Opinion of Advocate General Tanchev delivered on 5 March 2020.

JurisdictionEuropean Union
Celex Number62018CC0549
ECLIECLI:EU:C:2020:173
Date05 March 2020
CourtCourt of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 5 March 2020 (1)

Case C549/18

European Commission

v

Romania

(Failure of a Member State to fulfil obligations — Article 258 TFEU — Directive (EU) 2015/849 — Anti-money laundering — Article 260(3) TFEU — Failure to notify measures transposing a directive adopted under a legislative procedure — Financial penalties — Lump sum payment)






I. Introduction

1. In the present case, the European Commission has brought infringement proceedings against Romania under Article 258 TFEU for failing to adopt the necessary measures to transpose, by 26 June 2017, 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 (2) or, in any event, failing to notify those measures to the Commission.

2. Moreover, pursuant to Article 260(3) TFEU, the Commission asks the Court to impose on Romania a lump sum payment, ultimately set at EUR 4 536 667.20, for breach of its obligation to notify measures transposing Directive 2015/849. It also initially requested a daily penalty payment of EUR 21 974.40, but withdrew that request in the course of the proceedings.

3. Consequently, the present case provides the Court with the opportunity to develop its case-law on the application of Article 260(3) TFEU following from the landmark judgment of 8 July 2019, Commission v Belgium (Article 260(3) TFEU — High-speed networks). (3) Article 260(3) TFEU is an important instrument introduced by the Treaty of Lisbon which allows the Commission to bring infringement proceedings before the Court pursuant to Article 258 TFEU on the grounds that a Member State has ‘failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure’, and ask the Court to impose financial penalties on that Member State at the same time.

4. The present case is being heard by the Court in parallel with another case, Commission v Ireland (C‑550/18), in which my Opinion is being delivered today. Both cases raise two key issues concerning, first, whether the Commission must give reasons for its decision to have recourse to Article 260(3) TFEU and, second, the assessment of lump sum payments under that provision. This case also raises distinct issues relating to whether measures notified in the course of the proceedings amount to the fulfilment of obligations for the purposes of Articles 258 and 260(3) TFEU.

5. In this Opinion, I shall affirm that Romania has failed to fulfil its obligations under Article 258 TFEU, and propose that the Court order it to pay a lump sum payment under Article 260(3) TFEU.

II. Legal framework

6. Article 67(1) of Directive 2015/849 provides:

‘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.’

7. Pursuant to Article 1(42) of Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and amending Directives 2009/138/EC and 2013/36/EU, (4) Article 67(1) of Directive 2015/849 was replaced by the following wording:

‘1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 26 June 2017.

Member States shall apply Article 12(3) as of 10 July 2020.

Member States shall set up the registers referred to in Article 30 by 10 January 2020 and the registers referred to in Article 31 by 10 March 2020 and the centralised automated mechanisms referred to in Article 32a by 10 September 2020.

Member States shall immediately communicate the text of the measures referred to in this paragraph 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.’

III. The pre-litigation procedure and the proceedings before the Court

8. Not having been notified by the deadline of 26 June 2017 of any measures transposing Directive 2015/849, the Commission sent Romania a letter of formal notice dated 18 July 2017, requesting it to take the necessary action within two months of receipt of that letter.

9. In its response by letter dated 19 September 2017, Romania informed the Commission that the transposition measures would be adopted in December 2017.

10. By reasoned opinion dated 7 December 2017, the Commission stated that Romania had still not notified any measures transposing Directive 2015/849, and requested it to do so within a period of two months of receipt of that reasoned opinion.

11. Following rejection of its requests for an extension of the deadline for responding to that reasoned opinion, Romania submitted its reply by letter dated 8 February 2018, indicating that legislation transposing Directive 2015/849 would be adopted in May 2018.

12. Taking the view that Romania had still not transposed Directive 2015/849 or given notification of any transposition measures, the Commission decided, on 19 July 2018, to bring infringement proceedings before the Court.

13. By its application, lodged on 27 August 2018, the Commission brought the present action on the basis of Articles 258 and 260(3) TFEU, claiming that the Court should:

– first, declare that, by failing to adopt, by 26 June 2017, the measures necessary to transpose Directive 2015/849 or, in any event, by failing to notify those measures, Romania has failed to fulfil its obligations under Article 67 of that directive;

– second, order Romania to pay a penalty of EUR 21 974.40 for each day of delay in complying with its obligation to notify the measures necessary to ensure transposition of Directive 2015/849, with effect from the day on which judgment is delivered in the present case;

– third, order Romania to pay a lump sum, based on a daily amount of EUR 6 016.80, multiplied by the number of days which have elapsed from the day following the expiry of the transposition deadline laid down in the directive in question until the day on which Romania fulfils its obligations or, if it fails to fulfil those obligations, until the day on which the Court delivers its judgment, subject to exceeding a minimum lump sum of EUR 1 887 000; and

– fourth, order Romania to pay the costs.

14. In its defence, lodged on 7 November 2018, Romania claims that the Court should:

– first, dismiss the Commission’s action in part, having regard to the partial transposition of that directive by the national legislation in force;

– second, dismiss the Commission’s action in so far as it seeks to impose financial penalties on it under Article 260(3) TFEU; and

– third, in the alternative, dismiss the Commission’s application for the imposition of a lump sum and, in any event, reduce the amount of the penalties requested by the Commission to an extent reflecting the particular features of the infringement and the conduct of Romania.

15. The Commission and Romania also lodged a reply and a rejoinder on 17 December 2018 and 15 February 2019, respectively.

16. By letter dated 28 August 2019, the Commission informed the Court that it was partially withdrawing its action. It no longer requested the imposition of a daily penalty payment, since that request had become devoid of purpose following Romania’s full transposition of Directive 2015/849 by national legislation notified on 18 July 2019 and which entered into force on 21 July 2019. Taking the latter date as the day on which Romania fulfilled its obligations, the Commission fixed the lump sum sought at EUR 4 536 667.20. Romania submitted its observations concerning that letter on 30 September 2019.

17. By decisions of 6 December 2018 and 7 January 2019, Belgium, Estonia, France, Ireland and Poland were granted leave to intervene in support of the form of order sought by Romania. On 14 February 2019, Ireland withdrew its application to intervene in the present case. The Commission submitted observations on the statements in intervention submitted by Belgium, Estonia, France and Poland on 11 June 2019.

18. A hearing was held on 10 December 2019 at which the Commission, Estonia and Romania presented oral argument.

IV. Summary of the arguments of the parties

A. The failure to fulfil obligations under Article 258 TFEU

19. The Commission submits that Romania failed to adopt by the deadline of 26 June 2017 set in Article 67 of Directive 2015/849 the necessary transposition measures or to notify it of those measures.

20. The Commission further contends that the 40 national measures notified in October 2018, after the lodging of the present action, and mentioned by Romania in its defence (‘the notified measures’) do not ensure partial transposition of Directive 2015/849. Those measures, which transpose previous directives repealed by Directive 2015/849, (5) are not sufficient to transpose Directive 2015/849, since there are significant differences between those directives, and Directive 2015/849 introduces many new elements. None of the notified measures refers to Directive 2015/849 — 37 of which were adopted before the adoption of that directive — and Romania has not...

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