent trends in that Member State’s gross domestic product (GDP) at the time of the Court’s examination of the facts (see, by analogy with Article 260(2) TFEU, judgment of 12 November 2019, Commission v Ireland (Derrybrien Wind Farm), C‑261/18, EU:C:2019:955, paragraph 124 and the case-law cited).

86 Having regard to all the circumstances of the present case and in the light of the Court’s discretion under Article 260(3) TFEU, which provides that the Court cannot, as regards the payment of the lump sum imposed by it, exceed the amount specified by the Commission, it must be held that the effective prevention of future repetition of similar infringements to that of Article 67 of Directive 2015/849 affecting the full effectiveness of EU law requires the imposition of a lump sum in the amount of EUR 3 000 000.

87 Romania must, therefore, be ordered to pay the Commission a lump sum of EUR 3 000 000.

88 Under Article 138(1) of the Rules of Procedure of the Court, 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 and Romania has been unsuccessful, the latter must be ordered to pay the costs.

89 In accordance with Article 140(1) of those rules, under which Member States which have intervened in the proceedings are to bear their own costs, the Kingdom of Belgium, the Republic of Estonia, the French Republic and the Republic of Poland must be ordered to bear their own costs.

1. Declares that, by having failed to adopt, on the expiry of the period prescribed in the reasoned opinion of 8 December 2017, the laws, regulations and administrative provisions necessary to comply with Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC, and, therefore, by having failed to notify those provisions to the European Commission, Romania has failed to fulfil its obligations under Article 67 of Directive 2015/849;

2. Orders Romania to pay the European Commission a lump sum in the amount of EUR 3 000 000;

4. Orders the Kingdom of Belgium, the Republic of Estonia, the French Republic and the Republic of Poland to bear their own costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Commission v Romania (Lutte contre le blanchiment de capitaux) (Failure of a Member State to fulfil obligations - money laundering or terrorist financing - Judgment) [2020] EUECJ C-549/18 (16 July 2020) URL: http://www.bailii.org/eu/cases/EUECJ/2020/C54918.html Cite as: [2021] 1 CMLR 16, ECLI:EU:C:2020:563, [2020] EUECJ C-549/18, EU:C:2020:563

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